United States
Environmental Protection
Agency
Research and Development
Office of Energy, Minerals, and
Industry
Washington DC 20460
EPA 600 7 79 060a
March 1 979
Energy from the
West
Energy Resource
Development
Systems Report
Volume I:
Introduction and
General Social
Controls
Interagency
Energy/Environment
R&D Program Report
EP 630/7
79-060a
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RESEARCH REPORTING SERIES
Research reports of the Office of Research ana Development, U S Environmental
Protection Agency, have been grouped into nine series These nine broad cate-
gories were established to facilitate further devalopment and application of en-
vironmental technology Elimination of traditional grouping was consciously
planned to foster technology t-ans er and a maximum interface m related fields
The nine series are
1 Environmental Health E'fects Research
2 Environmental Protection Tecnnolog\
3 Ecological Research
4 Environmental Mon.tonrg
5 Socioeconomic Environmental Studies
6 Scientific and Technical Assessment Reports (STAR)
7 Interagency Energy-Environment Research and Development
8 "Special" Reports
9 Miscellaneous Reports
This report has been assigned to the INTERAGENCY ENERGY-ENVIRONMLNF
RESEARCH AND DEVELOPMENT series Reports in this series result from the
effort funded under the 17-agency Federal Energy/Environment Research ana
Development Program These studies relate to EPA's mission to protect the public
health and welfare from adverse ejects of pollutants associated with energy sys
terns The goal of the Program is to assure the rapid development of domestic
energy supplies in an environmentally-compatible manner by providing the nee
essary environmental data and control technology Investigations include analy-
ses of the transport of energy-related pollutants and their health and ecological
effects, assessments o', and development of, contro! technologies for energy
systems, and integrated assessments of a wide range of energy-related environ-
mental 'Ssues
This document is available to the public throug i the \iationai Technu: ai
tion Service, Springfield, Virginia 22161
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Energy From the West
Energy Resource Development
Systems Report
Volume I: Introduction and General Social Controls
By
Science and Public Policy Program
University of Oklahoma
Irvin L. White Edward J. Malecki
Michael A. Chartock Edward B. Rappaport
R. Leon Leonard Robert W. Rycroft
Steven C. Ballard Rodney K. Freed
Martha Gilliland Gary D. Miller
Timothy A. Hall
Managers,
Energy Resource Development Systems
R. Leon Leonard, Science and Public Policy
University of Oklahoma
Clinton E. Burklin
C. Patrick Bartosh Gary D. Jones
Clinton E. Burklin William J. Moltz
William R. Hearn Patrick J. Murin
Prepared for:
Office of Research and Development
U.S. Environmental Protection Agency
Project Officer:
Steven E. Plotkin
Office of Energy, Minerals and Industry
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DISCLAIMER
This report has been reviewed by the Office of Energy,
Minerals and Industry, U.S. Environmental Protection Agency,
and approved for publication. Approval does not signify that
the contents necessarily reflect the views and policies of the
U.S. Environmental Protection Agency, nor does mention of trade
names or commercial products constitute endorsement or recommen-
dation for use.
I!
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FORWARD
The production of electricity and fossil fuels inevitably
impacts Man and his environment. The nature of these impacts
must be thoroughly understood if balanced judgements concerning
future energy development in the United States are to be made.
The Office of Energy, Minerals and Industry (OEMI), in its role
as coordinator of the Federal Energy/Environment Research and
Development Program, is responsible for producing the informa-
tion on health and ecological effects - and methods for miti-
gating the adverse effects - that is critical to developing the
Nation's environmental and energy policy. OEMI's Integrated
Assessment Program combines the results of research projects
within the Energy/Environment Program with research on the
socioeconomic and political/institutional aspects of energy
development, and conducts policy - oriented studies to identify
the tradeoffs among alternative energy technologies, development
patterns, and impact mitigation measures.
The Integrated Assessment Program has supported several
"technology assessments" in fulfilling its mission. Assess-
ments have been supported which explore the impact of future
energy development on both a nationwide and a regional scale.
Current assessments include national assessments of future
development of the electric utility industry and of advanced
coal technologies (such as fluidized bed combustion). Also,
the Program is conducting assessments concerned with multiple-
resource development in two "energy resource areas":
o Western coal states
o Lower Ohio River Basin
This report, which describes the technologies likely to be
used for developing six energy resources in eight western
states, is one of three major reports produced by the "Tech-
nology Assessment of Western Energy Resource Development"
study. (The other two reports are an impact analysis report
and a policy analysis report.) The report is divided into six
volumes. The first volume describes the study, the organization
of this report and briefly outlines laws and regulations which
affect the development of more than one of the six resources
considered in the study. The remaining five volumes are resource
specific and describe the resource base, the technological
activities such as exploration, extraction and conversion for
developing the resource, and resource specific laws and regula-
if i
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tions. This report is both a compendium of information and a
planning handbook. The descriptions of the various energy
development technologies and the extensive compilations of
technical baseline information are written to be easily under-
stood by laypersons. Both professional planners and interested
citizens should find it quite easy to use the information
presented in this report to make general but useful comparisons
of energy technologies and energy development alternatives,
especially when this report is used in conjunction with the
impact and policy analysis reports mentioned above.
Your review and comments on these reports are welcome.
Such comments will help us to improve the usefulness of the
products produced by our Integrated Assessment Program.
^uuxx
Steven R. RezneK
Acting Deputy Assistant Administrator
for Energy, Minerals and Industry
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PREFACE
This Energy Resource Development System (ERDS) report has
been prepared as part of "A Technology Assessment of Western
Energy Resource Development" being conducted by an interdisciplin-
ary research team from the Science and Public Policy Program
(S&PP) of the University of Oklahoma for the Office of Energy,
Minerals and Industry (OEMI), Office of Research and Development,
U.S. Environmental Protection Agency (EPA). This study is one of
several conducted under the Integrated Assessment Program estab-
lished by OEMI in 1975. Recommended by an interagency task
force, the purpose of the Program is to identify economically,
environmentally, and socially acceptable energy development
alternatives. The overall purposes of this particular study were
to identify and analyze a broad range of consequences of energy
resource development in the western U.S. and to evaluate and
compare alternative courses of action for dealing with the pro-
blems and issues either raised or likely to be raised by develop-
ment of these resources.
The Project Director was Irvin L.(Jack) White, Assistant
Director of S&PP and Professor of Political Science at the Univers-
ity of Oklahoma. White is now Special Assistant to Dr. Stephen
J. Gage, FPA's Assistant Administrator for Research and Develop-
ment. R. Leon Leonard, now a senior scientist with Radian Corpora-
tion in Austin, Texas, was a Co-Director of the research team,
Associate Professor of Aeronautical, Mechanical, and Nuclear
Engineering and a Research Fellow in S&PP at the University of
Oklahoma. Leonard was responsible for editing and managing the
production of this report. EPA Project Officer was Steven E.
Plotkin, Office of Energy, Minerals and Industry, Office of
Research and Development. Plotkin is now with the Office of
Technology Assessment. Other S&PP team members are: Michael A.
Chartock, Assistant Professor of Zoology and Research Fellow in
S&PP and the other Co-Director of the team; Steven C. Ballard,
Assistant Professor of Political Science and Research Fellow in
S&PP; Edward J. Malecki, Assistant Professor of Geography and
Research Fellow in S&PP; Edward B. Rappaport, Visiting Assistant
Professor of Economics and Research Fellow in S&PP; Frank J.
Calzonetti, Research Associate (Geography) in S&PP; Timothy A.
Hall, Research Associate (Political Science); Gary D. Miller,
Graduate Research Assistant (Civil Engineering and Environmental
Sciences); and Mark S. Eckert, Graduate Research Assistant (Geo-
graphy) .
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Chapters 3-7 were prepared by the Radian Corporation, Austin,
Texas, under subcontract to the University of Oklahoma. In each
of these chapters, Radian is primarily responsible for the des-
cription of the resource base and the technologies and S&PP is
primarily responsible for the description of laws and regulations.
The Program Manager at Radian was C. Patrick Bartosh. Clinton E.
Burklin was responsible for preparation of these five chapters.
Other contributors at Radian were: William R. Hearn, Gary D.
Jones, William J. Moltz, and Patrick J. Murin.
Additional assistance in the preparation of the ERDS report
was provided by Martha W. Gilliland, Executive Director, Energy
Policies Studies, Inc., El Paso, Texas; Rodney K. Freed, Attorney,
Shawnee, Oklahoma; and Robert W. Rycroft, Assistant Professor of
Political Science, University of Denver, Denver, Colorado.
VI
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ABSTRACT
This report describes the technologies likely to be used
for development of coal/ oil shale, uranium, oil, natural gas,
and geothermal resources in eight western states (Arizona, Color-
ado, Montana, New Mexico, North Dakota, South Dakota, Utah,
and Wyoming). It is part of a three-year "Technology Assess-
ment of Western Energy Resource Development." The study examines
the development of these energy resources in the eight states
from the present to the year 2000. Other reports describe
the analytic structure and conduct of the study, the impacts
likely to result when these resources are developed, and analyze
policy problems and issues likely to result from that develop-
ment. The report is published in six volumes. Volume 1 describes
the study, the technological activities such as exploration,
extraction, and conversion for developing the resource, and
laws and regulations which affect the development of more
than one of the six resources considered in the study. The
remaining five volumes are resource specific: Volume 2, Coal;
Volume 3, Oil Shale; Volume 4, Uranium; Volume 5, Oil and Natural
Gas; and Volume 6, Geothermal. Each of these volumes provides
information on input materials and labor requirements, outputs,
residuals, energy requirements, economic costs, and resource
specific state and federal laws and regulations.
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OVERALL TABLE OF CONTENTS
FOR
THE ENERGY RESOURCE DEVELOPMENT SYSTEMS REPORT
VOLUME I: INTRODUCTION AND GENERAL SOCIAL CONTROLS
PAGE
Chapter 1
ENERGY RESOURCE DEVELOPMENT SYSTEMS
1.1 Introduction 1
1.2 Objectives of the ERDS Document.... 3
1.3 Organization of the ERDS Document.. 4
1.4 Limitations of the ERDS Document... 9
Chapter 2 GENERAL SOCIAL CONTROLS
2.1 Introduction 11
2.2 Environmental Impact Statements.... 11
2.3 Siting and Land Use 19
2. 4 Resource Exploration 29
2.5 Resource Acquisition 38
2. 6 Resource Extraction 48
2.7 Occupational Safety and Health 59
2.8 Air Quality 65
2-9 Water Quality 95
2.10 Water Use 109
2.11 Solid Waste Disposal 135
2.12 Noise Pollution 139
2.13 Transportation and Distribution-... 145
2.14 Conclusions.. 153
VOLUME II: COAL
Chapter 3 THE COAL RESOURCE DEVELOPMENT SYSTEM
3.1 introduction 1
3. 2 Summary 3
3. 3 Coal Resources 12
3.4 A Regional Overview 27
3.5 Exploration.. 37
3.6 Mining 52
3.7 Beneficiatiori 139
3.8 Conversion 174
viii
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OVERALL TABLE OF CONTENTS
(continued)
VOLUME III: OIL SHALE PAGE
Chapter 4 THE OIL SHALE RESOURCE DEVELOPMENT SYSTEM
4.1 Introduction 1
4. 2 Summary 4
4. 3 Resource Description 13
4. 4 Exploration 25
4.5 Mining and Preparation 37
4.6 Processing 142
4. 7 Land Reclamation 297
VOLUME IV: URANIUM
Chapter 5 THE URANIUM RESOURCE SYSTEM
5.1 Introduction 1
5. 2 Uranium Resources 8
5. 3 Exploration 31
5. 4 Mining 64
5.5 Uranium Milling 197
VOLUME V: OIL AND NATURAL GAS
4
Chapter 6 CRUDE OIL RESOURCE DEVELOPMENT SYSTEM
6.1 Introduction 1
6.2 Resource Description of Western
Crude Oil 8
6.3 Exploration.... 14
6.4 Crude Oil Production 57
6 . 5 Transportation 144
Chapter 7 THE NATURAL GAS RESOURCE DEVELOPMENT SYSTEM
7.1 Introduction 146
7.2 Resource Description of the Western
Natural Gas 151
7. 3 Exploration 157
7.4 Natural Gas Production 165
7.5 Transportation 201
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OVERALL TABLE OF CONTENTS
(continued)
VOLUME VI: GEOTHERMAL PAGE
Chapter 8 THE GEOTHERMAL RESOURCE DEVELOPMENT SYSTEM
8.1 Introduction 1
8. 2 Summary 6
8.3 Resource Characteristics 13
8.4 Exploration 40
8.5 Extraction: Drilling 68
8.6 Extraction: Production 113
8.7 Uses of Geothermal Energy 146
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TABLE OF CONTENTS
VOLUME I
CHAPTER 1: ENERGY RESOURCE DEVELOPMENT SYSTEMS Page
1.1 INTRODUCTION 1
1.1.1 Relation to the Rest of the Study 1
1.2 OBJECTIVES OF THE ERDS DOCUMENT.
1.3 ORGANIZATION OF THE ERDS DOCUMENT 4
1.3.1 General Social Controls 4
1.3.2 Energy Resource Development Systems 6
1.3.2.1 Resource Base Description 6
1.3.2.2 Technological Activity
Descriptions 7
1.3.2.3 Descriptions of Inputs and
Outputs 7
1.3.2.4 Social Controls Descrip-
tions 8
1.4. LIMITATIONS OF THE ERDS DOCUMENT 9
x!
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TABLE OF CONTENTS (CONTINUED)
VOLUME I
CHAPTER 2: GENERAL SOCIAL CONTROLS p
2 .1 INTRODUCTION 11
2.2 ENVIRONMENTAL IMPACT STATEMENTS 11
2.2.1 Federal Controls 12
2.2.1.1 Legal Framework 12
2.2.1.2 Administrative Authority 13
2.2.1.3 Regulatory Provisions 15
2.2.2 Indian Controls 16
2.2.3 State Controls 16
2.3 SITING AND LAND USE 19
2.3.1 Federal Controls 20
2.3.1.1 Legal Framework 20
2.3.1.2 Administrative Authority 22
2.3.1.3 Regulatory Provisions 22
2.3.2 Indian Controls 23
2.3.3 State Controls 24
2.4 RESOURCE EXPLORATION 29
2.4.1 Federal Controls 30
2.4.1.1 Legal Framework 30
2.4.1.2 Administrative Authority 33
2.4.1.3 Regulatory Provisions 34
2.4.2 Indian Controls 36
2.4.3 State Controls 37
xii
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TABLE OF CONTENTS (CONTINUED)
VOLUME I
Paqe
2.5 RESOURCE ACQUISITION 38
2.5.1 Federal Controls 39
2.5.1.1 Legal Framework 39
2.5.1.2 Administrative Authority 41
2.5.1.3 Regulatory Provisions 43
2.5.2 Indian Controls 46
2.5.3 State Controls 47
2 . 6 RESOURCE EXTRACTION 48
2.6.1 Federal Controls 49
2.6.1.1 Legal Framework 49
2.6.1.2 Administrative Authority 50
2.6.1.3 Regulatory Provisions 51
2.6.2 Indian Controls 52
2.6.3 State Controls 53
2. 7 OCCUPATIONAL SAFETY AND HEALTH 59
2.7.1 Federal Controls 59
2.7.1.1 Legal Framework 59
2.7.1.2 Administrative Authority 62
2.7.1.3 Regulatory Provisions 63
2.7.2 State Controls 64
2.8 AIR QUALITY 65
2.8.1 Federal Controls 65
2.8.1.1 Legal Framework 65
XIII
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TABLE OF CONTENTS (CONTINUED)
VOLUME I
Page
2.8.1.2 Administrative Authority....,, 67
2.8.1.3 Regulatory Provisions 68
2.8.2 Indian Controls 73
2.8.3 State Controls 74
2.9 WATER QUALITY 95
2.9.1 Federal Controls 96
2.9.1.1 Legal Framework 96
2.9.1.2 Administrative Authority 101
2.9.1.3 Regulatory Provisions 102
2.9.2 Indian Controls 106
2.9.3 State Controls 107
2.10 WATER USE 109
2.10.1 Federal Controls 125
2.10.1.1 Legal Framework 125
2.10.1.2 Administrative Authority 130
2.10.1.3 Regulatory Provisions 131
2.10.2 Indian Controls 132
2.10.3 State Controls 133
2.11 SOLID WASTE DISPOSAL 135
2.11.1 Federal Controls 135
2.11.1.1 Legal Framework 135
2.11.1.2 Administrative Authority 136
2.11.1.3 Regulatory Provisions 137
xiv
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TABLE OF CONTENTS (CONTINUED)
VOLUME I
Page
2.11.2 State Controls 138
2.12 NOISE POLLUTION 139
2.12.1 Federal Controls 139
2.12.1.1 Legal Framework 139
2.12.1.2 Administrative Authority 142
2.12.1.3 Regulatory Provisions 142
2.12.2 State Controls 144
2.13 TRANSPORTATION AND DISTRIBUTION 145
2.13.1 Federal Controls 145
2.13.1.1 Legal Framework 145
2.13.1.2 Administrative Authority 149
2.13.1.3 Regulatory Provisions 151
2.13.2 State Controls 153
2.14 CONCLUSIONS 154
xv
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LIST OF FIGURES
VOLUME I
CHAPTER 1: ENERGY RESOURCE DEVELOPMENT SYSTEMS
Number Page
1-1 The Eight-State Study Area and Six Sites 2
xv i
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LIST OF TABLES
VOLUME I
CHAPTER 1: ENERGY RESOURCE DEVELOPMENT SYSTEMS
Number
1.1 DEVELOPMENT ALTERNATIVES , 3
CHAPTER 2: GENERAL SOCIAL CONTROLS
Number Page
2-1 STATUS OF THE STATE ENVIRONMENTAL PROTECTION
CONTROLS, 1975 18
2-2 STATUS OF STATE LAND-USE CONTROLS, 1975 26
2-3 FEDERAL EXPLORATION CONTROLS 32
2-4 SUMMARY OF THE FEDERAL RESOURCE ACQUISITION
LEGAL FRAMEWORK 40
2-5 SUMMARY OF STATE MINE RECLAMATION CONTROLS 54
2-6 STATUS OF STATE OSHA PROGRAMS 66
2-7 NATIONAL AMBIENT AIR QUALITY STANDARDS 69
2-8 PREVENTION OF SIGNIFICANT DETERIORATION
ALLOWABLE INCREMENTS 70
2-9 AUTOMOTIVE EMISSION STANDARDS 72
2-10 STATE AIR POLLUTION PERMITS 77
2-11 STATE S02 EMISSION STANDARDS 78
2-12 STATE AMBIENT AIR QUALITY STANDARDS FOR SULFUR
DIOXIDES 80
2-13 STATE AMBIENT AIR QUALITY STANDARDS FOR
PARTICULATES 81
2-14 STATE AMBIENT AIR QUALITY STANDARDS FOR
CARBON MONOXIDE 82
2-15 STATE AMBIENT AIR QUALITY STANDARDS FOR
PHOTOCHEMICAL OXIDANTS 83
2-16 STATE AMBIENT AIR QUALITY STANDARDS FOR
HYDROCARBONS 84
2-17 STATE AMBIENT AIR QUALITY STANDARDS FOR
NITROGEN OXIDE 85
xv I i
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LIST OF TABLES (Continued)
VOLUME I
Number
2-18 ADDITIONAL STATE AMBIENT AIR QUALITY STANDARDS ....... 86
2-19 SUMMARY OF STATE EMISSION LIMITATIONS ................ 87
2-20 STATE EMISSION LIMITATIONS FOR VISIBLE
PARTICULATES ......................................... Q8
2-21 STATE EMISSION LIMITATIONS FOR FUGITIVE DUST
PARTICULATES ......................................... 89
2-22 STATE EMISSION LIMITATIONS FOP FUEL BURNING
PARTICULATES ......................................... 90
2-23 STATE EMISSION LIMITATIONS FOR DIESEL ENGINE
PARTICULATES ......................................... 91
2-24 STATE EMISSION LIMITATIONS FOR GASOLINE
ENGINE PARTICULATES .................................. 92
2-25 STATE EMISSION LIMITATIONS FOR GENERAL SULFUR ........ 93
2-26 STATE EMISSION LIMITATIONS FOR CARBON MONOXIDE ....... 93
2-27 STATE EMISSIONS LIMITATIONS FOR ODORS ................ 94
2-28 MAXIMUM ORGANIC AND INORGANIC CONTAMINANT LEVELS
ALLOWABLE IN DRINKING WATER .......................... 98
2-29 MAXIMUM TURBIDITY AND MICROBIOLOGICAL CONTAMINANT
LEVELS ALLOWABLE IN DRINKING WATER ................... 99
2-30 MAXIMUM RADIOACTIVE CONTAMINANT LEVELS ALLOWABLE
IN DRINKING WATER .................................... 100
2-31 MAXIMUM FLOURIDES, CONTAMINANT LEVELS ALLOWABLE
IN DRINKING WATER .................................... 100
2-32 CURRENT EFFLUENT REGULATIONS OF THE FEDERAL
WATER POLLUTION CONTROL ACT .......................... 103
2-33 SECONDARY TREATMENT STANDARDS ........................ 104
2-34 STATE WATER QUALITY STANDARDS FOR DISSOLVED
OXYGEN ............................................... 110
xvil
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LIST OF TABLES (Continued)
VOLUME I
Number Page
2-35 STATE WATER QUALITY STANDARDS FOR NITRATES Ill
2-36 STATE WATER QUALITY STANDARDS FOR PHOSPHATES 112
2-37 STATE WATER QUALITY STANDARDS FOR ACIDITY/
ALKALINITY (pH) 113
2-38 STATE WATER QUALITY STANDARDS FOR TEMPERATURE 114
2-39 STATE WATER QUALITY STANDARDS FOR HEAVY METALS
AND MERCURY 116
2-40 STATE WATER QUALITY STANDARDS FOR TURBIDITY 117
2-41 STATE WATER QUALITY STANDARDS FOR SETTLEABLE
SOLIDS 118
2-42 STATE WATER QUALITY STANDARDS FOR OIL 119
2-43 STATE WATER QUALITY STANDARDS FOR BACTERIA
LEVELS 120
2-44 STATE WATER QUALITY STANDARDS FOR RADIOACTIVITY 121
2-45 STREAM USE CLASSIFICATIONS DESIGNATED IN
STATE WATER QUALITY LAWS 122
2-46 INTERSTATE COMPACTS AND AGREEMENTS 129
2-47 STATE CONTROLS FOR SANITARY WASTE DISPOSAL 140
2-48 FEDERAL NOISE CONTROL STANDARDS 143
2-49 FEDERAL TRANSPORTATION AGENCIES 150
2-50 STATE EMINENT DOMAIN CONTROLS 155
2-51 STATE ELECTRIC TRANSMISSION CONTROLS 156
XIX
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ACKNOWLEDGEMENTS
Rodney K. Freed, Robert W. Rycroft, and R. Leon Leonard had
primary responsibility for preparation of this volume of the
Energy Resource Development Systems (ERDS) Report. All three
worked on the volume while members of the Science and Public Pol-
icy interdisciplinary research team. Freed is now an attorney in
Shawnee, Oklahoma. Dr. Rycroft is now an Assistant Professor at
the University of Denver. Dr. Leonard is now a senior scientist
with the Radian Corporation, Austin, Texas.
The research reported here could not have been completed with-
out the assistance of a dedicated administrative support staff.
Members of the staff are an integral part of the interdisciplinary
team approach employed by the Science and Public Policy Program.
This staff is headed by Janice Whinery, Assistant to the Director,
and Nancy Heinicke, Clerical Supervisor. Staff members are:
Cyndy Allison, Ellen Ladd, Julia Leonard, Patti Mershon, Pam Odell,
Brenda Skaggs, and Judy Williams.
The research support staff is headed by Martha Jordan, Li-
brarian. Research Team Assistants are David Sage, Mary Sutton,
and Diane Dean. Lorna Caraway and Phil Kabrich assisted as Re-
search Team Assistants in the final production of this volume.
Nancy Ballard, graphics arts consultant, designed the title
page.
Steve E. Plotkin, Environmental Protection Agency Project
Officer, has provided continuing support and assistance in the
preparation of this report.
A number of individuals listed below participated in the re-
view of this volume of the ERDS Report and provided information
for its preparation. Although these critiques were extremely
helpful, none of these individuals is responsible for the content
of this volume. This volume is the sole responsibility of the
Science and Public Policy interdisciplinary research team con-
ducting this study.
Mr. Allen Chronister
Attorney Generals' Office
State of Montana
Helena, Montana
Mr. Marius J. Gedgaudas
Planning and Operations Section
Environmental Protection Agency
Denver, Colorado
xx
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Mr. Gregory J. Hobbs, Jr.
First Assistant Attorney
General
Natural Resources Section
State of Colorado
Denver, Colorado
Ms. Sandra Muckleston
Chief Legal Counsel
Department of Health and
Environmental Sciences
State of Montana
Helena, Montana
Mr. William C. Quigley
Assistant Attorney General
State of Utah
Salt Lake City, Utah
Mr. Louis W. Rose
Assistant Attorney General
State of New Mexico
Santa Fe, New Mexico
Ms. Sherrilynn Smith
Assistant Attorney General
State of North Dakota
Bismarck, North Dakota
Mr. Terry Thoem
Office of Energy Activities
Environmental Protection Agency
Denver, Colorado
Mr. David W. Tiistola
Assistant Commerce Counsel
North Dakota Public Service
Commission
Bismarck, North Dakota
xx i
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CHAPTER 1
ENERGY RESOURCE DEVELOPMENT SYSTEMS
1.1 INTRODUCTION
1.1.1 Relation to the Rest of the Study
This Energy Resource Development System (ERDS) report is a
part of a three-year "Technology Assessment of Western Energy
Resource Development." The assessment is being performed for
the office of Energy, Minerals and Industry, Office of Research
and Development, U.S. Environmental Protection Agency by an inter-
disciplinary research team from the Science and Public Policy
Program (S&PP), University of Oklahoma, with the major part of
the work on the ERDS performed under subcontract by the Radian
Corporation in Austin, Texas.
The overall purpose of the study is to attempt to determine
what the consequences of western energy resource development will
be and what can be done about them. Specific objectives are to:
o Identify and describe development alternatives;
° Determine and analyze impacts;
o Identify and define policy problems and issues;
o Identify, evaluate, and compare alternative policies and
implementation strategies;
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o Identify and describe research and data needs.
The study focuses on the development of six energy resources
in the eight-state study area and at the six sites shown in Fig-
ure 1-1. Coal, oil shale,
uranium, oil, natural gas and
geothermal are the six energy
resources being considered;
the technological alterna-
tives being assessed for
developing them are identified
in Table 1-1 and are described
in detail in this report. The
time period^ during which the
consequences of development
are being assessed extends to
the year 2000.
FIGURE 1-1:
THE EIGHT-STATE
STUDY AREA AND
SIX SITES
The impacts likely to
occur when these technologies
are deployed at specific sites
and to produce specified quantities of energy on a region-wide
basis are analyzed and results reported in Energy From the West;
Impact Analysis Report.1 The problems and issues likely to arise
as a consequence of this development and results of an analysis
Results of the impact analysis are given in White, Irvin L.,
et al. Energy From the'West; Impact Analysis Report. Wash-
ington, D.C.: U.S., Environmental Protection Agency, forth-
coming. Preliminary results may be found in White, Irvin L.,
et al. Energy From the West; A Progress Report of a Technology
Assessment of Western Energy Resource Development, 4 vols. and
Executive Summary. Washington, D.C.: U.S., Environmental Pro-
tection Agency, 1977. (NTIS Order Nos.: Vol. I, PB-271 752,
Vol. II, PB-271 753; Vol. Ill, PB-271 754; Vol. IV PB-272 243.)
-2-
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of alternative policies and
strategies for dealing with them
are reported in Energy From the
West: Policy Analysis Report.1
An overall description of the
relationship among these reports
and how the study was conducted
can be found in the work plans
for the study.2
1.2 OBJECTIVES OF THE ERDS
DOCUMENT
This description of the
ERDS considered in the Western
Energy Study characterizes the
energy resources, describes the
technologies required to de-
j
velop those resources, identi-
fies inputs, products and re-
siduals for these technologies,
and discusses the social con-
trols (rules and regulations or
institutional frameworks) which
are applied when these tech-
nologies are deployed.
TABLE 1-1: DEVELOPMENT ALTERNATIVES
Coal:
Surface and Underground Mining
Direct Export by Unit Train and
Slurry Pipeline
Electric Power Generation
Gasification
Liquefaction
Transportation by Pipeline and EHV
Oil Shale:
Underground Mining
Surface Retorting
Modified In-Situ
Transportation by Pipeline
Uranium:
Surface and Solutional Mining
Milling
Transportation by Train
Oil and Natural Gas:
Conventional Drilling and Production
Enhanced Oil Recovery
Transportation by Pipeline
Geothermal:
Hot Water and Hot Rock
Electric Power Generation
Transportation by EHV
EHV = extra-high voltage
Irvin L., et al. Energy From the West: Policy
Analysis Report. Washington, D.C.: U.S., Environmental Protec-
tion Agency, forthcoming.
2White, Irvin L., et al. First Year Work Plan for a Tech-
nology Assessment of Western Eneirgy Resource Development. Wash-
ington, D.C.: U.S., Environmental Protection Agency, 1978.
-3-
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The objective of the ERDS is to provide this descriptive
information as a data base for the assessment in a manner which
will be useful to policymakers, administrators, and the general
public. The purpose is not to provide detailed analytical data
for scientists and engineers. However, in most instances, these
descriptions do provide a data base for those who might wish to
replicate the analyses performed in the technology assessment.
They also provide information for determining the products and
residuals or byproducts from the energy developments considered
in the study.
An effort has been made to provide up-to-date citations to
the technical literature as of the end of 1977. Of course, no
attempt to summarize the breadth of technologies described in
the ERDS can be entirely comprehensive. The data base is some-
times not complete and is often subject to varying interpreta-
tions. However, the document has been extensively reviewed by
those active with the resources and technologies involved to
assure that it is as up-to-date and accurate as possible.
1.3 ORGANIZATION OF THE ERDS DOCUMENT
Chapter 2 provides a brief outline of those laws and regula-
tions applicable to more than one energy resource. The remaining
chapters focus on specific ERDS for coal, oil shale, oil, natural
gas, geothermal and uranium describing the technologies, and re-
source specific social controls.
1.3.1 General Social Controls
The existing legal, administrative and regulatory arrange-
ments, termed "social controls," discussed in Chapter 2 range
-4-
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from the requirements which must be met prior to undertaking
development activities, through the deployment of specific tech-
nologies, to the regulation of the impacts resulting from energy
developments. State and federal controls in the following cate-
gories are included: environmental impact statement requirements;
siting and land use; resource exploration; resource acquisition
(leasing); resource extraction (mining or drilling); occupational
health and safety; air quality; water quality; water use; solid
waste disposal; noise pollution; and transportation and distri-
bution. These categories are not assumed to be sequential devel-
opment steps. They are, instead, laws and regulations affecting
the most significant energy policy issues faced during develop-
ment. As such, they have gaps and overlaps.
At the federal level, the emphasis is on describing the
legal framework (the legislative history and underlying statutory
bases of federal controls), the administrative authority (an
identification of the responsible federal agencies and their
functions), and the regulatory provisions (relevant permits, pro-
cedures, and standards of enforcement for the federal government
and the special jurisdiction of Indian lands). At the state
level, the applicable laws, responsible agencies and regulations
for each of the eight western states (Arizona, Colorado, Montana,
New Mexico, North Dakota, South Dakota, Utah, and Wyoming) are
identified and discussed. Local laws and regulations have not
been included. Wherever appropriate, Chapter 2 describes gaps
and overlaps in federal and state controls as well as the legal
and administrative problems raised by special cases such as
development in Indian lands. However, the discussion of general
social controls emphasizes statutory requirements and does not
elaborate those procedures which have developed through the
interpretation of common law.
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1.3.2 Energy Resource Development Systems
Chapters 3 through 7 are development system descriptions for
the six energy resources considered in the study. The ERDS chap-
ters are organized with an introduction, a description of the
resource base for the region and the nation as a whole, and a
description of technological activities including exploration,
extraction (mining or production) and conversion. Transportation
technologies are not considered. Each of these technological
activities (e.g., exploration) is, in turn, subdivided into a
description of the technologies likely to be used, the inputs
(such as labor, capital and water requirements), the outputs and
residuals (such as electricity, car emissions and water effluents),
and social controls (laws and regulations) specific to that re-
source. The following discussion briefly provides definitions
and a description of the content of each of these subdivisions.
1.3.2.1 Resource Base Description
The resource base section of the ERDS characterizes the re-
source by describing: the "total resources" (the amount of en-
ergy resource within the U.S. or western region, including amounts
not identified, but surmised to exist); the "total reserves" (the
amount of known resources which are economically recoverable
using currently available technology); the chemical and physical
characteristics (for example, the sulfur content or the seam
thickness of a resource); and the location and ownership of the
resource (geographical location, and federal, state or private
ownership, etc.).
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1.3.2.2 Technological Activity Descriptions
The sections describing technological activities identify
and outline the sequence of processes required to develop a re-
source. In the oil ERDS, for example, three activities are in-
volved: exploration, production, and transportation. Each
activity is described in terms of its construction and operation.
For each activity, "technological alternatives" (exploratory
drilling, for example) are described which represent one or more
of the hardware or procedural options which might be deployed.
A combination of technological alternatives is termed a "trajec-
tory" (the sequence of getting a resource to the demand point).
A trajectory which might be deployed in the West would include
exploratory drilling, underground coal mining, on-site conversion
to electricity using a conventional steam power plant with stack
gas scrubbers, and transmission using extra high voltage lines.1
1.3.2.3 Descriptions of Inputs and Outputs
Sections describing the input requirements and products and
"residuals" (byproducts), of a technology are included for each
technological activity. Defined broadly, residuals include both
the inputs and outputs of an activity. Important inputs are man-
power needs, water requirements, or land requirements. Outputs
include such things as air emissions, water effluents, and solid
wastes. The quantities of residuals are expressed both in terms
of the amounts per day for facilities of a standardized size and
per unit of energy.
1A comprehensive summary of alternatives for energy resource
development is found in Kash, Don E., et al. Energy Alternatives:
A Comparative Analysis. Washington, D.C.: Government Printing
Office, 1975.
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In addition to the delineation of important residuals, the
descriptions of inputs and outputs of technological activities
include consideration of energy efficiency and economics. The
energy efficiency is the ratio of the energy output of a process
to the sum of the energy input in fuel or raw resource and the
amount of energy required from external sources. The energy effi-
ciency provides a basis for comparing technological alternatives.
Economic considerations are limited to an identification of
capital, operating and total costs. Capital costs are those for
the construction or purchase of land, facilities and equipment.
Operating costs include, among other factors, labor, materials,
and maintenance. As used in this document, total costs are simply
the sum of the capital and operating costs. Where appropriate,
the costs of output fuels are also included in the economic de-
scriptions of inputs and outputs.
1.3.2.4 Social Controls Descriptions
The descriptions of resource-specific social controls con-
tain the same types of information (laws, agencies, rules, and
procedures) found in Chapter 2. However in the resource-specific
chapters, these controls are described according to the specific
jurisdiction (federal, Indian, or state) in the sequence of de-
velopment (exploration through transportation). Thus, in the
oil ERDS, the social controls for oil exploration on federal,
state, and Indian lands are followed by a discussion of the con-
trols on oil leasing.
-------
1.4 LIMITATIONS OF THE ERDS DOCUMENT
It is important to recognize the inherent difficulties in-
volved in describing energy resource development systems. First,
the data provided in this document are selective; not all avail-
able information could be utilized in this report. Frequently,
in this selection process, more qualitative data was included.
Consequently, the full context of energy development in terms of
quantitative data may not be apparent. Second, many categories
and specific bits of information are not available. In many in-
stances, this document merely reports residuals, for example, as
"negligible" or as only a dashed line. And where data does exist,
much of it is based on extrapolations from either a limited number
of cases or from cases of a different scale (from pilot plant
projects, for example). In either instance, the data may not
accurately represent cases in different locations or under dif-
ferent parameters. Third, most of the computations in this study
are based on specific assumptions which may differ widely from
those used in different analyses. Most residuals data, for ex-
ample, assume certain configurations of control technologies
which prevent or eliminate water effluents. And most of the data
are based on specific input requirements or materials (such as
coal from a particular seam). Thus, comparisons using this data
must be approached with caution. Assumptions which may affect
the residuals data are indicated in each chapter.
Finally, it must be noted that the entire energy resource
development area is one which is subject to rapid technological
and social change. Not only are the specific technological al-
ternatives subject to breakthroughs, but the network of social
controls has been a target of frequent reorganizations. The
creation of the Department of Energy is the latest restructuring
considered in this document.
-9-
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The following chapter discusses the generally applicable
laws and regulations, and the subsequent six chapters discuss
coal, oil shale, uranium, oil, gas, and geothermal respectively,
-10-
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CHAPTER 2
GENERAL SOCIAL CONTROLS
2.1 INTRODUCTION
This chapter describes those social controls (laws and
regulations) applicable to more than one energy resource. The
emphasis is on federal and state legal, administrative and
regulatory arrangements, but Indian controls are also described
where appropriate. No effort was made to identify local ordi-
nances which may affect development. The presentation is some-
what uneven among the various control categories. Air and
water quality regulations are outlined in more detail than are
beneficial water uses and solid waste disposal standards. The
unevenness reflects the stage of governmental involvement in
the promulgation of rules and regulations.
2.2 ENVIRONMENTAL IMPACT STATEMENTS
The procedural requirement of section 102 (2) (C) of the
National Environmental Policy Act (NEPA)l that all federal
agencies prepare a detailed environmental impact statement (EIS)
on all actions significantly affecting the quality of the human
National Environmental Policy Act of 1969, Pub. L. 91-190,
83 Stat. 852.
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environment has fundamentally changed energy resource develop-
ment policy. At first thought to be a rather insignificant
regulation, the EIS requirement has instead served as a major
access point for broadened public participation in and criticism
of government actions. The EIS was designed to insure that
balanced decisionmaking occurs in the "public interest" and that
integrated consideration of technical, economic, environmental,
and social factors is included in the technology/impact review.
In addition, the EIS serves as a sort of "public disclosure law"
for energy and environmental actions.1
2.2.1 Federal Controls
2.2.1.1 Legal Framework
The NEPA was the landmark legislative achievement of the
environmental movement of the 1960s. Enacted in 1969, NEPA was
largely a response to the problem of policy fragmentation among
federal organizations. Environmental policy before NEPA had
been managed by agencies whose primary focus was agriculture,
human health, or economic development, with little coordination
or integration in terms of environmental quality. NEPA estab-
lished a national policy which required all federal agencies to
consider environmental impacts in planning and implementing
their programs. Although no specific compliance provisions were
written into the law, NEPA did mandate a number of "action-
forcing" procedures, the most important of which has been
*
the section 102 requirement that the responsible federal agency
Banter, L.W. Environmental Impact Assessment. New York,
N.Y.: McGraw-Hill, 1977, Chapter 1; and Fairfax, Sally K. "A
Disaster in the Environmental Movement." Science, Vol. 199
(February 17, 1978), pp. 743-48.
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prepare an EIS and submit it to a review process before the action
can be undertaken. Thus, three questions must be asked to deter-
mine whether an action requires an EIS: Is the action major?
Is it federal? Will it have a significant environmental impact?
In general, the courts have interpreted each of these criteria
broadly, giving a wide applicability to NEPA's EIS requirements.
As a result, NEPA covers actions ranging from federal funding
of power plant, reservoir, or highway construction to federal
contracts, grants, and loans to private individuals and groups
(an exception to the latter is the relinquishment of federal
responsibility for the preparation of an EIS for general revenue
sharing).1 Only in the areas of national security policy or
emergency actions has the judiciary limited the applicability
of NEPA provisions.2
2.2.1.2 Administrative Authority
Title II of NEPA established the Council on Environmental
Quality (CEQ) to advise the President on environmental affairs,
provide the public with information on environmental matters,
and monitor other agency compliance with NEPA.3 In addition,
CEQ was to be the repository for the EIS, the reviewer of draft
EIS, and the developer of comparative analyses on the impact
1Blissett, Marian. "Environmental Assessment in Perspec-
tive," in Blissett, Marian, ed. Environmental Impact Assessment.
Austin, Tex.: Engineering Foundation, 1975, pp^ 264-65.
2Anderson, Frederick R. NEPA in the Courts; A Legal Analy-
sis of the National Environmental Policy Act. Baltimore, Md.:
Johns Hopkins University Press, 1975, pp. 134-39.
3Liroff, Richard A. A National Policy for the Environment;
NEPA and Its Aftermath. Bloomington, Ind.: Indiana University
Press, 1976, pp. 36-45.
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statement process. As overseer of NEPA controls, CEQ promulgates
guidelines for EIS preparation, but these statements are advisory
only. Under CEQ authority, the "lead" agency which has respon-
sibility for a program prepares an EIS to include: a description
of the proposed action; the relationship of the action to land-
use policies, plans, and controls; the probable impacts (both
positive and negative, both direct and indirect); and the adverse
effects (both short- and long-term) of the action, major alter-
native courses of action, and the relation of the action to other
federal policies. The EIS must also include a list of the states,
localities, and agencies affected by the proposed action and a
consideration of the problems and objections raised by reviewers.
Each EIS is'first prepared in draft form, routed through
other federal, state, and local agencies with expertise or author-
ity in the policy area, and exposed to public examination, con-
sultation and review. The Office of Management and Budget (OMB)
has established a number of state and local clearing houses to
allow input from other levels of government. And interest
groups participate through public hearings at the draft EIS
stage. The final EIS lists these coordination efforts and seeks
to respond to issues and questions raised during the drafting
process.
The establishment of the Environmental Protection Agency
(EPA) eleven months after NEPA's enactment added another sig-
nificant factor to the EIS administrative process. Under the
1970 Clean Air Act (CAA),l EPA was authorized to police the
Air Act of 1970, Pub. L. 91-604, 84 Stat. 1676.
-14-
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environmental activities of other agencies by reviewing and
publicly commenting on "environmentally impacting actions."1
The EIS functions of the CEQ and EPA were not altered by
the Department of Energy (DOE) reorganization in 1977. Rather
than incorporating the dual responsibilities of energy production
and environmental protection, as had been proposed in earlier
unsuccessful energy reorganization efforts, the DOE will focus
on the energy production mission.2 Thus the CEQ and EPA can
"remain independent to voice environmental concern."3
2.2.1.3 Regulatory Provisions
NEPA's 'regulatory framework differs from that of most fed-
eral legislation on two points. First, few laws are written in
such general terms. And second, the statute does not arm the
responsible agency (CEQ) with compliance and enforcement sanc-
tions.4 Generally, however, few exemptions to NEPA's EIS
requirements have been granted by the courts. Although initially
all "environmental" agencies were excluded from NEPA obligations,
Richard A. A National Policy for the Environment:
NEPA and Its Aftermath. Bloomington,Ind.:Indiana University
Press, 1976, p. 110.
2Corrigan, Richard. "Congress Takes a Chip Off Carter's
Energy Block." National Journal, Vol. 9 (June 11, 1977), p. 889,
3U.S., Office of the White House, Press Secretary. "Intro-
duction of DOE Legislation." Press Release, March 1, 1977, p. 3.
^Curlin, James W. "The Role of the Courts in the Imple-
mentation of NEPA," in Blissett, Marian, ed. Environmental
Impact Assessment. Austin, Tex.: Engineering Foundation, 1975,
p. 27. See also Bardach, Eugene, and Lucian Pugliaresi. "The
Environmental Impact Statement and the Real World." The Public
Interest, Vol. 49 (Fall 1977), pp. 22-38.
-15-
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most organizations quickly acquiesced to the EIS standards.
Eventually, even the nation's major line agency in the environ-
mental protection field, EPA, has had its exemption in certain
areas removed by CEQ.
2.2.2 Indian Controls
If the development activity requires federal approval, the
EIS requirements for the special jurisdiction of Indian lands
are generally the same as for other federal jurisdictions. Where
an action involves only the Indian tribe and a second party (and
not federal approval), no impact statement is required.l Gen-
erally, where federal approval is mandated, the Bureau of Indian
Affairs (BIA) is the lead agency, although other agencies may
at times have such responsibilities.
2.2.3 State Controls
2
Following the lead of the federal government, by 1977
twenty-two states (and two municipalities) had adopted their own
requirements for detailed analyses of environmental impacts prior
to development.3 And these comprehensive, NEPA-like standards
are only one form of existing "state environmental policy acts"
1Will, J. Kemper. "Environmental Protection of Indian
Lands and Application of NEPA," in Rocky Mountain Mineral Law
Foundation, ed. Institute on Indian Land Development--Oil, Gas,
Coal and Other Minerals. Tucson, Ariz.: Rocky Mountain Mineral
Law Foundation, 1976, p. 8-20.
2This discussion is based on the best information available
in mid-1977.
3Kirschten, J. Dicken. "Paperwork Is Having a Big Impact
on Environmental Statements." National Journal, Vol. 9 (July 16,
1977), p. 1120.
-16-
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(or SEPAs). Other states have promulgated statutes which require
only after-the-fact legal responses to violations of environmental
standards. Still other state environmental controls are only
advisory, coordinating, or planning mechanisms. And some states
still do not systematically regulate environmental impacts from
energy developments.
In the western region, six of the eight states have a SEPA
in one form or another; only Utah and New Mexico do not explic-
itly mandate environmental controls. Table 2-1 summarizes the
existing western state approaches to insuring environmental
quality. As the table indicates, Arizona, Montana, and South
Dakota have comprehensive environmental quality laws modeled
after NEPA-. North Dakota and Wyoming have implemented after-
the-fact "law enforcement" mechanisms for protecting the envi-
ronment. And Colorado has a coordinating and planning arrange-
ment which has only advisory power in environmental policy-
making.
The most comprehensive environmental quality legislation in
the western region has been promulgated by Montana. Enacted
in 1971, the Montana SEPA requires an EIS to be prepared by the
appropriate lead agency and submitted to the state Environmental
Quality Council for every recommendation, report, or proposal
leading to a project, program, legislation, or other major action
of the state government which would significantly affect the
quality of the human environment. Montana's legislation speci-
fied EIS components which closely parallel those outlined in
NEPA: environmental impacts of development actions, adverse
effects, alternatives, short- and long-term impacts, and resource
commitments.
-17-
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Arizona's 1971 EIS requirement is applicable only to the
acquisition of water conservation and development funds. Those
funds are available for land purchase and water development
projects. The Game and Fish Commission, which administers the
Arizona EIS requirements, prescribes a discussion of the environ-
mental impacts, adverse effects, alternatives, productivity
(short- and long-term) and resource commitments for proposed
developments.
The state of Colorado has required only a coordinating and
planning function of its environmental quality agency since
1963. An attempt to pass a "law enforcement" SEPA (similar to
those of North Dakota and Wyoming) failed in 1975. New Mexico
has gone the opposite route. An EIS requirement was passed in
New Mexico in 1971 and then repealed. A proposed SEPA with no
EIS requirement was rejected in 1975.
Finally, Utah has no SEPA, nor has it attempted to produce
one in recent years. Utah does have a constitutional article
expressing environmental concern as a public policy, but this
position is limited specifically to the protection of forests.
2.3 SITING AND LAND USE
As the U.S. has attempted simultaneously to increase energy
supplies while diversifying supply sources, policymakers have
been confronted by facility location and land-use problems.
Even when the society agrees that energy supplies need to be
increased, the possibility of undesirable local impacts makes
it difficult to find a site which is acceptable to all parties-
at-interest. As a result, new energy supply activities are
-19-
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often delayed.1 And any proposed development is always under
pressures exerted by competing land uses (agriculture, etc.).
These pressures may also act to constrain energy production.
Particularly in the West, the importance attached to the land-
scape has focused state and local decisionmaking on land use
and facility siting controls.
2.3.1 Federal Controls
2.3.1.1 Legal Framework
The federal government has little direct control over either
the location of energy facilities or the manner in which energy-
related activities use land; most siting and land-use authority
resides in state and local governments.2 Reacting to the threat
of state impediments to the future development and flow of cru-
cial national energy resources, a Federal Land-Use Policy Act
has been introduced in Congress on a number of occasions. Al-
though the Federal Land Policy and Management Act,3 which reaf-
firmed the policy of comprehensive land-use planning based on
multiple resource management principles, was enacted in 1976,
this legislation has nothing to do with the setting of objective
criteria or the systematic evaluation of siting alternatives.
Instead, the 1976 legislation is limited to the disposition of
the public lands.
1See Ramsay, William. "Siting Power Plants." Environmental
Science and Technology, Vol. 11 (March 1977), pp. 238-43.
2Ford Foundation, Energy Policy Project. A Time to Choose;
America's Energy Future. Cambridge, Mass.: Ballinger,1974, p.
488.
3Federal Land Policy and Management Act of 1976, Pub. L.
94-579, 90 Stat. 2743.
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It is in the control of publicly-owned lands and resources
that the federal government does have direct authority over
energy facility siting and land use. Under the terms of legis-
lation dating back to the 1920 Mineral Leasing Act,1 federal
officials have assumed extensive discretionary authority over
leasing arrangements and development impacts. A more detailed
outline of these federal control mechanisms is contained in the
discussions of resource exploration, acquisition, and extraction
which follow later in this chapter.
Indirect federal control over land use and location is a
much more pervasive factor than direct federal regulation. By
changing air, water, and noise rules, for example, the federal
government can have a significant impact upon the completion of
any natual resource development project.2 A listing of the in-
direct federal controls on siting and land use would include
the permit procedures under the Clean Water Act,3 the emissions
limitations of the CAA,1* and NEPA' s requirement for EIS consid-
eration of locational alternatives and impacts. An elaboration
of these controls is located in the discussions of air and water
quality and water use below.
Mineral Leasing Act of 1920, 41 Stat. 437.
2See White, Michael D. "Constitutional Derivation and
Statutory Exercise of Land Use Control Power," in Rocky Mountain
Mineral Law Foundation, ed. Rocky Mountain Mineral Law Institute,
Proceedings of the 21st Annual Institute. New York, N.Y.:
Matthew Bender, 1975, pp. 657-68.
3Clean Water Act of 1977, Pub. L. 95-217, 91 Stat. 1566.
"Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat.
685.
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2.3.1.2 Administrative Authority
Three federal agencies have some authority over facility
siting. The Federal Energy Regulatory Commission (FERC)
within the DOE controls the siting of hydroelectric facili-
ties on interstate waters and the regulation of pipeline con-
struction. The Department of the Interior (DOI), particularly
the Bureau of Land Management (BLM) and the U.S. Geological Survey
(USGS), controls the construction of facilities on federal lands.
And the Nuclear Regulatory Commission (NRC) is charged with
regulating the licensing and siting of atomic energy facilities
in the interests of public health, safety, and environmental
protection. The issue of the location of nuclear power plants has
been perhaps the most important land-use and siting issue of the
1970s.J
The DOE reorganization has not significantly altered this
administrative framework. Although the creation of a cabinet-
level energy department certainly provides a more effective
mechanism for developing more comprehensive energy policies,
the exclusion of most DOI functions from the new agency assures
a continuation of past patterns of policy implementation in the
siting and land-use area.
2.3.1.3 Regulatory Provisions
Since there is no comprehensive federal land-use legisla-
tion, there are few direct federal regulatory provisions which
apply to nonfederally-owned lands. The proposed legislation has
generally been designed to induce the states to adopt more
Muntzing, L. Manning. "Siting and Environment: Essen-
tials in an Effective Nuclear Siting Policy." Energy Policy,
Vol. 4 (March 1976), pp. 3-11.
-22-
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comprehensive statewide planning and controls--through, for
example, the mechanism of federal funding for states to develop
coordinated land management capabilities. The specific federal
regulatory provisions for control of land-use and facility loca-
tion on federal lands are discussed in sections which follow.
2.3.2 Indian Controls
Indian land-use provisions vary among the approximately
fifty reservations located in the eight-state western region.
In general, legal title to Indian lands is held by the federal
government as trustee for the Indians, who retain beneficiary
rights of use, occupation, and limited management and disposi-
tion. Specific modes of Indian land acquisition, disposal, or
use vary according to ownership. Both tribal and individually-
owned lands are subject to a range of treaties, executive orders,
and acts of Congress. Among the latter, the most significant
is the Indian Reorganization Act of 1934,* which established
general limitations on the disposal of tribal property and ended
the allotting of individual Indian landholdings.
Congress has established that Indian lands are not in-
cluded within statutes outlining mineral laws on the "public
domain."2 Nor do states have powers over Indian reservations
other than those expressly given to them by Congress. Provisions
do exist, however, for the Secretary of the Interior (or his
Indian Reorganization Act of 1934, Pub. L. 73-383, 48
Stat. 984.
2Lavell, William G., and William D. Back. "Indian Land
Status," in Rocky Mountain Mineral Law Foundation, ed. Insti-
tute on Indian Land Development--0il, Gas, Coal and Other Min-
erals.Tucson, Ariz.:Rocky Mountain Mineral Law Foundation,
1976, p. 5-2.
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subordinate, the Commissioner for Indian Affairs) in his trust-
eeship role, to exercise considerable discretionary authority
in such matters as the granting of rights-of-way and the leasing
of Indian lands. It should be noted that this discretionary
authority is increasingly constrained by the growing pressure by
the Indian tribes to control tribal affairs.
2.3.3 State Controls
States have extensive control of land-use and facility
siting. Under the state "police power," governments can control
energy resource development through zoning laws, building codes,
subdivision regulations, permit requirements, and performance
standards.1 In many instances, however, this state authority
has been delegated to local, county, or regional organization.
In addition to these regulations designed to protect public
health, welfare, and safety, states have direct control over the
development of state-owned resources.
Typically, states have attempted to regulate such activities
as surface mining or the development of floodplains, wetlands,
or other "critical areas" through fragmented, incremental pro-
grams.2 But in the 1970s, an increasing number of states have
implemented statewide, comprehensive land-use legislation. These
acts usually provide access points for public participation in
state development decisions and establish basic planning
University of Florida, Center for Governmental Responsi-
bility. Energy: The Power of the States. Gainesville, Fla.:
University 'of Florida, 1975, p. 161.
2Moss, Elaine, ed. Land Use Controls in the United States;
A Handbook on the Legal Rights of Citizens. New York, N.Y.:
Dial Press, 1977, pp. 252-58.
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criteria (efficient use, etc.) which must be met prior to under-
taking actual development activities. Even more commonplace have
been the more limited attempts to control the facility siting
process through "certificates of public convenience and neces-
sity" and other construction certification procedures.
Of the western states, only two (Colorado and Wyoming) have
enacted state land-use programs. Six states (Arizona, Colorado,
Montana, New Mexico, North Dakota, and Wyoming) have statutory
controls over facility siting.1 Table 2-2 summarizes the state
laws affecting land-use and facility siting in the West. The
discussion which follows is an attempt to briefly describe the
existing land-use and siting controls in each of the eight
states.
The Wyoming Land-Use Commission is the state agency as-
signed the task of developing and enforcing land-use policy (and
evaluating EIS studies). The Commission is involved in both
planning and regulatory activities as well as undertaking tech-
nical assessments and compliance evaluations. Facility siting
in Wyoming is governed by the Industrial Siting Council under
the provisions of the Industrial Development Information and
Siting Act.2 This legislation regulates the siting of power
plants generating more than 100 megawatts or costing more than
$50 million. The control mechanism is a permit which is issued
upon submission of a long-range plan and consideration of impact
Donald A. Western Boomtowns; Part I, Amended: A
Comparative Analysis of State Actions. Denver, Colo.: Western
Governors' Regional Energy Policy Office, 1976, pp. 36-43.
2 Industrial Development Information and Siting Act of 1975,
Wyoming Statutes §§ 35-502.75 et seq. (Cumulated Supplement 1975)
-25-
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factors (discharges, etc.) and locational conflicts with state,
intrastate, regional, county, and local land-use plans.
Facility siting regulation in Montana is the most compre-
hensive of the western states. Under the provisions of the Major
Facility Siting Act,1 the state Board of Natural Resources and
Conservation issues certificates of site compatibility. This
control mechanism applies to a variety of facilities, including
power plants over 50 megawatts, uranium enrichment, gas pro-
cessing, oil refining and pipeline facilities, and transmission
lines. The certificate is issued upon submission of a ten-year
plan and consideration of a range of environmental impact cri-
teria. In comparing the siting controls of Montana and Wyoming,
Donald Rapp has noted:
The states of Montana and Wyoming have provided an excel-
lent example for western states to examine. Both laws
provide an extensive list of factors to be considered
by the reviewing agency of state government. In the
case of Montana, the burden of proof is clearly placed
upon the applicant to prove his application will not
provide a net negative effect upon the state.
Wyoming clearly has the authority to deny the per-
mit, based on socioeconomic consideration. The author-
ity permits conditioning the timing of construction to
allow for local governments to develop the capacity to
accommodate rapid population growth associated with the
facility in advance of the beginning of construction.
Thus, in Wyoming, the plant siting authority clearly
represents the single most important tool to assure
state sovereignty over securing solutions to community
development impact problems.2
xMajor Facility Siting Act, § 70-801 Revised Code of Montana
(1975).
2Rapp, Donald A. Western Boomtowns: Part I, Amended: A
Comparative Analysis of State Actions. Denver, Colo.: Western
Governors'Regional Energy Policy Office, 1976, p. 43.
-27-
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Arizona's Siting Committee has siting authority for power
plants over 100 megawatts through the control mechanism of a cer-
tificate of environmental compatibility. This mechanism, issued
on consideration of a ten-year plan, evaluates environmental fac-
tors, historic and scenic impacts, and costs (among other ele-
ments) as criteria for siting decisions.1
Colorado is one of only two states in the West (the other
is Wyoming) which has a state agency primarily designed to en-
force land-use planning regulations and to evaluate EIS assess-
ment studies. The Colorado Land-Use Commission, which fills
this role, has developed a comprehensive set of model regula-
tions for county and municipal governments. These include sit-
ing requirements and restrictions in areas such as electric
transmission line location, or other activities which may be
designated as matters of state interest. In addition, the
Colorado Public Utilities Commission has extensive energy facil-
ity siting authority through its power to grant or deny certif-
icates of convenience and public neccesity.2
In North Dakota, the state Public Service Commission reg-
ulates the siting of any energy conversion facility through the
issuance of a certificate of site compatibility. These permits
are issued upon the submission of a ten-year plan, a letter of
intent prior to construction, a certificate of public convenience
and necessity (where applicable), and a public hearing. In
Westerby, David A. "Power Plant and Transmission Line
Siting: Improving Arizona's Legislative Approach." Law and the
Social Order, Vol. 1973 (No. 2, 1973), pp. 519-41.
2Hobbs, Gregory J., Jr., First Assistant Attorney General,
Natural Resources Section, State of Colorado. Personal communi-
cation, July 13, 1977, p. 1.
-28-
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addition, the Public Service Commission controls the siting of
transmission facilities through a certificate of transmission
facility corridor site compatibility.1
Most of the western states' facility siting regulations orig-
inated in early attempts to control monopolies. These statutes
created public service commissions which issued certificates of
public convenience and necessity. New Mexico simply promulgated
additional requirements for these certificates to make them more
effective utility siting controls. Thus, the New Mexico Public
Service Commission regulates the siting of power plants over
300 megawatts by applying convenience criteria. Also, the New
Mexico Energy Resources Board, established as an advisory com-
mittee to other state agencies, has an impact on land use through
its authority over the conservation of power-producing fuels.
The states of Utah and South Dakota have no state agencies
with direct authority over land-use or facility siting actions.
2.4 RESOURCE EXPLORATION
Energy resource development includes a sequence of activ-
ities beginning with resource exploration, proceeding through
resource acquisition, extraction, conversion, distribution, and
use. In the following section, federal, state, and Indian con-
trols on the first phase of this sequence—resource exploration—
will be described.
^iistola, David W., Assistant Commerce Counsel, North
Dakota Public Service Commission. Personal communication, July
13, 1977, pp. 2-3.
-29-
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2.4.1 Federal Controls
2.4.1.1 Legal Framework
The federal government controls the exploration for energy
resources through a broad legal framework. Underlying the system
of federal exploration rules and regulations is the General Min-
ing Law of 1872,1 which established a "claims" or "location"
system for encouraging mineral exploration and development. Un-
der this statute, the process of gaining ownership and control
of public resources was based on discovery (location), appro-
priation, and development. By 1920, pressures had begun to build
for the establishment of limits on the rapid sale of federal
resources. The result was the Minerals Leasing Act,2 which im-
plemented a "leasing" system for public lands. The 1920 act
established procedures for acquiring the necessary permits for
public domain resource development while reserving title to the
land to the federal government. This provision represented a
compromise between the claims procedures of the 1872 law and
the demands for a more restrictive policy.
Since 1920, the federal legal framework which controls
resource exploration has been modified significantly by a num-
ber of amendments and new statutes. In 1947, the Acquired Lands
Leasing Act3 authorized the leasing of energy resources on those
lands which had been acquired by the federal government. The
General Mining Law of 1872, 17 Stat. 91.
2Mineral Leasing Act of 1920, Pub. L. 66-146, 41 Stat. 437,
3Acquired Lands Leasing Act, Pub. L. 80-382, 61 Stat. 913.
-30-
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Multiple Minerals Development Act passed in 1954,* attempted to
remedy conflicts between existing leasing and location rules and
regulations. This act introduced standards which encouraged
simultaneous development of multiple resources with the goal of
minimal hindrance to any one resource's exploration, acquisition,
or extraction. The national policy guidelines and standards by
which the federal government would encourage such goals as the
"orderly and economic development of domestic mineral resources"
were set out in the 1970 Mining and Mineral Policy Act.2 That
same year the Geothermal Steam Act3 provided for the orderly and
environmentally prudent development of geothermal resources.
Finally, in 1976 the Coal Leasing Amendments Act1* was passed,
establishing a totally competitive coal leasing system and re-
defining a number of coal development criteria more stringently.5
Table 2-3 outlines the applicability of various types of
federal exploration controls by energy resource. As this table
illustrates, the 1872 General Mining Law (also termed the Mineral
Location Act) is applicable only to uranium exploration and
development. But the 1920 Mineral Leasing Act and the 1947
Acquired Lands Leasing Act apply to oil, natural gas, oil shale,
Multiple Minerals Development Act, Pub. L. 91-581, 84 Stat.
1573.
2Mining and Mineral Policy Act, Pub. L. 91-583, 84 Stat.
1876.
3Geothermal Steam Act, Pub. L. 91-581, 84 Stat. 1566.
''Federal Coal Leasing Amendments Act of 1975, Pub. L. 94-
377, 90 Stat. 1083.
5Kleppe, Thomas S., Secretary of the Interior, and Russell
E. Train, Administrator, U.S. Environmental Protection Agency.
Personal intercommunication re "New Federal Coal Leasing Policy
to Be Implemented Under Controlled Conditions," January 23, 1976.
-31-
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and coal (as modified by the 1976 Coal Leasing Amendments Act).
And the 1970 Geothermal Steam Act applies only to geothermal
energy.
2.4.1.2 Administrative Authority
The federal rules and regulations for energy resource explo-
ration are administered for the most part by the DOI. Two com-
ponents of DOI are especially significant in the administration
of federal resource exploration controls—the BLM and the USGS.
In the case of Indian lands, the BIA also has responsibility for
resource exploration. In addition to these DOI bureaus, the
Department of Agriculture (USDA), and specifically its Forest
Service, and the Department of Defense (DOD), particularly the
Corps of Engineers (COE), have primary administrative authority
over resource exploration activities on federal lands.
Regardless of which agency is charged with the responsi-
bility for making energy resources available for development,
there are four categories of administrative arrangements within
which resource exploration can be undertaken: public domain
(lands subject to disposal under the general U.S. land laws);
reserved (lands set apart for special use); withdrawn (lands
temporarily removed from public domain, usually for conservation
purposes); and acquired (lands which were never a part of the
public domain until acquired by the federal government).] In
University of Oklahoma, Science and Public Policy Program,
Fossil Fuel Research Team. The Coal and Oil Shale Resource
Development Systems; An Interim Report. Norman, Okla.: Uni-
versity of Oklahoma, Science and Public Policy Program, 1974,
p. 185.
-33-
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developing these publicly-owned resources, the goals of DOI have
included assuring "orderly and timely development," including
promoting exploration, encouraging development compatible with
other land uses, and maximum ultimate recovery, protecting the
environment and public safety, and insuring the public a "fair
market value" return.
2.4.1.3 Regulatory Provisions
Traditionally, DOI has had four regulatory options to achieve
its goals and objectives for public resource exploration: the
mining claim, the preference lease, the noncompetitive lease,
and the competitive lease. The first three of these are appli-
cable to situations where little is known about the character-
istics of the resource and some exploratory activity is required.
When resource characteristics are well known or can be reasonably
estimated, the fourth alternative—the competitive lease—is
available.
In recent years these regulatory provisions have been the
target of repeated reform efforts. The 1976 Coal Leasing Amend-
ments Act1 was only the first response to the problems of the
1872 and 1920 legislation (nonproductive leases and claims,
insufficient compensation to the federal government, environ-
mental damage, etc.). The 1976 act requires that all coal leases
be sold only by competitive bidding. Suggested revisions in the
1872 law would discontinue the claims procedure by installing
a system of prospecting permits, exploration permits, and prefer-
ence leases. But these proposals are still before the Congress.
federal Coal Leasing Amendments Act of 1975, Pub. L. 94-
377, 90 Stat. 1083.
-34-
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There are two types of mining claims—lode and placer. Lode
claims consist of a continuous body of mineralized rock, while
placer claims consist of minerals occurring as loose grains in
sand and gravel. Uranium exploration is controlled by claims
procedures, under which an individual or group may enter public
domain lands and, upon discovery of the mineral, make and hold a
claim by performing a minimum amount of labor on the claim per
year. Different resource exploration procedures apply to uranium
exploration on withdrawn, acquired and reserved lands, but these
land categories are not currently identified by the federal gov-
ernment as uranium-containing areas.1
The preference lease option, applicable to all resources
except coal and uranium, is based on the applicant acquiring a
prospecting permit which grants the authority to explore the
land. If the exploratory activities demonstrate the presence of
"workable deposits," the applicant may then be awarded preferential
rights to develop the resources.
A noncompetitive lease is an agreement between the federal
government and an applicant in which the terms for resource ex-
ploration and development are not established by law, but are
negotiated according to the particular circumstances of the sit-
uation.
Since the competitive leasing option requires no resource
exploration, its provisions are discussed in the sections deal-
ing with resource acquisition below.
1U.S., Congress, Senate, Committee on Interior and Insular
Affairs. Federal Leasing and Disposal Policies. Hearings pur-
suant to S. Res. 45, A National Fuels and Energy Policy Study,
92d Cong., 2d sess., June 19, 1972, pp. 282-83.
-35-
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Both preference and noncompetitive leasing procedures are
usually administered by the BLM and USGS, which are responsible
for recording applications, collecting fees, rents and royalties,
evaluating environmental impacts, and coordinating exploratory
activities with other federal agencies. Although the terms of
leases vary significantly according to resource characteristics,
generally the prospecting permit (for preference leasing) re-
quires the submission of an exploration plan, an estimate of
costs, and a timetable of diligent development. Following ap-
proval of the plan and a preliminary environmental assessment,
there is broad discretionary authority vested in the Secretary
of the Interior and his subordinates to establish the terms under
which exploration will take place. And the terms of exploration
established by the Secretary are subject to discretionary adjust-
ments. Moreover, thec reation of a DOE left undisturbed most of
this DOI control.
2.4.2 Indian Controls
Resource exploration controls on Indian lands are basically
the same as those for federal lands, except that special legis-
lation has been required because Indians share legal title with
the federal government. General authority to lease allotted
Indian lands was established by the Indian Appropriations Act of
1909, * while tribal land leasing was authorized by the 1938
Omnibus Tribal Leasing Act.2 In the case of both tribal and
allotted lands, the BIA acts as trustee. And all Indian leases
require approval from the Secretary of the Interior and the
1Indian Department Appropriations Act of 1909, Pub. L. 60-
316, 35 Stat. 78.
20mnibus Tribal Leasing Act of 1938, Pub. L. 75-506, 52
Stat. 347.
-36-
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tribe or individual—both the federal government and the Indians
retain veto power over a lease.
2.4.3 State Controls
Although state governments have some measure of control over
energy resource exploration activities on federally-owned lands
(through the use of their police power to tax land improvements,
etc.), most state controls are exercised on private or state-
owned lands. Almost all state governments have policies designed
to "promote the discovery and development of the mineral resources
of the state for the benefit of the public through a system of
licensing on a royalty basis."1 Even in the area of state regu-
lation of state-owned lands, however, state controls are not
absolute. This is because:
Under the supremacy doctrine, state property must be
used in a manner not inconsistent with existing federal
law. For example, the grant of submerged lands to the
states by the federal government contained a reserva-
tion of authority for the federal government to use the
lands and waters for navigation and power production.
The supremacy of federal law would prevent any state
action which would jeopardize this interest.
If the exploration for energy resources becomes
more crucial, the federal government could conceivably
assume more control. This type of action has already
occurred in the distribution phase through the Emer-
gency Petroleum Allocation Act. The federal govern-
ment may at any time institute condemnation proceedings
to take desired lands for exploration and leasing
purposes. Such a taking would necessarily require
compensation and would have to be for public purpose.
Verity, Victor, John Lacy, and Joseph Geraud. "Mineral
Laws of State and Local Government Bodies," in Rocky Mountain
Mineral Law Foundation, ed. The American Law of Mining. New
York, N.Y.: Matthew Bender, Vol. 2, p. 627(1974).
-37-
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Alternatively, if the shortage of energy resources
were construed as a national security matter, the
war power could be used to pre-empt any state regu-
lation in the area of exploration.l
In most states, authority for managing and leasing state
resources is located in a single agency (as is the case in Colo-
rado) . However, some states allow each state agency which con-
trols state lands to lease resources (North Dakota utilizes this
approach). A wide range of administrative discretion is also
vested in the various state leasing agencies. And some states
retain mining claims (location procedures) as the first step in
the leasing process, while other states use competitive or pref-
erence leasing arrangements (as in Arizona and New Mexico).
The terms of most state exploration permits range from ninety
days to two years, and they are usually renewable. Most states'
prospecting permits require exploration plans, place limits on
extraction prior to leasing, restrict exploration on lands al-
ready known to contain commercially valuable minerals, and re-
quire some form of bond to be posted. States may also cancel
permits for noncompliance. More specific details on state re-
source exploration controls are contained in the individual
Energy Resource Development Systems CERDS) descriptions.
2.5 RESOURCE ACQUISITION
Following exploration, or when deposits are known to exist,
there are a number of federal and state control mechanisms for
regulating the acquisition of energy resources so that development
University of Florida, Center for Governmental Responsi-
bility. Energy; The Power of the States. Gainesville, Fla.:
University of Florida, 1975, p. 88.
-38-
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can begin. Most resource acquisition controls follow the same
general jurisdictional divisions (federal-Indian-state respon-
sibilities) described in the section on resource exploration
above. But there are additional laws, administrative agencies,
and regulatory provisions which become operative for the resource
acquisition sequence of energy development for both the federal
and state levels of government and the special jurisdiciton of
Indian lands.
2.5.1 Federal Controls
2.5.1.1 Legal Framework
The first federal laws controlling resource acquisition
were passed in the 1780s. But until the passage of the 1872
General Mining Law,l these early statutes did little but encour-
age the development of public lands as a source of government
revenue and a means to encourage settlement of the frontier. The
most important federal resource acquisition laws are summarized
below in Table 2-4.
The passage of the 1872 law, as discussed above in the re-
source exploration section, marked a compromise between "free
and open" resource acquisition and a more restrictive develop-
ment policy. In 1910, the Pickett Act2 gave the President dis-
cretionary authority to withdraw public lands from sale and
reserved public lands for public use. The 1920 Minerals Leasing
Act3 returned to the policy of developing public lands while
General Mining Law of 1872, 17 Stat. 91.
2Pickett Act, Pub. L. 61-303, 36 Stat. 847.
3Mineral Leasing Act of 1920, Pub. L. 66-146, 41 Stat. 437.
-39-
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retaining title for the government. And the 1947 Acquired Lands
Leasing Act,1 the 1954 Multiple Minerals Development Act,2 the
1970 Mining and Minerals Policy Act3 and the 1976 Coal Leasing
Amendments Act1* modified the 1920 legislation (see Table 2-4) .
2.5.1.2 Administrative Authority
Historically, the DOI has had primary control over the
leasing of energy resources. As the Center for Governmental
Responsibility has observed:
The Secretary of the Interior, through the Bureau of
Land Management, has primary control over the explora-
tion for, and leasing of, coal, oil, gas, and uranium
deposits. The various federal agencies with jurisdic-
tion over the surface of acquired lands may prevent the
issuance of a lease, but only the Secretary has the
authority to issue a lease. The Secretary has sole
discretionary authority in the decision to issue leases
for public domain lands and outer continental shelf
lands.5
However, the DOE reorganization has significantly altered
this system of federal leasing controls. Not only has the DOE
itself assumed a primary policymaking role in federal energy
Acquired Lands Leasing Act, Pub. L. 80-382, 61 Stat. 913,
2Multiple Minerals Development Act, Pub. L. 91-581, 84
Stat. 1573
3Mining and Minerals Policy Act, Pub. L. 91-583, 84 Stat.
1876.
"*Federal Coal Leasing Amendments Act of 1975, Pub. L. 94-
377, 90 Stat. 1083.
5University of Florida, Center for Governmental Responsi-
bility. Energy; The Power of the States. Gainesville, Fla.:
University of Florida, 1975, p. 87.
-41-
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resource acquisition decisions, but the 1977 reorganization
created a new Leasing Liaison Committee (LLC) designed to enable
joint DOE-DOI oversight of leasing regulation.
The DOE reorganization leaves the DOI with broad responsi-
bility for "executing the leasing program, including site selec-
tion, issuance and supervision of leases, and enforcement of
terms and conditions."1 These functions were left with DOI be-
cause the Carter Administration felt that the responsibility for
multiple-use of public lands should be located in one department
which could reflect a "broad spectrum of concern."2 But the 1977
Department of Energy Organization Act3 gives the new DOI control
over the specification of economic leasing terms and conditions.
Under the 1977"legislation, the Secretary of Energy will regulate
four aspects of leasing. First, the DOE will establish long-term
production goals for federally-owned resources to serve as plan-
ning guidelines for the DOI. These goals will be promulgated in
conjunction with the Secretary of the Interior, and any dispute
will be decided by the President. Second, the DOE will be re-
sponsible for the development of general economic terms and con-
ditions of leasing. Such standards as rates of production, dili-
gence requirements, and the disposition of federal royalties
will be established by the new department. Third, the economic
terms and conditions of individual leases (the eligibility of
joint ventures, the actual bidding system, etc.) will be outlined
by the DOE prior to the DOI's issuance of a lease. And fourth,
^achman, W.A. "New Energy Department Shaping Up in Con-
gress." Oil and Gas Journal, Vol. 75 (June 13, 1977), p. 21.
2"Energy Reorganization." Energy Today, Vol. 4 (March 1,
1977) , p. 90.
3Deparment of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565.
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economic terms and conditions for continuation of a lease may be
delineated by the DOE, subject to DOI approval. For example,
the DOE may recommend forfeiture of a lease which does not meet
production rates. But the DOI will retain the final cancellation
authority.
In order to further leasing policy coordination between the
DOE and DOI, the Department of Energy Organization Act1 created
the LLC. Although structurally and functionally a part of the
DOE (the LLC Chairman is designated by the Secretary of Energy),
the LLC will be composed of an equal number of members from the
two departments. The LLC will be responsible for keeping the
Energy Secretary informed about leasing issues. And the LLC will
serve as the vehicle for DOE-DOI communications on matters related
to leasing.2
2.5.1.3 Regulatory Provisions
Many of the federal regulatory provisions for resource ac-
quisition vary according to the resource. These provisions are
discussed in the resource specific chapters, (3 through 8). How-
ever, there are also a number of procedures common to all the
resources considered in this study. The common link to the ac-
quisition of federal resources is the lease under the 1920
Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565.
2U.S., Congress, Senate, Committee on Governmental Affairs,
Department of Energy Organization Act. Hearing on S. 826, S.
591, 95th Cong., 1st sess., March 7-April 8, 1977.
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Minerals Leasing Act,1 the 1947 Acquired Lands Leasing Act2 and
the 1954 Multiple Minerals Development Act3 (as modified for
coal by the 1976 Coal Leasing Amendments'*) . Leases may be ini-
tiated by either the DOI or a private applicant. In general,
federal mineral leases must be filed in the appropriate BLM land
office, where the application is recorded as to location, land
status, and the availability of rights. A copy of the application
is then forwarded to the USGS and other agencies, if necessary.
If other agencies with responsibility over the land object to the
lease, it will not be granted. Applications for federal leases
must be accompanied by a filing fee, and usually the first year's
rental must also be paid at this time. Generally, the lessee
must furnish a bond in compliance with the terms of the lease.5
Federal leases are usually specific as to the size limitations,
time periods, and renewal criteria for energy resource develop-
ment.
Again, it is important to note that the 1976 Coal Leasing
Amendments6 represent an attempt to remove some of the uncer-
tainty from the federal leasing system by assuring adequate plan-
ning prior to the leasing stage (through a planning system termed
Mineral Leasing Act of 1920, 41 Stat. 437.
2Acquired Lands Leasing Act. Pub. L. 80-382, 61 Stat. 913.
3Multiple Minerals Development Act, Pub. L. 91-583, 84 Stat.
1876.
''Federal Coal Leasing Amendments Act of 1975, Pub. L. 94-
377, 90 Stat. 1083.
5Combo, John X. "Federal Mineral Leases," in Rocky Mountain
Mineral Law Foundation, ed. The American Law of Mining. New
York, N.Y.: Matthew Bender, Vol. 2, pp. 391-551 (1974).
6Coal Leasing Amendments Act.
-44-
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the Energy Minerals Allocation Recommendation System [EMARS]1)
and by encouraging diligent development of leases through the
application of regulations and incentives which discourage the
retention of nonproducing coal leases. For example, under the
terms of the 1976 legislation, the speculative holding of leases
was made more difficult by a provision that any lease which has
not produced "commercial quantities" within fifteen years will
be terminated. And the 1976 act requires that all coal leasing
be done through competitive procedures. Also, the leasing amend-
ments require more comprehensive land-use planning by DOI and
other agencies prior to leasing.
Following a four-year leasing moratorium while the new fed-
eral controls•were developed, the DOI attempted to resume coal
acquisition procedures in 1976. However, the new DOI program
was challenged in court (by the Natural Resources Defense Coun-
cil [NRDC], in NRDC vs. Hughes, 19772), and the government must
prepare a new programmatic EIS before new leases may be promulgated.
Thus, the DOI is still operating under a leasing moratorium under
which coal may be leased only by short-term criteria (maintaining
an existing operation or as a resource for future production)
until this issue is resolved.3
is described in U.S., Department of the Interior,
Bureau of Land Management. Draft Environmental Impact Statement;
Proposed Federal Coal Leasing Program. Washington, D.C.: Govern-
ment Printing Office, 1974, pp. 1-1 through 1-5.
2NRDC v. Hughes, 10 ERG 1713 (U.S. Dist. Court, D.C., Sep-
tember 27, 1977) .
3"Kleppe Lifts Coal Leasing Moratorium." National Journal,
Vol. 8 (January 31, 1976), p. 156; and "Interior Will Appeal
Court Ruling in NRDC v Hughes." The Energy Daily, Vol. 5 (Octo-
ber 3, 1977), p.l.
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2.5.2 Indian Controls
Procedures for acquiring Indian resources are substantially
the same as those for federal leases, but there are distinctions
which must be made between tribal and allotted (individual) lands,
Under the terms of the Indian Appropriation Act,1 Ifinds allotted
to the individual Indian by the U.S. may be leased for mineral
development, pending approval of the Secretary of Interior.
Lands allotted to individuals by tribal councils are subject to
the terms of the tribal constitution in addition to the required
DOI approval. Tribal lands leasing, governed by the Omnibus
Tribal Leasing Act,2 is usually controlled by tribal constitu-
tions, charters, or bylaws, subject to the Secretary of the In-
terior 's review.3
Unless the BIA's Commissioner of Indian Affairs rules other-
wise, current regulations require competitive bidding for Indian
mineral leases. Lease bids must be advertised, unless the Com-
missioner allows private negotiation. Lease size is limited
to 2,560 acres, unless the Commissioner finds that a larger area
is in the interest of the tribe and is required for large energy-
related facilities. Rents and royalties are also established by
regulation.
Indian Department Appropriations Act of 1909, 35 Stat. 783,
20mnibus Tribal Leasing Act of 1938, Pub. L. 75-506, 52
Stat. 347.
3Adams, Mark K. "Conventional Leasing of Indian Land for
Mineral Development," in Rocky Mountain Mineral Law Foundation,
ed. Institute on Indian Land Development—Oil, Gas, Coal and
Other Minerals. Tucson, Ariz.: Rocky Mountain Mineral Law
Foundation, 1976, pp. 6-1 through 6-7.
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Indian leasing procedures require diligent development. In
the case of oil and gas leases, the regulations state that the
lessees must exercise diligence in drilling and operating wells;
for other minerals a minimum annual development expenditure is
usually required.1
Efforts to change and reform the regulatory provisions for
Indian leases are currently underway. The major alterations under
consideration include: eliminating the current emphasis on leas-
ing and adding provisions which will allow other alternatives,
such as joint ventures; assigning the tribes the initiative for
resource development; eliminating the requirement for Secretarial
approval prior to lease negotiations; and requiring economic,
environmental and sociocultural impact statements prior to lease
r?
arrangements.
2.5.3 State Controls
Most states have constitutional provisions authorizing the
sale of state-owned lands. However, there has been a trend to-
ward reserving mineral rights to the states. By 1970, most of
the western states had enacted legislation providing for the
leasing of state-owned lands, including: public lands that were
still under the state's sovereign power at the time of admission
to the Union; land grants to the state from the federal govern-
ment at the time the state was created; lands in the beds of
rivers and streams that were navigable at the time the state was
created; and lands acquired by the state, such as lands confis-
cated for nonpayment of taxes.
U.S., Federal Trade Commission, Bureau of Competition.
Report to the Federal Trade Commission on Mineral Leasing on
Indian Lands. Washington, B.C.: Federal Trade Commission, 1975,
-47-
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Mineral lease applications at the state level usually re-
quire payment of fees to cover issuance and processing costs.
Leasing may either take place on a first-come, first-serve basis,
or may require competitive bidding. Many states require bonding
for faithful performance of the lease. Usually, the state au-
thority has discretionary authority to reject a lease application,
State leases for hard minerals are usually for a primary
term of up to twenty years (although the length of these terms
has been decreasing in recent years), with a preferential right
of renewal for successive terms ranging in duration. Almost all
states make a distinction between oil and gas leases and leases
for all other minerals. Reasonable commercial production is
often required of the lease (the most commonly used term is
"diligent development," but "reasonable diligence" and "faithful
operation" are also applied and have a similar meaning). Miner-
als may be leased by rental, royalty or a combination of the two
methods. Rent is usually fixed, depending upon the number of
*
acres, while royalty is usually a percentage of the production.
Most states have provisions for the multiple use of state lands
for mineral development and surface uses. Because state leasing
procedures vary widely with the particular energy resource, more
detailed descriptions of these social controls are reserved for
the succeeding resource specific chapters of the ERDS Report
(Chapters 3 and 8).
2.6 RESOURCE EXTRACTION
Following the preparation of an EIS, obtaining an explora-
tion permit, and acquiring minerals through the leasing (or
location) process, approval for the extraction of minerals must
be obtained and regulations concerning extraction must be
-48-
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followed. This section outlines those social controls appli-
cable to the extraction phase of energy resource development.
2.6.1 Federal Controls
2.6.1.1 Legal Framework
Resource extraction statutes at the federal level range
from environmental protection standards (under NEPA1) through
land-use and facility siting rules and regulations, to air, water,
and noise quality legislation. In addition, reclamation, health
and safety, and transportation laws are aspects of the federal
legal framework which affect resource extraction. Since each of
these substantive areas is discussed in detail in separate sec-
tions of this chapter, the focus here is upon those requirements
directly applicable to resource recovery and conservation. Spe-
cifically, this discussion centers on the general operational
procedures pertaining to drilling and mining plans and permits,
and resource conservation and reclamation standards.
The federal legal framework governing mining and drilling
plans is contained in the resource acquisition and exploration
legislation which was discussed in the two previous sections of
this chapter. Generally, mining and drilling plans must be sub-
mitted following the issuance of a lease. Likewise, resource
conservation and reclamation criteria are built into the leasing
framework, largely as a result of the legislation governing
environmental impacts or land use.
National Environmental Policy Act of 1969, Pub. L. 91-190,
83 Stat. 852.
-49-
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2.6.1.2 Administrative Authority
The DOI has the primary administrative authority for federal
resource extraction activities. Mining and drilling plans are
submitted to the Secretary of the Interior following the acqui-
sition of a lease. The Secretary has discretionary authority to
approve, modify, or deny such plans. Operational resource con-
servation regulations, usually included as a part of the drilling
plan, are administered by the USGS, which has the responsibility
for preventing waste in the development of federal resources.
The Conservation Division of the USGS has specific regulatory
authority for the promotion of good conservation practices
through the operational regulations that it issues. The BLM has
primary authority for resource reclamation requirements (also
usually included in the operational mining or drilling plan).
The pressures for the federal government to enact more com-
prehensive strip mine reclamation controls have led to the one
major modification in federal energy resource extraction controls
in recent years. After more than a decade of debate, the Con-
gress passed the 1977 Surface Mining Control and Reclamation
Act,1 which strengthened DOI enforcement capabilities, estab-
lished joint federal-state enforcement authority, created an
Abandoned Mine Reclamation Fund to repair past damages, and pro-
vided for exemptions for small operators.
A major provision of the 1977 act was the creation of the
Office of Surface Mining Reclamation and Enforcement (OSMRE) in
1 Surface Mining Control and Reclamation Act of 1977, Pub. L.
95-87, 91 Stat. 445. See also "Congress Passes Strip Mining Bill
After Five Year Effort." National Journal, Vol. 9 (July 30, 1977),
p. 1204.
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the DOI. The OSMRE is designed to function as the federal en-
forcement mechanism to insure compliance with environmental per-
formance standards for all surface mining and for surface dis-
turbances associated with underground mining.1
New requirements for the development of federal minerals
generally require standards such as diligent development of
leased resources. With coal mining, for example, these standards
mandate the submission of a mining plan, containing diligent
development and continuous operation criteria, to the Secretary
of the Interior within three years of the issuance of a lease.
Following a review of the plan by the Secretary, other agencies
with surface management responsibility conduct an environmental
and technical analysis. Acting as a team, representatives of
these agencies determine whether a plan should be approved. The
Secretary of Interior has discretionary authority over the ap-
proval of the plan, but the agency with surface management re-
sponsibility may file its objections to a lease being issued.2
2.6.1.3 Regulatory Provisions
The extraction of federal resources is regulated by partic-
ular stipulations in the lease itself and by the appropriate
federal regulations. These regulations are extensive, covering
almost all aspects of mining and drilling operations. Generally,
Although the title of the 1977 act does not indicate it,
the legislation covers, to a lesser extent, the surface impacts
of underground coal mining operations. But federal regulations
addressing these impacts have not yet been promulgated.
2U.S., Congress, Senate, Committee on Interior and Insular
Affairs. Federal Leasing and Disposal Policies. Hearings pur-
suant to S. Res. 45, A National Fuels and Energy Policy Study,
92d Cong., 2d sess., June 19, 1972, p. 117.
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an approved mining or drilling plan includes the following infor-
mation: descriptions and schedules of the operation and descrip-
tions of the affected surrounding area; measures to protect and
restore the environment, safety measures, methods of abandonment,
and procedures to insure conservation of resources. In addition,
the USGS Area Supervisor has the responsibility of determining
what site-specific conditions merit incorporating into the leas-
ing framework's safeguards. The USGS is also responsible for the
periodic review of extraction procedures to insure compliance.
Current federal extraction procedures provide for public hearings
and review of possible adverse impacts of ongoing operations.
In addition, developers must post performance bonds to insure
that their operations are consistent with the requirements of
development plans. Noncompliance with operational standards may
result in the suspension of extraction activities. For more
detailed information on these standards for separate resources,
see the ERDS descriptions in Chapters 3 through 8.
2.6.2 Indian Controls
Federal controls applicable to extraction operations on
Indian lands are similar to those outlined above. Measures de-
signed to avoid, minimize, or correct damage to the environment
and remove hazards to public health and safety are implemented
by the BIA. In the evaluation of extraction efforts on Indian
lands, BIA takes into account a number of factors, including:
the need for the preservation and protection of other
resources, including cultural, recreational, scenic,
historic, and ecological values; and control of ero-
sion, flooding, and pollution of water; the isolation
of toxic materials; the prevention of air pollution;
the reclamation by revegetation, replacement of soil,
or by other means, of lands affected by the exploration
-52-
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or mining operations; the prevention of slides; and
the protection of fish and wildlife and their habitat.1
Based on the results of such examinations, the BIA estab-
lishes the general requirements which the lessee must meet. The
resulting mining plan must be approved by the USGS before opera-
tions can begin.
2.6.3 State Controls
State governments have generally established requirements
for cooperative production and waste prevention for resource
development on state-owned and private lands. In the case of
oil and gas resource extraction, for example, states have estab-
lished controls ranging from pooling arrangements to proration-
ing and maximum efficient recovery rates. More direct methods
«
of controlling extraction processes include registration and
licensing standards, safety regulations, and environmental pro-
tection rules.2 In addition, there are now state-federal ar-
rangements for the enforcement of reclamation regulations.3
In the West, there are a wide range of state administrative
and managerial controls for mine location, production, and rec-
lamation functions. Table 2-5 outlines some of the most impor-
tant state extraction control mechanisms for the West. While
!25 C.F.R. § 177.4
242 Fed. Reg. 62637-716 (December 13, 1977).
3University of Florida, Center for Governmental Responsi-
bility. Energy: The Power of the States. Gainesville, Fla.:
University of Florida, 1975, p. 89.
-53-
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the specific standards differ among the eight states, general
regulatory power and techniques are similar across the region.1
State legislation in the West generally permits the estab-
lishment of written regulations for the control of extraction
functions, but all states can issue orders and conduct certain
licensing and permit activities without written orders. Permits
ranging from $50 to $200 per acre must be obtained from the re-
spective state agency to surface mine in the West. In addition,
developers must post a bond, the amount of which is based on
the predicted reclamation costs. Most western states require
bonds between $100 and $600 per acre, with a $1 thousand to
$2 thousand minimum. This bond can be reclaimed on reclamation
of the surface mined land (several states permit a gradual re-
leasing of the bond, as various stages of reclamation are
achieved). If mine operators default, the state agencies are
then responsible for completing the reclamation process, using
the money from the forfeited bond. Several states permit the
funds to go into a general reclamation fund, to be used for rec-
lamation anywhere in the state.
lrThis discussion of state extraction controls relies heavily
on three works. See U.S., Council on Environmental Quality.
Coal Surface Mining and Reclamation; An Environmental and Eco-
nomic Assessment of Alternatives. Washington, B.C.: Government
Printing Office, 1973, pp. 35-48; National Academy of Sciences.
Rehabilitation of Western Coal Lands, A Report to the Energy
Policy Project of the Ford Foundation. Cambridge, Mass.:
Ballinger, 1974, pp. 95-99 and 120-38; and Imhoff, Edgar A.,
Thomas 0. Friz, and James R. LaFevers. A Guide to State Programs
for the Reclamation of Surface Mined Areas, Geological Survey
Circular 731. Washington, D.C.: Government Printing Office,
1976, pp. 7-29. Thus, the discussion describes state programs
as they existed in 1976. States are currently in the process
of revising their laws and programs in accordance with federal
strip mine regulations promulgated in 1977.
-55-
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The state laws also define the time in which reclamation
must occur. Most commonly, reclamation activities may be post-
poned until after the completion of mining (this is the case in
Colorado, North Dakota, Wyoming, and Montana).
Revegetation attempts are required by most western states,
in the form of replanting and reseeding efforts. While there is
substantial variation in the specific requirements, most of the
states stipulate the objective of revegetation and the number of
seeding attempts or seeding rates per acre.1
In addition to these common provisions, there are a number
of requirements specific to only a few states in the West. For
instance, the administering agencies of Montana and Wyoming con-
sider compensation for the loss of water due to strip mining.
Montana, North Dakota, and Wyoming will not grant permits for
mining land which has been determined to have unique value (his-
torical, scenic, etc.) or which cannot be reclaimed according to
statutory and planning criteria.
Wyoming has baseline data collection and monitoring require-
ments to be performed by its controlling state agency. New
Mexico, North Dakota, and South Dakota have aesthetic as well as
technical criteria for rehabilitating disturbed lands. Montana
and Wyoming require frequent on-site inspection of the mining
and reclamation process. Finally, Montana terms its permit a
"reclamation contract" which gives the state the additional en-
forcement option of bringing suit against the operator for breach
of contract if adequate reclamation does not occur, or allows
1 Federal regulations establish performance criteria and
measures for revegetation activities; see 42 Fed. Reg. 62691
(December 13, 1977).
-56-
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public action against the state if the state is remiss in its
enforcement responsibility.
Given these similarities and special provisions, the follow-
ing discussion outlines the state surface disturbance controls
in terms of the responsible agencies, control mechanisms, and
range of applicability of standards, for each of the western
states.
In Montana, the Department of State Lands and the State Board
of Land Commissioners are responsible for site location and ap-
proval of reclamation plans. Montana is the most explicit of
the western states in establishing the approval criteria by re-
serving areas from strip mining (other states only specify that
certain factcTrs be considered prior to approval). Montana's list
of topics for evaluating reclamation efforts includes: ecological
fragility, scenic value, historic value, jeopardy to wild species,
and special Indian historic value. The mine reclamation laws in
Montana apply to both surface and underground operations, and the
permit procedures require bonds and surface owner permission.
Permit duration in Montana is one year.
The Public Service Commission is the controlling agency for
resource reclamation activities in North Dakota. It is charged
with the implementation of general regulations, applicable to
surface mining of coal (or uranium, if that ore enriches a coal
seam), which require bonding, surface owner permission, and pub-
lic hearings as part of the reclamation plan. In North Dakota,
the reclamation permit is issued for a three-year period.
All mining operations in Colorado must obtain a permit prior
to affecting any land. The regular development and extraction
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mining permit, issued by the Mined Land Reclamation Board, applies
to operations with affected land equal to or greater than 10 acres
and/or which extract 70,000 or more tons of mineral or overburden
per year. The permit is for the life of the mine.1 Mining ac-
tivities may, however, require a range of other permits, e.g.,
permits from the Air Pollution Control Commission, the Water
Pollution Control Commission, and the Department of Health.
The Wyoming Environmental Quality Council and the Council
for the Administration of Land Quality control state mine recla-
mation laws. Permits issued by these bodies are valid for the
life of the operation (for both surface and underground activ-
ities) , as long as the bonding requirements are met under the
reclamation plan.
In the state of New Mexico, the permit issued by the Coal
Surfacemining Commission is valid for the life of the mine if
bonding requirements under the coal reclamation plan are main-
tained.
The South Dakota State Conservation Commission governs rec-
lamation activities in that state. The Commission is responsible
for insuring compliance (the meeting of bonding standards) with
the state reclamation plan.
Utah's Division of Oil, Gas and Mining and the Board of
Oil, Gas, and Mining have administrative authority over the im-
plementation of state reclamation plans. These plans include
Colorado, Office of the Governor. Environmental Permit
Directory. Denver, Colo.: Office of the Governor, 1977, p. 58.
-58-
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requirements for both approval and bonding and apply to both sur-
face and underground operations.
Arizona has no surface mining statute.
2.7 OCCUPATIONAL SAFETY AND HEALTH
To this point, the social control categories have proceeded
in a logical sequence—from the preparation of an EIS through
land-use and siting decisions to resource exploration, acqui-
sition and extraction rules and regulations. However, in this
section and those which follow, issues which are applicable to
the entire development sequence are discussed. Occupational
safety and health considerations, for example, apply not only
to those categories already discussed (to resource exploration
and acquisition activities, for example), but they also relate
to the problems of energy-related air and water pollution, water
use, and solid waste disposal activities which cause safety and
health impacts. The focus of this section is the safety and
health danger facing laborers and the public in resource extrac-
tion and energy production functions. Occupational safety and
health problems range from the hazardous conditions found in
resource extraction activities such as underground coal mining
to the dangers associated with nuclear power plants.
2.7.1 Federal Controls
2.7.1.1 Legal Framework
With few exceptions in the past, occupational health and
safety was primarily the responsibility of the private sector and
the states. Pennsylvania, for example, enacted legislation
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establishing basic health and safety standards for coal mines as
early as 1869. However, a series of mine disasters in the early
1900s led in 1910 to the first federal investigation of the causes
of occupational hazards. By 1941, the situation had not changed
appreciably—the states regulated the health and safety aspects
of mining but the accident rate continued to increase. As a
result, Title I of the Federal Coal Mine Safety Act1 was passed
in 1941 to provide the authority for U.S. inspection of all coal
mines engaged in interstate commerce. In 1946, the Federal Mine
Safety Code was formulated. This was an agreement, worked out
between the United Mine Workers (UMW) and the coal industry at
the urging of the federal government, which provided a compre-
hensive safety guide for federal mine inspectors. However, it
was not until 1952, with the passage of Title II of the Federal
Coal Mine Safety Act,2 that federal inspectors were given their
first enforcement authority. The DOI, and specifically the BLM,
was given the responsibility for these inspections. This legis-
lation was amended in 1960 and again in 1965 to remove most state
jurisdiction over mine health and safety.3
Conflicts between state and federal mine safety controls
were finally resolved by the enactment of the 1969 Coal Mine
federal Coal Mine Safety Act, Title I, Pub. L. 77-49, 55
Stat. 177 (1941).
2Federal Coal Mine Safety Act, Title II, Pub. L.. 82-552,
66 Stat. 692 (1952)
3Freehling, Robert J. "Health and Safety Regulations," in
Rocky Mountain Mineral Law Foundation, ed. The American Law of
Mining. New York, N.Y.: Matthew Bender, Vol. 3, pp. 713-36
(1967) .
-60-
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Health and Safety Act.l This legislation authorized the promul-
gation of mandatory health and safety standards for all under-
ground and surface coal mines, established dust and noise con-
trol criteria, required medical exams and benefits for disabled
miners, and provided for research programs in coal mine health
and safety to be conducted by the DOI and the Department of
Health, Education, and Welfare (HEW).2
The Metallic and Nonmetallic Mine Safety Act of 1966 3 ex-
tended federal coverage of mining safety beyond the coal industry
to other mining operations, including the extraction of uranium.
This act gave the Secretary of the Interior the authority to
promulgate and enforce health and safety regulations for both
surface and underground uranium mines.
The standards set by the Metallic and Nonmetallic Mine Safety
Act of 1966 and the Coal Mine Health and Safety Act of 1969 were
brought together in the Federal Mine Safety and Health Act of
1977** which became effective in March of 1978. This act also
provided that health and safety within mines and on mine property
would fall under its jurisdiction, including uranium mines and
mills.
federal Coal Mine Health and Safety Act of 1969, Pub. L.
91-173, 83 Stat. 742.
2Howerton, John B. "The Federal Coal Mine Health and Safety
Act of 1969," in Rocky Mountain Mineral Law Foundation, ed.
Rocky Mountain Mineral Law Institute; Proceedings of the 16th
Annual Institute. New York, N.Y.: Matthew Bender, 1971, pp.
539-603.
3Federal Metallic and Nonmetallic Mine Safety Act of 1966,
Pub. L. 89-577, 80 Stat. 772.
^Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
91 Stat. 1290.
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The major federal health and safety controls in the nuclear
energy area are derived from the Atomic Energy Act of 1954.*
It provided for the regulation of uranium milling operations,
the production of uranium hexaflouride, fuel fabrication, and
fuel reprocessing.
Passage of the 1970 Occupational Safety and Health Act2 did
not supersede the standards established for the coal and uranium
industries. Instead, the 1970 act extended national health and
safety controls to all enterprises engaged in business affecting
interstate commerce. Essentially the Occupational Safety and
Health Act represented a widespread feeling that "existing state
safety legislation was generally weak or not well-enforced, and
that variations in safety requirements across states tended to
penalize those where concern for safety was strongest."3 The
Occupational Safety and Health Act provided for the issuance of
interim health and safety standards for the first two years after
the effective date of the act. This allowed time for the devel-
opment of more comprehensive regulations which followed a de-
tailed review process.
2.7.1.2 Administrative Authority
Federal occupational health and safety responsibilities are
divided between the Departments of Labor, HEW, and Interior. The
Atomic Energy Act of 1954, Pub. L. 83-703, 86 Stat. 919,
as amended by Pub. L. 91-560, 84 Stat. 1472.
Occupational Safety and Health Act of 1970, Pub. L. 91-596,
84 Stat. 1590.
3Smith, Robert S. The Occupational Safety and Health Act:
Its Goals and Achievements. Washington, B.C.: Amercian Enter-
prise Institute for Public Policy Research, 1976, p. 7.
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Secretary of Labor, through his Assistant Secretary for Occupa-
tional Safety and Health, has overall administrative authority
over the implementation of the 1970 act. The Assistant Secretary
heads the Occupational Safety and Health Administration (OSHA),
which sets standards, enforces compliance, and oversees state
programs.1 The Department of Labor also has administrative re-
sponsibility for health and safety policy in all mining operations
through the Mine Safety and Health Administration (MSHA). HEWs
National Institute for Occupational Safety and Health (NIOSH) has
responsibility for research on health and safety criteria, recom-
mends new standards, and develops health and safety manpower.
The DOI Bureau of Mines has responsibility for conducting mining
health and safety research for both coal, metallic and nonmetallic
mining under provisions of the 1977 Act.
In addition to these major health and safety functions, the
EPA plays an important role in the federal control of radiation
exposure. Since 1970, the EPA has been responsible for setting
exposure standards for the general public and the issuance of
guidelines for those agencies which regulate mines (MSHA) and
those which control nuclear power plants (NRC). The NRC monitors
exposures for individuals working in nuclear facilities and con-
trols nuclear waste disposal from nuclear power plants.
2.7.1.3 Regulatory Provisions
The OSHA has developed four different sets of standards:
general industry standards; special industry standards;
David L., and Shaun M. Werner, eds. Occupational
Safety and Health: A Policy Analysis. Washington, D.C.: Govern-
ment Research Corporation, 1973, p. 5.
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occupational safety standards; and maritime standards. Many
of these rules refer to the American National Standards
Institute (ANSI) "national consensus standards." Energy
facility design and safety features usually also employ such
sources as company manuals, engineering standards, and existing
codes.*
In addition to the regulations mandated by OSHA, other safety
and health provisions are administered through interagency coor-
dination. Within such arrangements, MSHA has set minimum mining
inspection standards, penalties, and closure rules; and the NRC
and EPA have provided regulations which apply to radioactive
exposures ranging from radon gas in mines to transportation line
radiation.
2.7.2 State Controls
Under the Federal Mine Safety and Health Act,2 MSHA has
enforcement authority for its regulations in addition to the
authority held by the states.
OSHA provides for state plans to supersede federal standards
and enforcement authority. If states promulgated rules as ef-
fective as OSHA's, a transition is effected from a federal program
to a state-federal partnership in which the states administer
their own plans within the OSHA framework. As of early 1976,
^.S., President. The President's Report on Occupational
Safety and Health; Annual Report for 1973 by the U.S. Depart-
ment of Labor, Occupational Safety and Health Review Commission
and the U.S. Department of Health, Education, and Welfare.
Washington, D.C.: Government Printing Office, 1975.
2Federal Mine Safety and Health Act of 1977, Pub. L. 95-
164, 91 Stat. 1290.
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as is illustrated by Table 2-6, only North Dakota, South Dakota,
and Montana had not had such plans approved by the federal govern-
ment. In 1978, however, the Colorado legislature withdrew its
state OSHA plan as an austerity measure.
2.8 AIR QUALITY
Concern with the environmental impacts of industrial activ-
ities in general and energy resource development in particular
has been a relatively recent phenomenon in the U.S. The first
major environmental issue to mobilize public opinion and govern-
mental action was air pollution, which became a significant pub-
lic policy focus in the late 1940s. In recent years, a great
deal of emphasis at both the federal and state levels has been
placed upon the development of control mechanisms to improve
air quality.
2.8.1 Federal Controls
2.8.1.1 Legal Framework
The first major federal legislation designed to improve
air quality was enacted in 1955. That year, the Air Pollution
Control Act1 mandated federal technical assistance to state and
local air quality programs but left the prevention and control
of air pollution from motor vehicles "at its source" with the
state and local governments. In 1963, Congress passed the Clean
Air Act,2 which provided for the development of motor-vehicle-
induced air quality criteria by the federal government
!Air Pollution Control Act, Pub. L. 84-159, 69 Stat. 322
(1955).
2Clean Air Act of 1963, Pub. L. 88-206, 77 Stat. 392.
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TABLE 2-6. STATUS OF STATE OSHA PROGRAMS
State
Status of Plan
Status of Standards
Arizona
Colorado
Montana
New Mexico
North Dakota
South Dakota
Utah
Wyoming
Approved 11/74
Withdrawn 4/78
Withdrawn 6/74
Approved 11/75
Withdrawn 7/73
Not Submitted
Approved 1/73
Approved 5/74
Adopted Federal
Adopted Federal
Adopted Federal
Adopted Federal
OSHA = Occupational Safety and Health Administration
(specifically HEW) to guide state and local agencies. But the
1963 act and its 1965 amendments failed to provide for any pro-
gram which would establish air quality standards for pollution
sources other than motor vehicles. And the 1963 act and amend-
ments continued to place the primary responsibility for pollu-
tion control in state and local hands.
In 1967 the Air Quality Act1 was passed. This legislation
established minimum national standards for air quality. The
1967 law applied to the issue of air pollution much of the phi-
losophy and many of the procedures developed earlier in the
water quality program (discussed in the next section of this
chapter). Three years later the EPA was established and the
rAir Quality Act of 1967, Pub. L. 90-148, 81 Stat. 485.
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1970 Clean Air Act Amendments1 were passed. This act, while
placing the burden of program development and enforcement on the
states, assigned to EPA the role of supervising state plans for
air pollution abatement and extended federal regulatory authority
beyond mobile sources (motor vehicles) to include all sources of
pollution.2
Additional amendments to the Clean Air Act were passed by
Congress in 1977.3 These new amendments provide a two-year ex-
tension on current standards for emissions on new automobiles,
establish a policy to prevent significant deterioration of air
quality, endorse EPA's "offset policy" for new or modified major
sources of air pollution in areas not meeting air quality stan-
dards, and require a case-by-case definition of best available
^
control technology on all major new sources. State implementa-
tion plans are required to be revised to include provisions at
least as stringent as the federal regulations.
2.8.1.2 Administrative Authority
Under the 1970 legislation, the Administrator of the EPA
was given the authority to establish national standards for
specified pollution sources. In addition, the EPA engages in
research, monitoring and enforcement activities and coordinates
antipollution actions of state and local governments. The
1 Clean Air Act Amendments of 1970, Pub. L. 91-604, 84 Stat.
1976.
2Rosenbaum, Walter A. The Politics of Environmental Con-
cern, 2nd ed. New York, N.Y.: Praeger, 1977, pp. 144-57.
3Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat.
685.
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Assistant Administrator for Air and Waste Management, through
the Offices of Air Quality Planning and Standards and Mobile
Source Air Pollution Control, has specific authority over air
quality controls.
The 1977 amendments extend EPA's authority to establish
standards for ambient air quality, to set performance standards
for new sources, to prescribe emission standards for hazardous
air pollutants, and to resolve interstate and international con-
flicts over air quality. States are allowed to revise implemen-
tation plans to provide for the prevention of significant dete-
rioration (PSD) of air quality maintenance requirements. Mobile
source inspection and maintenance programs may also be estab-
lished by the states.
2.8.1.3 Regulatory Provisions
4
The air quality criteria established by EPA are of two
types: "ambient" standards which measure the quality of the
atmosphere (usually at ground level) and "emission" standards
measuring quantities of pollutants discharged from facilities.
Federal ambient air quality regulations establish both "primary"
and "secondary" standards for maximum permissible concentrations
in the atmosphere of six "criteria" pollutants (suspended par-
ticulates, sulfur dioxide, carbon monoxide, nitrogen oxides,
photochemical oxidants, and hydrocarbons). Primary standards
are intended to identify maximum levels of each pollutants which
would not be harmful to the public health, while secondary stan-
dards, which are more restrictive for sulfur dioxide and partic-
ulates, set maximum pollution levels to protect the public wel-
fare. The federal primary and secondary ambient air quality
standards for the six criteria pollutants are given in Table 2-7,
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TABLE 2-7. NATIONAL AMBIENT AIR
QUALITY STANDARDS3
Pollutant
Sulfur Dioxide
Particulate
Matter
Carbon Monoxide
Photochemical
Oxidants
Hydrocarbons
(Nonmethane)
Nitrogen Dioxide
Averaging
Interval
Annually
24 hr
3 hr
Annually
24 hr
8 hr
1 hr
1 hr
3 hr
(6-9 a.m.)
Annually
Primary
Standard
yg/m3 (ppm)
80 (0.03)b
365 (0.14)c
75d
260C
10,000 (9)c
40,000 (35)c
160 (0.08)c'f
160 (0.24)c'f
100 (0.05)b
Secondary
Standard
yg/m3 (ppm)
1,300 (0.5)c
60d>e
150C
10,000 (9)c
40,000 (35)c
160 (0.08)c'f
160 (0.24)C'f
100 (0.05)b
yg/m3 = micrograms per cubic meter
ppm = parts per million
hr = hour
a40 C.F.R. 50. The Environmental Protection Agency (EPA) has
also proposed a primary and secondary national ambient air
quality standard for airborne lead of 1.5 yg/m3, monthly
arithmetic mean. Federal Register, Vol. 42 (December 14,
1977), pp. 63-076-83. The 1977 Amendments direct EPA to study
radioactive pollutants, calcium, arsenic, and polycyclic or-
ganic matter for possible inclusion as criteria pollutants.
Clean Air Act Amendments of 1977, Pub. L. 95-95, Sec. 122,
91 Stat. 720-21.
barithmetic mean
cmaximum concentration not to be exceeded more than once per
year
geometric mean
efor use as a guide to assess implementation plans to achieve
the 24-hr standard
ffor use as a guide in devising implementation plans to
achieve oxidant standards
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The 1977 Amendments established regulations for the PSD of
air quality. Three classifications for clean air areas have been
established. Class I areas allow the smallest increments of sul-
fur dioxide (S02) and particulates and are intended to protect the
cleanest areas of the nation (e.g., national parks and wilderness
areas). Class III areas allow the largest incremental increases.
Table 2-8 shows the PSD standards for the three classifications
including subcategories of variances to Class I standards.
TABLE 2-8. PREVENTION OF SIGNIFICANT
DETERIORATION ALLOWABLE INCREMENTS
Pollutants (in raicrograms
per cubic meter)
Total Suspended
Particulates
Sulfur Dioxide
Annual 24-hr Annual 24-hr 3-hr
Class I
Class I "relief"
5
19
10
37
2
20
5
91
25
325
Class I 18-day variance:
low terrain
high terrain
Class II
Class III
36
62
19 37 20 91
37 75 40 182
130
221
512
700
hr = hour
Source: Garvey, Doris B., et al. The Prevention of Significant Deteriora-
tion: Implications for Energy Research and Development. Argonne,
111.: Argonne National Laboratory, Office of Environmental Policy
Analysis, 1978, p.9.
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Emission performance standards for stationary sources are
divided into two general categories: "old sources" and "new
sources," New source performance standards (NSPS) set standards
for six criteria pollutants which are covered by the ambient air
quality rules. These broad categories are subdivided into a series
of industrial classifications, each of which has a separate set
of emission standards, based on economic and environmental con-
siderations.1 For energy related industries, NSPS have been
issued for fossil fueled steam generators,2 coal preparation
plants,3 and petroleum refineries. "*
"Hazardous air pollutants" include those substances to which
no ambient air quality standard is applicable and which, in the
judgment of the EPA Administrator, "may cause or contribute to an
increase in mortality or an increase in serious irreversible, or
incapacitating reversible, illness."5 This category allows even
stricter standards than ambient air quality regulations. Asbes-
tos, beryllium, mercury, and vinyl chloride are currently con-
sidered hazardous, and separate emissions levels and/or uniformly
applicable control equipment requirements have been established
for these materials. The 1977 Amendments allow EPA to set a
design, equipment, work practice, or operational standard for haz-
ardous materials when an emission standard is not feasible.
Ferguson, Arthur B., Jr. "Direct Federal Controls: New
Source Performance Standards and Hazardous Emissions." Ecology
Law Quarterly, Vol. 4 (No. 3, 1975), pp. 645-59.
Z40 C.F.R. §§ 60.40 et seq.; 41 Fed. Reg. 33966 (November
19, 1976).
340 C.F.R. §§ 60.250 et seq.; 41 Fed. Reg. 1240 (January 14,
1976).
4 40 C.F.R. §§ 60.100 et seq.
5Ferguson. "Direct Federal Controls," p. 651.
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Mobile source pollutants, most notably automobile emissions,
are the final area left primarily to EPA control. This program
is designed to reduce emissions of hydrocarbons, carbon monoxide,
and oxides of nitrogen from mobile sources.1 The automatic emis-
sion standards established by the 1977 Amendments are shown in
Table 2-9.
TABLE 2-9. AUTOMOTIVE EMISSION STANDARDS3
Year
C WJ.-L U UClll 1_
Hydrocarbons
Carbon Monoxide
Oxides of Nitrogen
1978-79
1.5
15.0
2.0
1980
0.41
7.0
2.0
1981b
0.41
3.40C
1.0d
aClean Air Act Amendments of 1977, Pub. L. 95-95,
Sec. 201, 91 Stat. 751-753. Units are in gram per
vehicle mile.
After 1981 a reduction of at least 90 percent above
the 1970 standards is required for hydrocarbons and
carbon monoxide.
GWith a possible two-year waiver to 7.0 grams per
vehicle mile.
^With 0.4 gram per vehicle mile as a research goal.
^urbrud, Arne E. "The Clean Air Act and Mobile-Source Pol-
lution Control." Ecology Law Quarterly, Vol. 4 (No. 3, 1975),
pp. 523-36. See also Margolis, Howard. "The Politics of Auto
Emissions." The Public Interest, Vol. 49 (Fall 1977), pp. 3-21.
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It must be noted that federal air quality controls are sub-
ject to continuous modification. The 1977 Clean Air Act Amend-
ments, the most recent alterations in air quality rules, provide
for variances from Class I (wilderness and parks) areas for PSD.1
The only modification in federal control of air quality effected
by the DOE reorganization was a very general and indirect refer-
ence to the assignment of an Assistant Secretary in the new
department "environmental responsibilities and functions." Accord-
ing to the Department of Energy Organization Act,2 these respon-
sibilities should include "advising the Secretary with respect to
the conformance of the Department's activities to environmental
protection laws and principles, and conducting a comprehensive
program of research and development on the environmental effects
of energy technologies and programs." This provision may be the
source of an administration proposal to shift some pollution con-
trol research from EPA to DOE.3
.*
2.8.2 Indian Controls
While the 1970 Clean Air Act Amendments'* did not directly
mention the role of Indian tribes in air quality control, the
^irschten, J. Dicken. "The Clean Air Conference—Something
for Everybody." National Journal, Vol. 9 (August 13, 1977), pp.
1261-63. See also Hamby, James I. "The Clean Air Act and Signi-
ficant Deterioration of Air Quality: The Continuing Controversy."
Environmental Affairs, Vol. 5 (Winter 1976), pp. 145-74.
Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565.
3Mossberg, Walter S. "Carter Set to Switch Key Pollution
Studies from EPA to Energy Unit, Risking Fight." Wall Street
Journal, January 18, 1978, p. 7.
4Clean Air Act Amendments of 1970, Pub. L. 91-604, 84 Stat.
1676.
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1977 Amendments,1 under PSD, allow Indian governing bodies pro-
visions to redesignate their reservation lands. If conflict
occurs between a state and an Indian tribe over any redesignation
or a permit for a new major emitting facility, the Administrator
of EPA is given a role to resolve the dispute. Indian tribes may
also participate in the formulation of state implementation plans
(SIP).
2.8.3 State Controls
Under the 1970 act, the states are charged with enforcing
air quality standards, and following the establishment of na-
tional regulations the states must present an enforcement plan.
In general, states have established implementation plans which
set restrictions on emissions so that federal ambient air quality
standards can be met. Primary standards were designed to be met
in 1977. However, there have been a number of significant delays
in meeting these compliance deadlines.
Generally, the 1970 act provides for federal intervention
if states fail to enforce emissions violations. After a period
of thirty days, the EPA Administrator may issue a compliance
order or bring civil action to force state compliance. The max-
imum penalties which may be assessed for violating EPA regulations
are $25 thousand per day and/or one year of confinement. After
the first conviction, the penalties may double.
The state governments, as part of the 1970 act requirements,
are responsible for the establishment of SIP for meeting national
primary and secondary air standards. Among the specific powers
granted to the states in the area of air quality control are:
1 Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat.
685.
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the adoption of emission standards required to attain national
criteria; the enforcement of applicable laws and the option of
seeking injunctive relief; the abatement of pollutant emissions
to prevent danger to the public health; the prevention of the
contruction of any energy facility which may constrain the attain-
ment of national air quality standards; the monitoring of the
performance of facilities; and the requiring of monitoring de-
vices by owners of stationary sources.
Each of the eight western states initially developed an
approved SIP which included emission limitations, land-use and
transportation controls, methods for funding, provisions to pre-
vent significant deterioration, and a timetable for the attain-
ment of the' primary and secondary standards. Also included were
interim dates for intermediate pollutant levels to provide for
eventual compliance. However, since the date for the attainment
of the primary standards has passed without compliance, the EPA
has decided to call for new SIP.
The requirements of SIP have changed as a result of passage
of the Clean Air Act Amendments of 1977,l and new SIP must be
prepared within nine months of the promulgation of the Clean Air
Act Amendments of 1977 regulations. These regulations are expected
to be promulgated during the summer of 1978.
In seeking to maintain or improve air quality, states have
at their disposal two types of permit procedures which may be
included in the SIP: construction permits and operation permits.
The most commonly utilized permits have been those related to the
'Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat.
685.
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construction or installation of sources. Construction permits
for point sources of emissions in the western states are issued
for periods ranging from one year (in Colorado) to two years (in
most of the other states), as is shown in Table 2-10. If at the
end of that time, the permit holder has not begun construction
or if installation has been delayed, the permit may be cancelled.
A construction permit may not be granted if the air pollution
control agency in the state (usually an independent air quality
board or commission, but also often the state health or environ-
mental protection agency in the western states) determines that
any of the federal, state, or local air pollution standards will
not be met.
Many of the western states have set emission standards which
are more stringent than the federal NSPS. The standards applica-
ble to sulfur dioxide emissions are shown in Table 2-11. Wyoming
also has a nitrogen oxides emission limit of 0.70 pounds per mil-
lion Btu (British thermal unit) heat input for new solid fossil
fuel (except lignite) fired equipment.
Most states require that the emission source be built and
equipped exactly as specified in the plans approved in the con-
struction permit. The penalty for noncompliance with the con-
struction permit is refusal of an operating permit. Procedural
flexibility usually allows the state agency to grant a conditional
operating permit if the pollution source is not remaining within
the expected standards. Some states do require a performance
test to be successful prior to granting the operating permit.
In the western states, operating permits range from a one-year
duration (Arizona) to three years (North Dakota). Most other
states in the West do not specify the duration of operating per-
mits.
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TABLE 2-10. STATE AIR POLLUTION PERMITS
Duration of Permits
State
Arizona
Colorado
Montana
North
Dakota
New
Mexico
South
Dakota
Utaji
Wyoming
Agency
Air Pollution
Control Division3
Air Pollution Con-
trol Commission
Department of
Health and Environ-
mental Science
Department of
Health
Environmental
Improvement Agency
Department and
Board of Environ-
mental Protection
Air Conservation
Committee
Air Quality Divi-
sion, Environ-
mental Quality
Department
Installation
2 years
1 year
2 years0
1.5 years
not
specified
2 yearse
not
specified
2 years
Operation
1 year
2 yearsb
not
specified
3 years
not
required
not
specified
not
required
not
specified
Conditional-
Temporary
1 year-90 days
6 months
1 year
not specified
1 year
not specified
1 year
unknown
aThis agency only for sources emitting over 75 tons of air contaminants per day.
For other sources, see local-county air boards.
A performance test is required before the actual operation is allowed, but usually
this is discretionary.
This construction permit is required for both new sources and new installations
of equipment on old sources.
This state may require a certificate of compliance in lieu of granting an instal-
lation permit.
'This permit required only for sources emitting over 10 pounds of contaminates per
hour or 25 tons per year.
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TABLE 2-11. STATE SO0 EMISSION STANDARDS
State
Applicability
Emission Regulation
Arizona
Colorado
Montana
Existing
New
Existing
New
New
New Mexico
North Dakota .,
South Dakota
Utah
Wyoming (State
regulations,
not part of
SIP)
New
New
1.0# S02/MMBtu
Q.8# S02/MMBtu
1.2# S02/MMBtu
0.4# S02/MMBtu
(for facilities >
250 MMBtu/hr)
It S/MMBtu plus maximum con-
trol capability which is
technically practicable and
economically feasible as
determined by Air Quality
Bureau
65 percent S02 control
none other than Federal NSPS
none other than Federal NSPS
none other than Federal NSPS
0.2# S02/MMBtu
# = pound
S02 = sulfur dioxide
MMBtu = million British
thermal units
> = greater than
hr = hour
S = sulfur
NSPS = New Source Performance
Standards
SIP = state implementation
plan
Source: Crenshaw, John, et al., Alternatives for Revising the
S07 New Source Performance Standard for Coal-Fired
Steam Generators, Staff Study. Research Triangle Park,
N.C.: U.S., Environmental Protection Agency, Office
of Air Quality Planning and Standards, Strategies and
Air Standards Division, Energy Strategies Branch, 1976,
updated to mid-1978.
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Also included in the SIP are state ambient air quality
standards. Each of the western states has complied with this re-
quirement by establishing standards for the six "criteria" pollu-
tants identified by EPA. Tables 2-12 through 2-17 identify the
ambient air quality standards for sulfur dioxides, particulates,
carbon monoxide, photochemical oxidants, hydrocarbons, and nitro-
gen dioxide for each of the eight states in the West. Most of
these state standards (established in terms of annual mean or
maximum concentration) are set at or below the primary federal
ambient air criterion. For example, the levels established for
sulfur dioxide in the West are set below the federal primary
standards for annual arithmetic mean and maximum 24-hour concen-
tration by every state except Utah (which has standards set at
exactly the federal level). Basically, the same situation char-
acterizes the state criteria for each of the other pollutants.
The state of Colorado has enacted PSD provisions similar to the
federal standards for sulfur dioxide.
In addition to the ambient air quality standards for these
six major pollutants, some western states have established cri-
teria for other substances. Montana, North Dakota, and Wyoming
have promulgated regulations for such pollutants as dustfall,
sulfation , and hydrogen sulfides. The information regarding these
additional air quality standards is outlined in Table 2-18. This
table also shows that some western states have enacted restric-
tions on pollutants ranging from haze to beryllium and flourides.
Finally, states have issued emission limitations to obtain
the national ambient standards. Table 2-19 summarizes the west-
ern states' emissions limitations. Following the federal example
for regulating certain stationary sources, most western states
have emission regulations for particulates, sulfur dioxide, and
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TABLE 2-12.
STATE AMBIENT AIR QUALITY
STANDARDS FOR SULFUR DIOXIDES
Standards (In Micrograms/Cubic Meter)
Area
Annual Arith-
metic Mean
Maximum 24-hour
Concentration
(not to be ex-
ceeded more than
once per year)
Maximum 3-hour
Concentration
(not to be ex-
ceeded more than
once per year)
Federal
Primary
Arizona
Colorado3
Category Ib
Category II
Category IIIb
Montana
North Dakota
New Mexico
South Dakota
Utah
Wyoming
80
50
25
2
5
25
23
(.02 ppm)
60
60
60
80
60
365
260
300
10
50
300
115d
(.10 ppm)
260f
260
260
365
260
1300
1300
700
15
100
700
1300
1300
1300
1300
1300
ppm = parts per million
o
Colorado also has separate standards for Air Quality Control Regions
(Denver, etc.)
Above a baseline as measured on October 27, 1977. Category I areas are
national parks and monuments, the remainder of the state is designated
Category II, and provisions for changing designations are included.
Montana has a one-hour standard of 0.25 ppm not to be exceeded for more
than one hour in any four consecutive days.
d
Not to be exceeded in over one percent of days in any three-month period.
Ttforth Dakota has one-hour standard of 715 micrograms per cubic meter
(y/m3) of air, maximum one-hour concentration.
Maximum one-hour concentration not to be exceeded.
-80-
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TABLE 2-13. STATE AMBIENT AIR QUALITY
STANDARDS FOR PARTICULATES
Standards (In Micrograms/Cubic Meter)
Maximum 24-hour
Concentration
(not to be ex-
ceeded more than
once per year)
Area
Annual Geo-
metric Mean
Federal
Primary
Secondary
Arizona
Colorado3
Montana
North Dakota
New Mexico
South Dakota
Utah
Wyoming
75
60
60
45
75
60
60
60
90d
60
260
150
100
150
200b
150
150C
150
150
150
aColorado also has separate standards for Air Quality
Control Regions (Denver, etc.)
Not to be exceeded more than one percent of the days of
the year.
°New Mexico has an additional seven day average in this
category (of 110 micrograms per cubic meter [yg/m3]) and
a thirty day average of 90 yg/m3.
dAlso not more than one percent of samples between
April 1 and October to be over 200 yg/m3 or five percent
over that figure the remainder of the year.
-81-
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TABLE 2-14. STATE AMBIENT AIR QUALITY
STANDARDS FOR CARBON MONOXIDE
Standards (In Micrograms/Cubic Meter)
Maximum 8-hour Maximum 1-hour
Concentration Concentration
(not to be ex- (not to be ex-
ceeded more than ceeded more than
Area once per year) once per year)
Federal
Primary
Secondary
Arizona
Colorado3
rS
Montana
North Dakota
New Mexico
South Dakota
Utah
Wyoming
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
10,000
40 ,000
40,000
40,000
40,000
40,000
40,000
15,000
15,000
40,000
40,000
a!5 minute average of 100 parts per million set for
Eisenhower Tunnel.
-82-
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TABLE 2-15. STATE AMBIENT AIR QUALITY
STANDARDS FOR PHOTOCHEMICAL OXIDANTS
Standards (In Micrograms/Cubic Meter)
Area
Maximum 1-hour concentration (not
to be exceeded more than once per
year)
Federal
Primary
Secondary
Arizona
Colorado
Montana
North Dakota
4
New Mexico
South Dakota
Utah
Wyoming
160
160
160
160
160
160
0.06 ppm
125
160
160
ppm = parts per million
-83-
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TABLE 2-16. STATE AMBIENT AIR QUALITY
STANDARDS FOR HYDROCARBONS
Area
Federal
Primary
Secondary
Arizona
Colorado
Montana
North Dakota
New Mexico
South Dakota
Utah
Wyoming
Standards (In Micrograms/Cubic
Maximum 3-hour Concentration
to be exceeded more than once
year)
160
160
160
160
160
160
160
125
160
160
Meter)
(not
per
-84-
-------
TABLE 2-17.
STATE AMBIENT AIR QUALITY
STANDARDS FOR NITROGEN OXIDE
Area
Standards (In Micrograms/Cubic Meter)
Maximum 1-hour
Concentration
(not to be ex-
ceeded over
one percent of
the time in any
three-month
period)
Annual Arith-
metic Mean
Maximum 24-hour
Concentration
(not to be ex-
ceeded more than
once per year)
Federal
Primary
Secondary
Arizona
Colorado
Montana
North Dakota
New Mexico
South Dakota
Utah
Wyoming
100
100
100
100
100
100 200
100
100
100
100
200
250
-85-
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TABLE 2-18.
ADDITIONAL STATE AMBIENT
AIR QUALITY STANDARDS3
State
Pollutant Arizona Colorado
Dustfallb
Coefficient ofc
Haze
Sulfationd
Suspended6
Sulfate
Sulfuric Acidf
Mist
Hydrogen
Sulfide
Lead1
Beryllium
Flourides
Montana
15/30
0.25/
0.50
4.0/
12.0
4/12/
30
0.3/8
0.5
5.0
0.01
0.80/
0.3
North New
Dakota Mexico
15/30
0.4 0.4
0.25/
0.50
4.0/
12.0
4/12/
30
0.32/8 0.3h
0.54
South
Dakota Utah Wyoming
5/10
0.2 0.4
0.25/
0.50
0.28/8
0.5
40/70
ug/m3
0.80/
0.3
yg/m3 = micrograms per cubic meter
"Blanks indicate no standard.
''Measured in tons per square mile per month, three-month average.
GCohs per 1,000 linear feet, maximum annual geometric mean.
''Top figure: annual average; bottom figure: one month maximum. Both figures in
milligrams of sulfur trioxide per 100 square centimeters.
"Top figure: maximum annual average; bottom figure: maximum 24-hour concentration
not to be exceeded more than one percent of the time. Both figures in micrograms
per cubic meter.
^Maximum arithmetic annual average; maximum 24-hour concentration not to be
exceeded more than one percent of the time; and hourly average not to be exceeded
over one percent of the time; respectively. All figures in micrograms per cubic
meter.
*Top figure: not to be exceeded more than twice in any five consecutive days; bot-
tom figure: not to be exceeded more than twice a year. All figures in 1/2 hour
averages in parts :>er million (ppm) .
^ppm 1-hour average-
^Micrograms per cubic meter, 30-day average.
JMicrograms per cubic meter, 30-day average.
''Top figure: hydrogen flourides, measured in micrograms per cubic meter, 24-hour
average; bottom figure: gaseous flourides, measured in micrograms per cubic centi-
meter, maximum 30-day value.
-86-
-------
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-87-
-------
nitrogen oxides from fossil-fueled steam generators. Among the
mobile sources, diesel and gasoline engines are commonly regulated
by SIP. Certain industries, such as petroleum refining, are the
focus of state emission standards. As was the case with state
ambient air quality criteria, state emission standards are usually
set below the required federal level. Tables 2-18 through 2-25
provide a more detailed description of these state emission stan-
dards .
TABLE 2-20. STATE EMISSION LIMITATIONS
FOR VISIBLE PARTICULATES
State Limitations3
Arizona Number 2 Ringleman
Colorado 20 percent opacity except for 40 percent
during experimental operation of a plant
for up to 3 minutes per hour
Montana Number 1 Ringleman
New Number 1 Ringleman, except for 1 minute of
Mexico 30 minutes
North Number 1 Ringleman, except for 4 minutes
Dakota of 60 minutes
South Number 1 Ringleman, or 20 percent opacity
Dakota except for Number 3 Ringleman, or 60 per-
cent opacity for 3 minutes of 60 minutes
Utah Number 1 Ringleman, or 20 percent opacity
Wyoming 20 percent opacity, except 40 percent for
up to 6 minutes per hour
aA Ringleman is an index value to compare visibility interfer-
ence from plumes. The index is based on a set of progressively
darker shades that represent opacity and can be compared with
a plume. A Ringleman value of 1 is near 20 percent plume opac-
ity; 2 equals 40 percent opacity; 3 equals 60 percent opacity.
-88-
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TABLE 2-21.
STATE EMISSION LIMITATIONS
FOR FUGITIVE DUST PARTICULATES
State
Limitations
Arizona
Colorado
Montana
New
Mexico
North
Dakota
South
Dakota
Utah
Wyoming
No construction action to be taken without using
reasonable precautions to prevent fugitive dust.
Less than or equal to 20 percent opacity and no
visible dust to extend over property line. Except
open mines are allowed to exceed the opacity limit
for 3 minutes per hour if the wind is over 30 mph.
Also, no more than 1 acre of land can be disturbed
for an open mine unless dust control procedures are
used. A permit is required for new source fugitive
dust and will be granted only if the control pro-
cedures will be used (dust palliative added, loads
covered or wetted, speed controlled, etc.). For
certain parts of the state an additional permit is
required for unpaved roads or parking lots; if over
165 vehicles per 3 days, then dust control proce-
dures must be used.
No person shall cause construction to raise dust
without reasonable prevention procedures.
No specific regulation
No person shall create airborne particulates unless
preventative measures are used such as water, cov-
ered loads, oil, etc.
No specific regulation
No specific regulation
Fugitive dust shall be controlled by covers, wet-
ting,- etc.
mph = miles per hour
-89-
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TABLE 2-22.
STATE EMISSION LIMITATIONS
FOR FUEL BURNING PARTICULATES
State
Limitations3
Arizona Based on Btu output, computed on a complex table
Colorado 0.5 pounds per million Btu input, decreasing to
0.1 pounds per million Btu input for large plants
Montana Based on graphed relationships
New
Mexico
North
Dakota
South
Dakota
Utah
Wyoming
No general regulation
Based on graphed relationships; 0.10 pounds per
million Btu heat input
3 pounds per million Btu of heat input
None
None
Btu = British thermal unit
In this situation, the fuel is burned for indirect heating
(producing steam or hot water) and not where there is direct
contact between the heat and the product.
-90-
-------
TABLE 2-23.
STATE EMISSION LIMITATIONS
FOR DIESEL ENGINE PARTICULATES
State
Limitations *
Arizona General: Number 2 Ringleman. Off-highway: exempt
from Number 2 Ringleman emission limitation for vis-
ible particulates for 10 seconds at a time. Locomotive:
exempt from Number 2 Ringleman emission limitation for
40 seconds. Also exempt from the same limitations:
for 4 minutes after loading; for 30 minutes after cold
start; for 3 minutes during adjustment; or if over
5,000 feet elevation where a Number 2.5 Ringleman
applies.
Colorado General: over 8,000 feet elevation, 10 seconds of 30
percent opacity; under 8,000 feet elevation, 10 sec-
onds of 40 percent opacity. Off-highway: exempt from
the general standard for 15 minute blocks (nonconsecu-
tive). Locomotive: over 6,000 feet elevation, less
than or equal to 20 percent opacity, with exceptions
for 30 minutes after cold start; 10 minutes per hour
during adjustment; 4 minutes after loading.
Montana None
New Mexico General: over 8,000 feet elevation, less than or
equal to Number 1.5 Ringleman, except for 10 second
block; under 8,000 feet elevation, less than or equal
to Number 2 Ringleman, except for 10 second block.
Exceptions include cold start or oil well drilling or
servicing rigs. Off-highway: exempt from general
limitation above. Locomotive: over 8,000 feet eleva-
tion, Number 1 Ringleman, except for 10 seconds.
North
Dakota
South
Dakota
Utah
None
General: less than or equal to Number 1 Ringleman, or
20 percent opacity except for 15 seconds.
General: less than or equal to Number 1 Ringleman,
except for 3 minutes every hour.
Wyoming General: below 7,500 feet elevation, less than or
equal to 20 percent opacity, except less than or equal
to 30 percent opacity for up to 10 seconds. Excep-
tions: cold starts, adjustments. No source may ex-
ceed 40 percent opacity for more than 6 minutes per
hour.
aA Ringleman is an index value to compare visibility interference from
plumes. The index is based on a set of progressively darker shades
that represent opacity and can be compared with a plume. A Ringleman
value of 1 is near 20 percent plume opacity; 2 equals 40 percent opac-
ity; 3 equals 60 percent opacity.
-91-
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TABLE 2-24.
STATE EMISSION LIMITATIONS
FOR GASOLINE ENGINE PARTICULATES
State
Limitations'
Arizona
Colorado
Montana
New
Mexico
North
Dakota
South
Dakota
None
4-cycle: less than or equal to 5 seconds of vis-
ible contaminant; 2-cycle: less than or equal to
20 percent opacity, except for 10 seconds; oper-
ating permit required for engines over 1,000 hp •
None
None
,None
Less than or equal to Number 1 Ringleman, or 20
percent opacity, except for 15 seconds .
Utah Less than or equal to Number 1 Ringleman, or 20
percent opacity, except for 3 minutes per hour.
Wyoming Less than or equal to 20 percent opacity, except
for 5 seconds.
hp = horsepower
aA Ringleman is an index value to compare visibility interfer-
ence from plumes. The index is based on a set of progressively
darker shades that represent opacity and can be compared with a
plume. A Ringleman value of 1 is near 20 percent plume opacity;
2 equals 40 percent opacity; 3 equals 60 percent opacity.
-92-
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TABLE 2-25.
STATE EMISSION LIMITATIONS
FOR GENERAL SULFUR
State
Limitations
Arizona
Colorado
Montana
New
Mexico
North
Dakota
South
Dakota
Utah
Wyoming
Less than or equal to 10 percent of input sulfur
emitted into the air
Less than or equal to 500 ppm sulfur (all forms)
from any process and not more than 5 tons per day
from any one plant unless emitted at less than or
equal to 150 ppm levels.
None
None
None
Sulfur emissions from industrial processes should
not exceed the sulfur ambient levels.
For new installations with potential sulfur emis-
sions over 250 tons per year as a gas or mist,
they must install such controls as will keep dis-
charges less than or equal to 20 percent of input
sulfur.
None
ppm = parts per million
TABLE 2-26.
STATE EMISSION LIMITATIONS
FOR CARBON MONOXIDE
State
Limitations
Arizona No carbon monoxide emissions from industrial pro-
cesses without the use of complete secondary com-
bustion .
Wyoming No carbon monoxide emissions shall exceed the am-
bient standard.
-93-
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TABLE 2-27.
STATE EMISSIONS
LIMITATIONS FOR ODORS
State
Limitations
Arizona None
Colorado No odors allowed over residential-commercial
areas which are detectable after dilution
with seven volumes of air, unless the best
practicable technology is used. For all
other lands the test is conducted with 15
volumes, but in no case is an odor to be
detectable after dilution with 127 volumes
of air.
Montana Odors shall not extend beyond the property
line of the source.
New
Mexico
North
Dakota
South
Dakota
Utah
Wyoming
None
None
If the majority of a designated panel of
five people agrees that an odor unreasonably
interferes with the enjoyment of life or
property, the owner of the source shall com-
ply with suggestions of the panel„
None
Odors shall not be detectable beyond the
property line after dilution with seven
volumes of air.
-94-
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The 1977 Amendments1 require SIP to include permit programs
to prevent significant air quality deterioration and nonattain-
ment of standards and also to include air quality maintenance re-
quirements to go into effect by July 1, 1979. SIP revised after
that date must assure attainment of national ambient air quality
standards for all pollutants by December 31, 1982. If attainment
of standards for photochemical oxidants or carbon monoxide is not
possible by 1982, a second plan revision must be submitted to in-
sure attainment by December 31, 1987. The SIP revision must
specify the amount of new source growth to be permitted. New
sources must achieve the lowest achievable emission rate, and SIP
must require reasonably available control measures for existing
sources. If a state's implementation plan after July 1, 1979
does not provide for compliance, EPA may not allow new precon-
struction permits, may halt sewage construction grants, and may
withhold new highway funds from that state.
2.9 WATER QUALITY
While the first water quality regulations date back to the
1980's, it was another 70 years before water pollution came to be
viewed as a serious national problem. As was noted above, water
quality policies which evolved in the U.S. in the decade after
1965 served as a model for much of the air quality and environ-
mental protection legislation passed in the 1970's.
'Clean Air Act Amendments of 1977, Pub. L. 95-95, 91 Stat.
685.
-95-
-------
2.9.1 Federal Controls
2.9.1.1 Legal Framework
The federal law affecting water quality originated with the
1899 Rivers and Harbors Act1 (also known as the "Refuse Act")
which made it unlawful to discharge any refuse except liquid sew-
age into navigable waters or to leave any refuse on the banks of
such navigable waters.2 The 1924 Oil Pollution Act,3 directed
toward the control of oil spills, placed more restrictive stan-
dards on the pollution of navigable waters by petroleum carriers.1*
In 1948, the Water Pollution Control Act5 was passed. This leg-
islation mandated the monitoring of the quality of navigable wa-
ters, but it did not establish water permits or standards.
The Federal Water Pollution Control Act was amended in 1956,
1961, 1965, 1966, 1970, 1972, and 1977.6 This series of acts
is the legal backbone for clean water, providing for wastewater
treatment construction and other grants, standards, enforcement
'Rivers and Harbors Act of 1899, Pub. L. 55-425, 30 Stat.
1121.
2Beatty, Haradon. "Federal Water Pollution Control in Tran-
sition," in Rocky Mountain Mineral Law Foundation, ed. Rocky
Mountain Mineral Law Institute: Proceedings of the 18th Annual
Institute. New York, N.Y.: Matthew Bender, 1973, p. 497.
3Oil Pollution Act of 1924, Pub. L. 68-238, 43 Stat. 604.
''Ross, William M. Oil Pollution as an International Problem.
Seattle, Wash.: University of Washington Press, 1973,, p. 82.
5Water Pollution Control Act, Pub. L. 80-845, 62 Stat. 1155.
6The name was changed to the Clean Water Act by the 1977
amendments, Pub. L. 95-217, 91 Stat. 1566.
-96-
-------
procedures, and research programs. This legislation was largely
a response to the inability of the states to adequately control
pollution problems on interstate or navigable waters.
Other federal legislation of particular importance to western
energy development are: the 1973 memorandum of agreement between
the U.S. and Mexico regarding the salinity of the Colorado River,1
the 1974 Colorado River Basin Salinity Control Act,2 and the 1974
Safe Drinking Water Act.3 The memorandum of agreement with Mexico
had the effect of limiting the salinity of the Colorado River
water flowing into Mexico, while the Colorado River Salinity Con-
trol Act authorized the construction, operation and maintenance
of certain works in the Colorado River Basin to control water
salinity. Consistent with that legislation, in December 1974,
EPA, under the authority of Section 303 of the Federal Water Pol-
lution Control Act (FWPCA) Amendments of 1972, ** published a regu-
lation requiring that the average salinity in the Lower Colorado
River be maintained at or below the 1972 level. This standard
was 723 milligrams per liter (mg/£) below Hoover Dam, 747 mg/£
below Parker Dam, and 879 mg/£ below Imperial Dam.5
The Safe Drinking Water Act established goals to protect
public health and welfare and implemented procedures to protect
:Minute No. 241, Department of State Bulletin, Vol. 67
(1972), p. 198.
2Colorado River Basin Salinity Control Act of 1974, Pub. L.
93-320, 88 Stat. 266.
3Safe Drinking Water Act of 1974, Pub. L. 93-523, 88 Stat.
1660.
^Federal Water Pollution Control Act Amendments of 1972,
Pub. L. 92-500, 86 Stat. 816.
541 Fed. Reg. 13656-57 (March 31, 1976).
-97-
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TABLE 2-28. MAXIMUM ORGANIC AND
INORGANIC CONTAMINANT LEVELS
ALLOWABLE IN DRINKING WATER
Contaminant
Inorganic
Arsenic
Barium
Cadmium
Chromium
Lead
Mercury
Nitrate
Selenium
Silver
Organic
Endrin
Lindane
Methoxychlor
Toxaphene
Chlorophenoxys
2,3,5-TP Silvex
Level (ing/liter)
0.0500
1.0000
0.0100
0.0500
0.0500
0.0020
10.0000
0.0100
0.0500
0.0002
0.0040
0.1000
0.0050
0.1000
0.0100
mg/liter = milligrams per liter
Source: Safe Drinking Water Act of 1974,
Pub. L. 93-523, 88 Stat. 1660.
public drinking water. The act, which significantly extended the
authority of the EPA, is applicable to any water supply with at
least fifteen connections or which regularly serves 25 individuals
daily for at least 60 days per year. The 1974 act provides for
state enforcement of regulations which became effective in mid-
1977. And this law requires the promulgation of national under-
ground wastewater and fluid injection regulations. Tables 2-28
through 2-31 identify the maximum contaminant levels for inor-
ganic, organic, turbidity, microbiological, radioactive, and fluo-
ride pollutants permitted under the Safe Drinking Water Act.
-98-
-------
TABLE 2-29.
MAXIMUM TURBIDITY AND
MICROBIOLOGICAL CONTAMINANT
LEVELS ALLOWABLE IN DRINKING WATER
Contaminant
Level
Turbiditya
Microbiological
The monthly average should be less than one
turbidity unit (TU), except that up to five
TU's will be allowed if demonstrated that the
high turbidity will not affect disinfection.
Coliform numbers shall not exceed any one of
the following:
(1) one per 100 m£ as the arithmetic mean of
all samples examined per month
(2) four per 100 m£ in more than one sample
when less than 20 are examined per month
(3) four per 100 m£ in more than five percent
of the samples when 20 or more are exam-
ined per month.
m£ = milliliters
Source: Safe Drinking Water Act of 1974, Pub.L. 93-523, 88 Stat. 1660,
aApplies only to water systems using surface water in whole or
in part.
The standards listed are for the membrane filter technique,
although standards for other analytical methods are available.
More than 20 samples per month are required for communitites
over 18,000 population.
-99-
-------
TABLE 2-30. MAXIMUM RADIOACTIVE CONTAMINANT
LEVELS ALLOWABLE IN DRINKING WATER
Contaminant
Level (pCi/£)
Combined radium-226 and radium-227
Gross alpha particle activity (in-
cluding radium-226, but excluding
radon and uranium)
Tritium (total body)
Strontium-90 (bone marrow)
15
20,000
8
pCi/£ = picocurries per liter
Source: Safe Drinking Water Act of 1974, Pub. L. 93-523,
88 Stat. 1660.
TABLE 2-31.
MAXIMUM FLOURIDES CONTAMINANT
LEVELS ALLOWABLE IN DRINKING WATER
Maximum Daily Air Temperature
At Water System Site
Fahrenheit
Celsius
Levels of Flourides
(in milligrams/liter)
33.7 and below
53.8 to 58.3
58.4 to 63.8
63.9 to 70.6
70.7 to 79.2
79.3 to 90.5
12.0 and below
12.1 to 14.6
14.7 to 17.6
17.7 to 21.4
21.5 to 26.2
26.3 to 32.5
2.4
2.2
2.0
1.8
1.6
1.4
Source: Safe Drinking Water Act of 1974, Pub. L. 93-523, 88
Stat. 3660.
-100-
-------
As was the case with air quality controls, the standards for
water quality at the federal level are subject to constant modi-
fications. With the FWPCA Amendments of 1972, the federal govern-
ment's water quality program set goals of: water clean enough
for boating and fishing by 1977; water clean enough for swimming
by 1983; and zero discharge of pollutants into navigable water
by 1985.1 Additional amendments passed in late 1977 extend the
1977 and 1983 deadlines by one year, and make adjustments in
standards and permitting procedures.2
2.9.1.2 Administrative Authority
The 1965 Water Quality Act3 created the Water Pollution Con-
trol Administration to oversee federal water quality programs.
In 1966, this function was transferred to the DOI and in 1970 to
EPA. The FWPCA provided for the establishment of a national sys-
tem of permits to be issued by either the EPA or the states with
EPA approval. The permit must specify the substances to be dis-
charged and how and during what time period water quality will
be affected. State programs must include standards for monitor-
ing, reporting, and enforcement. And EPA may require specified
minimum levels of personnel and funding. However, states are
authorized to promulgate standards which are no less stringent
than those specified by EPA.
federal Water Pollution Control Act Amendments of 1972,
Pub. L. 92-500, 86 Stat. 816, 33 U.S.C.A. §§ 1251 et seq. (Supp.
1976) .
2Clean Water Act of 1977, Pub. L. 95-217, 91 Stat. 1566.
3Water Quality Act of 1965, Pub. L. 89-234, 79 Stat. 903.
-101-
-------
The requirements of the FWPCA do not supersede water quality
standards affecting navigation under the 1899 Rivers and Harbors
Act1 but modify their administration. The Army COE con-
tinues to play a role in the administration of water quality
controls through its authority to issue permits for dredging and
filling near navigable streams with flows greater than three cubic
feet per second,2 but discharge permits are not issued by EPA, as
discussed below.
2.9.1.3 Regulatory Provisions
A two-part program was adopted in FWPCA for the; application
of effluent limitations. First, by July 1978, all "point source"
dischargers (municipal and industrial facilities) must apply the
"best practicable technology" (or BPT) for pollution control.
The BPT standard establishes effluent limitations based primarily
on the state-of-the-art of practical pollution control technol-
ogies in specific industries or municipalities. The current
primary and secondary effluent regulations are shown in Tables
2-32 and 2-33. That is, EPA establishes BPT effluent limitations
for discharges as criteria for permit evaluation under procedures
termed the National Pollution Discharge Elimination System (or
NPDES). Permits issued under NPDES allow the state and federal
governments to regulate water pollution according to the problems
faced by various industries and municipalities and the technol-
ogies available for resolving pollution problems.
fivers and Harbor's Act of 1899, Pub. L. 55-425, 30 Stat.
1121.
2Federal Water Pollution Control Act Amendments of 1972,
Pub. L. 92-500, § 404, 86 Stat. 884.
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TABLE 2-32.
CURRENT EFFLUENT REGULATIONS OF THE
FEDERAL WATER POLLUTION CONTROL ACT3
Type of Facility
or Pollutant
Treatment Required
Industrial
Municipal
Toxic Pollutants
(seriously harm-
ful to human or
other life)
Radiological, Chem-
ical or Biological
Warfare Agents or
High Level Radioac-
tive Waste
Thermal Discharges
Oil or Hazardous
Substances
-"best practicable control technology
currently available" as defined by the
EPA administrator by July 1, 1978.b
-"best available technology economically
achievable" as determined by the EPA
administrator by July 1, 1984. Limits
are based on categories or classes of
industries.
-National performance standards--includ-
ing zero-discharge, if practicable--for
each new category of source.
-Effluent limitations based on secondary
treatment by July 1, 1978.b
-best practicable technology over the
life of the works by July 1, 1984.b
-Effluent limitations including prohibi-
tion of discharge, if needed, to pro-
vide "an ample margin of safety" set by
the EPA administrator.
-Discharge prohibited
-Effluent limitations set to ensure a
balanced population of fish, shellfish
and wildlife.
-No discharge into U.S. waters, adjoining
shorelines or contiguous zone waters.
aFederal Water Pollution Control Act Amendments of 1972, Pub. L.
92-500, 86 Stat. 816. Adopted from Congressional Quarterly, Inc.
Congress and the Nation, Vol. Ill: 1969-1972. Washington, D.C.:
Congressional Quarterly, 1973, p. 797.
bData reflects the change in the law made by the Clean Water Act
of 1977, Pub. L. 95-217, 91 Stat. 1566.
-103-
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TABLE 2-33. SECONDARY TREATMENT STANDARDS
Materials
Treatment
BODC
Suspended Solids
Fecal Coliforms
(1) The arithmetic mean of values for effluent.
samples collected in a period of 30 consecutive
days shall not exceed 30 mg/£.
(2) The arithmetic mean of values for effluent
samples collected in a period of 7 consecutive
days shall not exceed 43 mg/£.
(3) The arithmetic mean of values for effluent
samples collected in a period of 30 consecutive
days shall not exceed 15 percent of the arith-
metic mean of values for influent samples col-
lected at approximately the same time during
the same period (85 percent removal).
(1) The arithmetic mean of values for effluent
samples collected in a period of 30 consecutive
days shall not exceed 30 mg/
-------
The second phase of the federal water quality program will
move beyond BPT standards to require each industry or city to
reach "best available technology" (BAT) criteria by 1984. BAT stan-
dards are based on industries or municipalities accepting those con-
trol technologies which are economically achievable and which will
result in reasonable progress toward the national goal of eliminat-
ing effluent discharges. The ultimate goal of the federal effort
is to have BAT standards eliminate pollutant discharges by 1985.1
An important exception to these regulatory provisions is the
separate standard for "new sources." A new source is defined as
a process or operation which has been constructed or substantially
modified after the EPA has adopted the effluent standards for that
type of industry discharge. New source permits require BAT stan-
dards , and they exempt the operation from future changes or modi-
fications in the regulations for ten years.2
Individual discharge permits are generally evaluated against
a specific BPT. For technologies without specific effluent limi-
tations, state effluent or water quality standards play a signif-
icant role in permit processing. Permits must also reflect cer-
tain monitoring requirements, and the EPA may require a source to
install such devices.
As part of a consent agreement following a suit by NRDC, the
EPA has also established limits for "toxic" pollutants.3 These
^osenbaum, Walter A. The Politics of Environmental Concern,
2nd ed. New York, N.Y.: Praeger, 1977, pp. 157-59.
2Parenteau, Patrick A., and Nancy Tauman. "The Effluent
Limitations Controversy: Will Careless Draftsmanship Foil the
Objectives of the Federal Water Pollution Control Act Amendments
of 1972?" Ecology Law Quarterly, Vol. 6 (No. 1, 1976), pp. 1-62.
Environmental Reporter Decisions, June 26, 1976, p. 2120.
-105-
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standards are to provide for "ample safety" and can prohibit the
discharge of a toxic pollutant altogether. Several pesticides,
benzidene, and polychlorinated biphenyls were subsequently desig-
nated as toxic pollutants , and standards were established regarding
their discharge. In 1976, Congress enacted the Toxic Substances
Control Act,1 thereby placing greater emphasis on the control of
such substances and greatly expanding EPA's responsibility for
identifying and controlling them.
The federal government's water quality program also deals
with "nonpoint sources," such as those that result in "runoff,
seepage, and percolation of pollutants to surface and groundwaters
through diffuse and undefined routes."2 Examples of nonpoint
sources are irrigated and nonirrigated farming, mining, urban
runoff, and rural sanitation. The FWPCA establishes procedures
under which state or regional agencies are required to establish
nonpoint source regulatory programs.
2.9.2 Indian Controls
Indian tribes are required to comply with federal water pol-
lution standards since all EPA statutes are of general applica-
bility, and these statutes generally authorize the EPA to estab-
lish environmental standards applicable to Indian lands. For
example, the NPDES permit requirements of the FWPCA apply to
Indian lands. In general, state programs and implementing stat-
utes do not apply to Indian lands unless the enabling statute
Substances Control Act of 1976, Pub. L. 94-469, 90
Stat. 2003.
2U.S., Environmental Protection Agency. Clean Water; Re-
port to Congress—1974. Washington, D.C.: Environmental Pro-
tection Agency, 1974, p. 14.
-106-
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explicitly confers jurisdiction over Indians to the state. The
EPA does not interpret its enabling legislation as conferring im-
plementation and enforcement authority over Indians to the states;
however, there is considerable debate on this question. One EPA
official summarized the agency's position on this point as follows;
Where there is a dispute over conflicting Tribal-State
jurisdiction, EPA will not attempt to alter or define
the present legal relationship. Thus, where States have
not assumed jurisdiction over the reservations, EPA will
accept, within the constraints of EPA statutes, the pro-
posals by Indian governing bodies of their own pollution
standards.l
2.9.3 State Controls
Under the terms of the 1965 Water Quality Act2 and the
1970 Water Quality Improvement Act,3 the states had been en-
couraged to develop water quality standards. When the states
demonstrated a reluctance or inability to establish and enforce
such regulations, the 1972 FWPCA Amendments'* mandated federal
water quality controls. Under the provisions of the FWPCA,
states are permitted to promulgate antipollution standards,
provided that these standards are consistent with or more strin-
gent than federal standards. Thus, the current status of
state water quality controls is as follows: the states' old
1Will, J. Kemper. Questions and Answers on EPA's Authority
Regarding Indian Tribes.Denver,Colo.:U.S., Environmental
Protections Agency, Region VIII, 1976.
2Water Quality Act of 1965, Pub. L. 89-234, 79 Stat. 903.
3Water Quality Improvement Act, Pub. L. 91-224, 84 Stat. 91
(1970).
^Federal Water Pollution Control Act Amendments of 1972,
Pub. L. 92-500, 86 Stat. 816.
-107-
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(1965-1970) water quality standards are subject to change by the
state governments, with each change subject to EPA approval; the
state may lower ambient standards to reflect higher water quality,
thus requiring EPA to change the effluent discharge limitations,
since the FWPCA specifically requires the EPA to enforce state
laws that are more stringent than federal standards. Further, the
FWPCA requires the states to identify various water bodies and to
specify the beneficial use that can be made of each body (indus-
trial, recreational, etc.). Then the states must submit to EPA
ambient water quality standards which would sustain these specific
uses.
EPA guidelines list four essential requirements which must
be met by the states to gain approval of state permit programs:
a state statute prohibiting the discharge of pollutants except as
authorized by permit; the permit issued under a state program
must require compliance with all effluent limitations; the state
must have adequate monitoring provisions and a right of entry to
inspect; and the state must adopt adequate enforcement provisions.
It should be noted that the states are not required to establish
such a permit program, but if the state chooses not to adopt its
own permit procedures, it forfeits enforcement authority to the
federal government.
Currently four states in the eight state western region have
an approved state permit program: Colorado, North Dakota, Mon-
tana, and Wyoming. Three other states—Arizona, Utah, and South
Dakota—are currently in the process of attempting to gain fed-
eral approval of their state program. New Mexico is no longer
actively seeking such approval. The penalties outlined in the
existing state statutes are identical to those promulgated in
the FWPCA. In effect, there is very little procedural or
-108-
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statutory difference in state or federal control of permit pro-
grams, although uncertainties remain regarding the enforcement of
these standards.
As of yet, the EPA has published only a few guidelines for
effluent standards for specific technologies. Therefore, in the
interim, many state water quality standards continue to apply.
In the West, there is a substantial variation among water quality
standards both within states (according to use) and among the
eight states for the various pollutants. Tables 2-34 through
2-44 outline the range of state water quality standards for dis-
solved oxygen, nitrates, phosphates, acidity, temperature, heavy
metals, mercury, turbidity, settleable solids, oil, bacteria, and
radioactivity. Table 2-45 then outlines the state classification
systems for water use.
2.10 WATER USE
Although the quality and quantity aspects of water policy
are closely related, the legal and institutional frameworks for
each have developed independently at the federal level. Concern
for water quality, as discussed in the previous section, has been
a much more recent phenomenon than the need to develop mechanisms
for controlling water use (quantity). The legal underpinnings
for water use regulation date back to English common law tradi-
tions, while water quality standards are the result of the en-
vironmental movement of the last decade.
Obtaining water for energy activities is problematical in
the arid West, where considerable uncertainty exists regarding
the amount of water in the region not already allocated. Some
experts argue that there is simply insufficient water to support
extensive energy development in the region, while others maintain
-109-
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TABLE 2-34. STATE WATER QUALITY
STANDARDS FOR DISSOLVED OXYGEN
State
Arizona
Colorado
Montana
New Mexico
North Dakota
Utah
Wyoming
Standards
Cold Water
Fishery
6
6
7a
6
5
6
6
(Milligrams
Warm Water
Fishery
6
5
5b
5
5.5
6
Per Liter)
Miscellaneous
PWS=4; IND=3
PWS=5C
PWS = Public Water Supply
IND = Industrial
aFigure is for Class D-l. Class D-2 standard is 6 milli-
grams per liter.
bFigure is for Class D-3.
cNot more than 5 milligrams per liter 20 percent of the
time. Alternate standard is 10 milligrams per liter 10
percent of the time.
-110-
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TABLE 2-35. STATE WATER QUALITY STANDARDS FOR NITRATES
State
Standard
Arizona All water of the state shall be free from materials attributable
to domestic or industrial wastes...in amounts sufficient to taste
or odor in water or detectable off-flavor in the flesh of fish...
or in amounts sufficient to interfere with any beneficial use of
the water.
Colorado No specific criteria, but the narrative statement concerning
toxic materials may restrict nitrates at levels below the occur-
rence of damage to aquatic life.
Montana Class A (Closed)—None allowed in addition to concentrations nat-
urally present. Class A (Open)—1962 USPHS standards and no
induced variation beyond 10 percent of receiving water. Class
B—No excess nutrients which cause nuisance aquatic growth. Con-
centrations should conform to USPHS standards after treatment.
Class C—Concentrations shall be below levels known to be of pub-
lic health significance. No excess nutrients which cause nuisance
aquatic growth. Class Dl—Maximum allowable concentrations shall
be less than acute problem levels as revealed by bioassay. No
excess nutrients which cause nuisance aquatic growth. Class D2,
D3—same as Dl. Class E—Concentrations to be less than those
demonstrated to be deleterious to livestock, plants or their sub-
sequent consumption by humans.
New General statement limits organics in receiving waters to concen-
Mexico trations which will not change the ecology of receiving waters to
an extent detrimental to existing forms of life or which are toxic
to human, plant, fish and animal life.
North The standard for nitrates is intended as a guideline since each
Dakota water body has unique characteristics. Basic standard—1.0 mg/£.
However, in no case shall the standard for nitrates exceed this
level for any waters used as a municipal or domestic drinking
supply.
Utah No specific statement, other than general restriction making it
unlawful to discharge substances in such a way to interfere with
the stated water use.
Wyoming No specific criteria or general statement that could be applied
to nitrates.
USPHS = U.S. Public Health Service mg/£ = milligrams per liter
-111-
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TABLE 2-36. STATE WATER QUALITY
STANDARDS FOR PHOSPHATES
State
Standard
Arizona
All waters of the state shall be free from mate-
rials attributable to domestic or industrial
wastes... (same as statement for nitrates,
see Table 2-35).
No specific criteria (see Table 2-35).
No excess nutrients which cause nuisance aquatic
growth.
No specific criteria or narrative statement.
The standard for phosphates (1.0 mg/£) is in-
tended as a guideline limit, since each stream
or lake has unique characteristics.
No specific statement or criteria other than a
general statement making it unlawful to dis-
charge substances in such a way to interfere
with the stated water use.
Wyoming No specific criteria'or narrative statement.
mg/£ = milligrams per liter
Colorado
Montana
New
Mexico
North
Dakota
Utah
-112-
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TABLE 2-37,
STATE WATER QUALITY STANDARDS
FOR ACIDITY/ALKALINITY (pH)
State
Standard (Milligrams Per Liter)
Arizona
Colorado
Montana
New Mexico
North Dakota
Utah
Wyoming
6.5-8.6
Public Water Supply 6.0-9.0
Fish and Wildlife 6.5-8.5
Industrial 5.0-9.0
Class A (Closed) none
Class A (Open) 6.5-8.5
Class B 6.5-9.5
Class C 6.5-9.5
Class D-l 6.5-8.5
Class D-2 6.0-9.0
Class D-3 6.5-9.5
Class E 6.5-9.5
Class F 6.5-9.5
6.6—8.6
6.0-9.0 or 7.0-8.5, depending
on the specific river listed
6.5-8.5 maximum variation + 0.5,
but industrial use 6.5-9.0
6.5-8.5 for streams where water
quality data is inadequate and
some specified rivers have more
stringent standards
-113-
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TABLE 2-38.
STATE WATER QUALITY
STANDARDS FOR TEMPERATURE
State
Standard
Arizona 93 degree maximum, not more than 5 degrees F change. Cold water
fish: November-March—55 degrees F maximum; April-October—70
degrees F maximum with not more than 2 degrees F change.
Colorado Class Bl (cold water fish)—70 degrees maximum. No controllable
temperature change will be permitted which will interfere with the
spawning and other aspects of fish life. Abrupt changes in tem-
perature must be avoided and the normal pattern of diurnal and
seasonal fluctuations must be preserved. The maximum allowable
rise in temperature resulting from waste discharges in streams
or lakes shall be 2 degree F. No warming discharge permitted in
lakes. Class B2 (warm water fish)—90 degrees F maximum. No con-
trollable temperature change will be permitted which will inter-
fere with spawning and other aspects of fish life. Abrupt changes
in temperature must be avoided and the normal pattern of diurnal
and seasonal fluctuations must be preserved. The maximum allow-
able temperature increase due to waste discharge in streams will
be 5 degrees F, and the maximum increase allowable from waste dis-
charges in lakes is 3 degrees F. No warming discharges to lakes.
Class Bl and B2—in temperature measurement, allowance shall be
made for a mixing zone. Provisions shall be made for adequate
mixing and free movement of aquatic biota shall be permitted in
any waters of the state. Class C—(industrial)—the temperature
shall not exceed 93 degrees F. Class D—(irrigation)—no tempera-
ture criteria assigned.
Montana Public Water Supply—no allowable change to naturally occurring
water temperature. Salmonid fish—increases: 32 degrees F to 67
degrees F—2 degrees F maximum. Classes Dl and D2—above 67
degrees F—0.5 degrees F maximum; decreases—over 55 degrees F—
2 degrees F maximum per hour; 55 degrees F to 32 degrees F—2
degrees F maximum, provided that water temperature must be below
40 degrees F in the winter and above 44 degrees F in the summer.
Nonsalmonid fish—(Class D3)—increase—32 degrees F to 85
degrees F—4 degrees F maximum; 85 degrees F—0.5 degrees F max-
imum; decreases—same as Salmonid fish. Industrial—no allowable
temperature change in sufficient quantities to adversely affect
the use indicated.
(continued)
-114-
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TABLE 2-38.
STATE WATER QUALITY STANDARDS
FOR TEMPERATURE (continued)
State
Standard
North
Dakota
New
Mexico
Utah
Wyoming
85 degrees F maximum, allowable rise 5 degrees F above natural.
Warm water fish—93 degrees F maximum, 5 degrees F change limit.
Cold water fish—70 degrees F maximum, 2 degrees F change limit.
Allowable rise of 9 degrees F for the lower reach of the Pecos
River.
Cold water fish—68 degrees F maximum, 2 degrees F change limit.
Warm water fish—80 degrees F maximum, 4 degrees F change limit.
For streams where natural temperatures do not exceed 70 degrees F,
wastes of other than natural origin shall not be discharged in
amounts which will result in an increase of more than 2 degrees
F over existing temperatures. For streams where natural tempera-
tures exceed 70 degrees F, wastes of other than natural origin
shall not be discharged in amounts which will result in an in-
crease of more than 4 degrees F over existing temperatures. Maxi-
mum allowable temperatures will be established for individual
streams as data becomes available. As an interim policy, the
maximum allowable stream temperatures will be the maximum daily
stream temperatures plus the allowable rise; provided that this
temperature is not lethal to existing fish life, which is con-
sidered to be 78 degrees F in the case of cold water fish.
F = Fahrenheit
-115-
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TABLE 2-40.
STATE WATER QUALITY
STANDARDS FOR TURBIDITY
State
Standard
Arizona Discharges into receiving bodies of water should
not cause the turbidity to exceed: warm water
streams—50 Jackson Units; cold water streams—10
Jackson Units; warm water lakes—25 Jackson Units;
cold water lakes—10 Jackson Units.
Colorado No turbidity shall exist in concentrations that will
impair natural and developed fisheries.
Montana Class A (Closed)—None allowed. Class A (Open)—
None allowed. Classes B, F—None in sufficient
quantities to affect treatment. Classes C, D2, D3—
10 Jackson Units. Class Dl—5 Jackson Units. Class
E—None in sufficient quantities to affect use.
North A general statement limits unspecified substances
Dakota to concentrations that interfere with intended use.
New Turbidity of receiving water shall not reduce light
Mexico transmission to the point that existing aquatic life
in that section of the stream is inhibited.
Utah It shall be unlawful to discharge or place any
waste...in such a way as to result in substances
producing objectional...turbidity.
Wyoming Where turbidity of receiving waters is 150 turbidity
units or less the maximum increase is 15 units; and
where turbidity is over 150 units the maximum in-
crease is 10 percent.
-------
TABLE 2-41.
STATE WATER QUALITY
STANDARDS FOR SETTLEABLE SOLIDS
State
Standard
Arizona Discharges should be free from substances that will
settle to form deposits in amounts sufficient to be
unsightly or interfere with beneficial use of the
water.
Colorado Discharges should be free from substances that will
settle to form deposits in amounts sufficient to be
unsightly or interfere with classified use of the
water.
Montana Class A (Closed)—None allowed. Class A (Open)—
None in sufficient quantities to adversely affect
the use intended. Class B—None in sufficient
quantities to adversely affect the levels of treat-
ment. Classes C, Dl, D2, D3, E and F—Same as Class
A (Open).
North Discharges should be free from substances that will
Dakota settle to form deposits in amounts sufficient to
interfere with intended use of the water.
New The stream bottom shall be free from sediment that
Mexico will adversely inhibit the growth of stream flora
or fauna or significantly alter the physical or
chemical properties of the bottom.
Utah It shall be unlawful to discharge substances in such
a way to result in materials that will settle to
form objectionable deposits.
Wyoming All water of the state shall be essentially free
from substances (other than natural) that will
settle to form sludge, bank or bottom deposits.
-118-
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TABLE 2-42.
STATE WATER QUALITY
STANDARDS FOR OIL
State
Standard
Arizona Free from oil or grease in amounts to be
unsightly or in amounts sufficient to inter-
fere with classified use of water.
Colorado Free from oil or grease attributable to con-
trollable sources.
Montana Class A (Closed)—None. Class A (Open)—None
in sufficient quantities to affect use. Class
B—None in sufficient quantities to affect
treatment. Classes C, D, E, and F—Same as
Class A (Open).
North No discharges that result in oil slicks that
Dakota will be unsightly or have a deleterious effect
on water usage.
New Receiving waters shall be free from oil or
Mexico grease where these materials come from other
than natural sources.
Utah It shall be unlawful to discharge wastes in
such a way as to result in floating debris,
oil, scum, and other matter.
Wyoming Essentially free from floating debris, oil,
grease, scum, and other floating materials of
other than natural origin in amounts sufficent
to be unsightly.
-119-
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TABLE 2-43. STATE WATER QUALITY STANDARDS FOR BACTERIA LEVELS
State Classes or Uses
Maximum Bacteria Level (per ml}
Arizona
Colorado
Montana
North
Dakota
New
Mexico
Utah
Wyoming
B (primary body
contact)
A, Bl, B2
B3
A (after dis-
infection)
A (after disin-
fection and re-
moval of natural
impurities)
All remaining
uses (after
treatment)
Criteria assigned
by river use
Criteria assigned
by river use
A (without
treatment)
B (after disin-
fection)
C (after treat-
ment)
May 1-September
30 limited body
contact (some
criteria also
assigned by
river basin)
Geometric mean of 1,000/100 mi. for fecal coliform nor
more than 10 percent of samples to exceed 2,000/100 ml.
Geometric mean of 200/100 mH for fecal coliform nor
more than 10 percent of samples to exceed 400/100 mi.
Same as Classes A and B above.
Log mean of 1,000/100 mi for fecal coliform nor more
than 10 percent of samples to exceed 2,000/100 mi.
Monthly average of 1,000/100 mi total coliform nor more
than 20 percent, of samples over the 1,000/100 ml and no
samples over 2,400/100 ml. Also monthly average of
100/100 irH fecal coliforms and 20/100 mil fecal strepto-
coccus; where these are determined as an average of
five samples per month.
Average total coliforms less than 50/100 raj,.
Average total coliforms less than 50/100 ml as a result
of domestic sewage.
Average total coliform less than 1,000/100 ml where
demonstrated as part of domestic sewage nor more than
20 percent of samples to exceed the 1,000/100 ml.
Not to exceed 200/100 mi. consecutive 30-day geometric
mean or 400/100 ml 7-day geometric mean.
Varies from 100/100 mi to 1,000/100 mi total coliforms
using a monthly average.
Based jpon USPHS Drinking Water Standards.
Monthly arithmetic mean not to exceed the 50/100 ml,
nor more than 20 percent to exceed the 50/100 mi.
nor more than 5 percent to exceed 100/100 mi.
Monthly arithmetic mean of 5,000/100 mi total coli-
forms, but 20 percent can exceed the 5,000/100 ml if
no more than 5 percent over 20,000/100 mi and the
monthly arithmetic mean of total coliforms is not over
2,000/100 mt.
Monthly arithmetic mean of total coliforms of 1,000/
100 mi nor more than 20 percent over 1,000/100 ml,
nor more than 5 percent over 4,000/100 mi, and
monthly arithmetic mean for fecal coliforms not over
200/100 mt, nor more than 10 percent over 400/100 ml
monthly arithmetic mean for coliforms not over 5,000/
100 mt but 20 percent may be over 5,000/100 mi if no
more than 5 percent over 20,000/100 ml.
Fecal coliforms not over 15 percent confidence of
historical, and in no case is the geometric mean of
last five samples to exceed 2,000/ioO mt.
ml = milliliters
USPHS - U.S. Public Health Service
-120-
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-121-
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TABLE 2-45. STREAM USE CLASSIFICATIONS DESIGNATED
IN STATE WATER QUALITY LAWS
State Classifications
Arizona Class A--Domestic and Industrial Supply
Class B—Recreation
Class C—Fish and Wildlife
Class D--Agriculture
Colorado Class A—Potable Water Supply
Class Bl--Fish and Wildlife—cool water fishery
Class B2—Fish and Wildlife—warm water fishery
Class B3—Recreation waters and body contact sports,
such as, but not limited to, swimming and
water skiing
Class C—Industrial Use
Class D—Irrigation
Montana Class A—Closed—Water supply for drinking, culinary,
and food processing purposes, suit-
able for use after simple disinfec-
tion
Class A—Open—Bl—Water supply for drinking, culinary
and food processing purposes, suit-
able for use after simple disin-
fection and removal of naturally
present impurities. Water quality
shall also be maintained suitable
for the use of these waters for
bathing, swimming and recreation
Class B—Bl—Suitable for drinking, culinary and food
processing purposes after adequate
treatment equal to coagulation, sedimenta-
tion, filtration, disinfection, and any
additional treatment necessary to remove
naturally present impurities; bathing
swimming, and recreation; growth and
propagation of salmonid fishes and asso-
ciated aquatic life, water fowl and fur-
bearers; agricultural and industrial
- water supply.
(continued)
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TABLE 2-45. STREAM USE CLASSIFICATIONS DESIGNATED
IN STATE WATER QUALITY LAWS (continued)
State Classifications
Class B—B2—The quality of these waters shall be
maintained suitable for the uses de-
scribed for B—Bl, except that the fish-
eries shall be described as follows:
growth and marginal propagation of sal-
monid fishes and associated aquatic life,
water fowl and furbearers.
Class B—B3—Suitable for the uses described for B—Bl
waters except that the fisheries shall be
described as follows: growth and propa-
gation of nonsalmonid fishes and asso-
ciated aquatic life, water fowl , and fur-
bearers.
Class C—D2—Suitable for bathing, swimming, and
recreation; growth and marginal propaga-
tion of salmonid fishes and associated
aquatic life, water fowl, and furbearers;
agricultural and industrial water supply.
Class D2--Growth and marginal propagation of salmonid
fishes and associated aquatic life, water
fowl, and furbearers; agricultural and in-
dustrial water supply.
Class E—Agricultural and industrial water supply
uses.
Class F—Suitable for industrial water supply uses,
other than food processing.
New Class 1—Recreation
Mexico Class 2--Irrigation
Class 3—Fish and Wildlife Propagations
Class 4—Industrial Water Supply
Class 5—Municipal Water Supply
Class 6—Trout Waters
North Class 1—Municipal
Dakota Class 2—Industrial
Class 3—Recreational
Class 4—Agricultural
Class 5—Waste Treatment
(continued)
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TABLE 2-45. STREAM USE CLASSIFICATIONS DESIGNATED
IN STATE WATER QUALITY LAWS (continued)
State Classification
Utah Class A—Shall be so protected against controllable
pollution, including heat, as to be suitable
at all times without treatment for domestic
water supplies, irrigations, stock watering,
fish and wildlife propagation, recreation,
as a source of industrial supplies and for
other uses as may be determined by the
boards.
Class B—Shall be so protected against controllable
pollution, including heat, as to be suitable
at all times for domestic water supplies
which are treated before use by disinfection
only. Class B waters shall be suitable
without treatment for irrigation, stock
watering, fish and wildlife propagation,
recreation, as a source of industrial sup-
plies, and for other uses as may be deter-
mined by the boards.
Class C—Shall be suitable at all times for domestic
water supplies which are treated before use
by coagulation, sedimentation, filtration,
and disinfection. Class C waters shall be
suitable without treatment for aesthetics,
irrigation, stock watering, propagation and
perpetuation of fish, other aquatic wildlife
life, and recreation (except swimming), as a
source of industrial supplies and for other
uses as may be determined by the boards.
Class D—Suitable for limited irrigation, not includ-
ing the irrigation of lawns, recreational
areas, pastures used for dairy cattle, root
crops, or any low growing crops produced for
human consumption. Class D waters shall be
suitable as a source for industrial supplies
and for other uses as may be determined by
the boards.
Class E—Uses shall be limited to those determined by
the boards.
(continued)
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TABLE 2-45. STREAM USE CLASSIFICATIONS DESIGNATED
IN STATE WATER QUALITY LAWS (continued)
State Classifications
Wyoming Class 1—Municipal Water Supply
Class 2—Fish and Wildlife Propagation
Class 3—Agricultural
Class 4--Industrial
Class 5—Whole Body Contact Recreation
Class 6--Limited Body Contact Recreation
Class 7--Aesthetics
Class 8--Waste Assimilation
that the real issue involves only the priorities attached to en-
ergy development versus alternate uses such as agricultural pro-
duction .
2.10.1 Federal Controls
2.10.1.1 Legal Framework
Four legal doctrines provide the foundation for modern water
use laws: the "riparian," the "appropriation," the "federal
reserved," and the "Indian reserved" doctrines.
The riparian doctrine is based in the common law notion of
"adjoining" rights. This doctrine, which is the basis of water
law in most eastern states, entitles a landowner to a "reasonable"
use of water as it passes through his property.1
1 Jensen, Dallin W. "Some Legal Aspects of Water Resources
Management." Public Administration Review, Vol. 37 (September/
October 1977), p. 458.
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In the West, however, the scarcity of water resource forced
the abandonment of riparian standards and the adoption of the
appropriation doctrine in its place. In this framework, water
is apportioned among users according to who was first to put
water to a "beneficial" use. Beneficial use is defined by stat-
ute, and water used otherwise may revert back to other users whose
application is beneficial. This system guarantees the first
user (among competing users from the same source) a continuing
water right. In other words, "the first in time is first in
right." Secondary (newer) users were then aware of the priority
established for early appropriators.
Although the appropriation at first depended almost entirely
on the courts to settle disputes, the modern legal framework has
evolved into a comprehensive statutory scheme which encompasses
regulatory procedures as well. The current approach includes
three basic steps: appropriation, distribution, and adjudica-
tion (discussed below).
Both the riparian and appropriation doctrines originated
with the states, but both have been incorporated into the federal
legal framework through the federal reserved doctrine. As early
as 1899, the courts had held that the federal government implic-
itly reserved sufficient water each time it set aside a parcel
of land from the public domain for a federal purpose. More re-
cent decisions have broadened the scope of this doctrine by
holding that: the priority date relates back to the date the
land was set aside; in contrast to the appropriation system, the
reserved water right is not lost due to nonuse; and the federal
right is not subject to state laws regulating appropriation.1
Harris, Richard W., William D. Jeffery, and Blair W.
Stewart, Jr. Interstate Environmental Problems. Stanford,
Calif.: Stanford Environmental Law Society, 19~75, p. 51.
-126-
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The water rights of Indians have been guaranteed by a similar
doctrine.
While the courts have played a major role in delineating
the general federal water use approach, a number of statutes have
been significant in establishing the federal legal framework.
These statutes have been of two broad types: water quality con-
trols, and arid land reclamation and conservation regulations.
Water quality controls, discussed in the previous section, in-
directly influence water use through the introduction of the EPA
into EIS evaluations (under NEPA1) and water pollution regula-
tion (under FWPCA2). Arid land reclamation and conservation
legislation has a longer history: the 1902 Reclamation Act,3
which charged the DOI, and specifically the Bureau of Reclama-
tion, with making western lands available for agricultural devel-
lopment, is the earliest example of such laws. In 1920, the Fed-
eral Water Power Act1* gave the Federal Power Commission (FPC)
authority over the construction and operation of hydroelectric
facilities, and the Water Resources Planning Act of 19655 encour-
aged the conservation and development of water resources through
the creation of the water Resources Council (WRC).
National Environmental Policy Act of 1969, Pub. L. 91-190,
83 Stat. 852.
2Federal Water Pollution Control Act Amendments of 1972,
Pub. L. 92-500, 86 Stat. 816.
Reclamation Act, Pub. L. 57-161, 32 Stat. 388 (1902).
^Federal Water Power Act, Pub. L. 66-280, 41 Stat. 1063
(1920).
5Water Resource Planning Act of 1965, Pub. L. 89-80, 79
Stat. 244.
-127-
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Another significant method of controlling national water use
has been the "interstate compact." The compact is a negotiated
agreement, ratified by each of the participating states and the
Congress, which allocates water according to specific regional
needs and interests. Of the many interstate compacts negotiated
over the years, the most important for water use in the West have
been the Colorado River Compact of 1922, 1 the Upper Colorado
River Basin Compact of 1938,2 the Boulder Canyon Project Act of
1948,3 and the Colorado River Basin Project Act of 1968.4 As
shown in Table 2-46, each of these agreements provide for a per-
centage allocation of available water resources for participating
states.
Finally, the federal legal framework for water use control
has been modified by several international treaties. The most
important international agreement for water use in the West has
been the specification of U.S. and Mexican obligations with re-
spect to the waters of the Colorado River (in 19445 and modified
in 19736).
Colorado River Compact of 1922, 42 Stat. 171, 45 Stat.
1064, declared effective by Presidential Proclamation, 46 Stat.
3000 (1928) .
2Upper Colorado River Basin Compact of 1948, Pub. L. 81-37,
63 Stat. 31 (1949) .
3Boulder Canyon Project Act, Pub. L. 70-642, 45 Stat. 1057
(1928) .
''Colorado River Basin Project Act, Pub. L. 90-537, 82 Stat.
885 (1968).
5Treaty between the United States of America and Mexico
Respecting Utilization of Waters of the Colorado and Tijuana
Rivers and of the Rio Grande, February 3, 1944, 59 Stat. 1219
(1945), Treaty Series No. 994.
6Minute No. 241, Department of State Bulletin, Vol. 67
(1972), p. 198.
-128-
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2.10.1.2 Administrative Authority
The administrative setting for water-use management at the
federal level is fragmented. Authority is dispersed among the
"old-line construction agencies" such as DOD's COE, DOI's Bureau
of Reclamation and USDA's Soil Conservation Service and the
newer "environmental agencies" such as the EPA and DOI's Fish
and Wildlife Service. In addition, power production agencies
such as FERC in the DOE and quasi-administrative bodies such as
the WRC play an important role in controlling water use at the
national level.
The COE, by reason of its nationwide field of operations,
its powerful constituencies, and its size and budget,, is
"clearly the dominant agency in water resources construction."1
The Corps' main responsibility in water resource management is the
construction of large downstream flood control and navigation pro-
jects. The Bureau of Reclamation has a much narrower mission—it
is limited to the western states and to the regulation of the con-
struction and operation of hydroelectric generation facilities,
irrigation networks, and drainage systems. The Soil Conservation
Service is primarily involved in agricultural flood control pro-
jects.
The EPA has both a regulatory and a distributive function in
water-use management. As a part of its Congressional mandate,
EPA is charged with developing and implementing standards to
meet the national goal of clean water by 1985. In addition, the
agency is responsible for distributing federal subsidies to
Ingram, Helen, and J.R. McCain. "Federal Water Resources
Management: The Administrative Setting." Public Administration
Review, Vol. 37 (September/October 1977), p. 449.
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states and municipalities for improving and constructing waste
treatment facilities to meet water quality criteria.
The Fish and Wildlife Service's participation in water re-
sources decisionmaking has emphasized the maintenance of an
environment favorable for fish and wildlife. Often this has
placed the Service in opposition to projects proposed by the
Bureau of Reclamation or the COE.l
Secondary roles in water-use control are played by FERC,
which must approve the construction of hydroelectric facilities,
and the WRC, which coordinates water policy with other federal
agencies and administers grants to state water-use programs.
And those federal agencies with control over watershed lands—
the Forest Service, the BLM, the National Park Service, and
the Defense Department—may also influence water use through
their own land-use policies.
2.10.1.3 Regulatory Provisions
Water-use projects, whether undertaken by the Bureau of
Reclamation, the COE or the Soil Conservation Service, have
certain regulatory provisions in common. In most instances:
Federal agencies have generally followed guidelines of
fairness and equity in selecting projects for authori-
zation and funding. These guidelines are essential
because the great number of localities which do not
receive a project (and their representatives) must be
convinced that expenditures are justifiable and that
!Doerksen, Harvey. "Water, Politics, and Ideology: An
Overview of Water Resources Management." Public Administration
Review, Vol. 37 (September/October 1977), pT~446.
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a worthy project in their area will have an open op-
portunity for authorization and funding in the future.
Therefore, federal agencies apply routine tests of
physical and economic feasibility to project proposals.
The most important test has long been the benefit-cost
ratio, which gives agencies a reasonably flexible but
professionally respectable means for turning down pro-
jects which might bring discredit to a program.l
Following this extensive selection and evaluation process
(which may involve multiple feasibility studies and may take
several years to complete), there may be a need to acquire water
rights (from either public or private owners). Then Congres-
sional authorization of funding must be sought. If funding is
authorized, a private contractor builds the water facility.
Typically water projects grow to include a variety of re-
lated proposals. What began as an irrigation project, for ex-
ample, may incrementally add municipal or industrial water sup-
ply, electric power generation, recreation, flood control, fish
and wildlife propagation, and water quality features. These
additional components serve not only to legitimize the project
to the general public, but also reduce the competition and con-
flict among the range of water-use control agencies.
2.10.2 Indian Controls
Under the reservation doctrine, Indians have water rights
reserved as of the date their reservation was established. Most
of the Indian reservations in the West were established very
early as compared to most present holders of appropriation rights
Ingram, Helen, and J.R. McCain. "Federal Water Resources
Management: The Administrative Setting." Public Administration
Review, Vol. 37 (September/October 1977), p. 450.
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to western water. The application of this doctrine has produced
persistent conflicts which are argued in the courts, and although
numerous decisions have been made, none have unambiguously quan-
tified Indian water rights. Indian tribes defending or claiming
water rights have to do so originally in state courts.1 Many
Indians believe that state courts are inherently more sympathetic
to state interests, and that since federal courts are not gen-
erally inclined to review findings of fact from lower courts,
the system is biased against their rights.
This ambiguity in Indian rights has restricted development
by holders of more junior rights in some cases. However, to
facilitate the development of water projects, Indians may enter
into contracts with other parties in order to assure an adequate
water supply for new facilities. In all such arrangements, the
federal government continues to act in its role as trustee for
the rights of Indians.2
*
2.10.3 State Controls
As noted above, the appropriation doctrine is the predom-
inate method of water allocation in the West. All of the west-
ern states have now adopted institutional arrangements and admin-
istrative procedures based on the appropriation approach to water
!This is based on the McCarren Amendment, as affirmed in
U.S. v. District Court in and for County of Eagle, 401 U.S. 520
(1971) and U.S. v. District Court in and for Water Division No.
5_, 401 U.S. 527 (1971) .
2Wilkinson, Glen A. "Indian Control and Use of Water for
Mineral Development," in Rocky Mountain Mineral Law Foundation,
ed. Institute on Indian Land Development—Oil, Gas, Coal and
Other Minerals.Tucson,Ariz.:Rocky Mountain Mineral Law
Foundation, 1976, pp. 9-1 through 9-23.
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rights, although only six of the eight western states have what
might be termed a "pure" appropriation system. Both North and South
Dakota have adopted the "California Doctrine," which combines ripar-
ian and appropriation procedures.
Typically, the water-use controls of the western states feature
mechanisms governing appropriation, distribution, and adjudication.
The appropriation phase is usually overseen by a single water rights
administrator, often designated the "state engineer," who receives
applications, determines if there is unappropriated water which
can be placed to "beneficial use," appropriates the water, and
issues certificates of perfected water right. Distribution is
accomplished by a centralized water administration, in most cases
administered by a water commissioner who has the responsibility for
regulating a stream and distributing water according to user
priorities. Adjudication procedures vary from state to state, but
virtually all the western states have adopted statutes which clearly
define each user's right and which integrate these rights according
to their priorities.1
In addition to these state water-use agencies, most western
states have separate agencies responsible for developing water
plans or overseeing development projects. And every state has pub-
lic special purpose districts (for irrigation, etc.) which may
influence water use policy. Finally, the western states have be-
come more organized on a regional basis. Fear of federal
Jensen, Dallin W. "Some Legal Aspects of Water Resources
Management."' Public Administration Review, Vol. 37 (September/
October 1977), pp. 457-58.See also Daneke, Gregory A. "Public
Involvement in Natural Resource Development: A Review of Water
Resource Planning." Environmental Affairs, Vol. 6 (1977), pp.
11-32.
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preemption of state controls has led to the creation of such
regional organizations as the Western States Water Council.
2.11 SOLID WASTE DISPOSAL
While the primary concerns of the environmental movement to
date have focused on the pollution of air and water, increasing
attention has been given to the problems associated with solid
waste disposal on land. The waste disposal problem for energy
resource development activities range from the control of mine
tailings through the handling of process residuals like ash and
sludge to the regulation of radioactive materials.
2.11.1 Federal Controls
2.11.1.1 Legal Framework
Many of the federal laws for solid waste management are pri-
marily directed at the maximization of air and water quality; fed-
eral controls on solid waste disposal itself are very limited. For
example, the Rivers and Harbors Act1 forbids landfills that may
threaten navigation channels. Similarly, the leaching of landfills
is regulated by the Water Pollution Control Amendments.2 And,
because solid waste dumps may threaten air quality, the Clean Air
Act3 requires the states to include solid waste disposal in their
implementation plans.
fivers and Harbors Act of 1899, 30 Stat. 1121.
2Federal Water Pollution Control Act Amendments of 1972, Pub.
L. 92-500, 86 Stat. 816.
3Clean Air Act Amendments of 1970, Pub. L. 91-604, 84 Stat.
1676.
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Federal controls on solid waste disposal are contained in
three pieces of legislation: the 1965 Solid Waste Disposal Act,1
and the 1970 Resource Recovery Act,2and the 1976 Resource Conserva-
tion and Recovery Act.3 These statutes are primarily mechanisms
for providing federal grants for state facility improvements or
for conducting waste management research and development activities
(although there are provisions in the 1976 act for federal controls
on "hazardous" wastes).4
2.11.1.2 Administrative Authority
The EPA is charged with the limited federal responsibility in
the area of solid waste management. As a part of the mandate of
the Resource Recovery Act, the EPA established an Office of Solid
Waste Management Programs which is involved in providing technical
assistance in the development and operation of waste management
activities. And, as a result of the passage of the Resource Con-
servation and Recovery Act,5 the EPA has undertaken a broad re-
search and development effort in solid waste management—projects
include work on small-scale and low-technology systems (improved
sludge management, etc.) in particular.
id Waste Disposal Act, Pub. L. 89-272, 79 Stat. 997
(1965) .
2Resource Recovery Act of 1970, Pub. L. 91-512, 84 Stat.
1227.
3Resource Conservation and Recovery Act of 1976, Pub. L. 94-
580, 90 Stat. 2795.
''See Clark, Wilson. Energy for Survival. New York, N.Y. :
Anchor Books, 1974, pp. 98-102.
5Resource Conservation and Recovery Act.
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Other agencies also have some administrative authority in
this area. The NRC promulgates standards for the control, use
and transfer of licensed radioactive materials in an effort to
keep the combined total exposure below the federal protection
standards. The MSHA develops regulations relating to the sta-
bility of refuse piles and water impoundments associated with
coal mining activities.
In fact, however, neither the EPA nor MSHA have anything
approaching comprehensive responsibility for controlling solid
waste disposal. The governmental control problems associated with
solid waste management are similar to those for facility siting and
land use—the federal government has failed to fill a major policy
vacuum. Typical of the lack of attention given to the problems of
solid waste disposal is the National Energy Plan,1 which specifies
only air quality and strip mine reclamation as environmental pro-
tection devices. The issue of the wastes produced by those very
control mechanisms is ignored by the Plan.2
2.11.1.3 Regulatory Provisions
Solid wastes are the major form of pollutant for which the
federal government has not issued comprehensive standards. The
existing regulations fall into three broad categories: reduction
of air pollution and disease from waste disposal in incinerators,
open dumps, etc.; reduction of water pollution from landfill
leaching, channel blockage, or debris; and increasing the
^.S., Executive Office of the President, Energy Policy and
Planning. The National .Energy Plan. Washington, D.C.: Govern-
ment Printing Office, 1977.
2See U.S., Congress, Office of Technology Assessment. Analy-
sis of the National Energy Plan. Washington, D.C.: Government
Printing Office, 1977, p. 218.
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competitiveness of solid wastes as recycled materials. Currently,
most of these federal rules are aimed at the control of municipal
wastes.
2.11.2 State Controls
Each of the western states has some control mechanism for solid
waste disposal. All eight states mandate either "approval" of a
waste disposal sites and its operations or a more formal "permit"
procedure. Three western states (South Dakota, North Dakota, and
Montana) have a permit system in which the site operator receives a
permit from a state or local health board to operate within certain
regulations. Along with the permit or approval procedure, the state
usually prohibits the disposal of any waste outside the state..
Those states not having a permit system (Wyoming, New Mexico,
Utah, Colorado, and Arizona) use approval procedures. In this ar-
4
rangement, the state approves the location and operation of the dis-
posal site. Here again, the state agency has set out certain mini-
mum operating procedures to which the site operator must comply.
Most states in the West (all but Arizona and New Mexico) have
some regulatory authority over the disposal of hazardous wastes.
These range from the prohibition against disposal of radioactive
wastes in Colorado and Utah to "owner held liable" rules in North
Dakota. Montana is unique in requiring a special permit for haz-
ardous waste disposal—hazardous wastes in excess of 100 pounds or
30 gallons must meet criteria established by the State Department
of Health and Environmental Science prior to disposal. South
Dakota requires Department of Health approval of any hazardous or
toxic waste at a state landfill. Acceptance of a hazardous waste
at a site in Utah is determined on a case-by-case basis with regard
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to immediate and long-term protection. And the Department of Health
in Wyoming must give a written approval prior to a hazardous waste
disposal at a site in that state.
Table 2-47 summarizes the state regulations for sanitary dis-
posal in the West. According to this table, most western states
regulate seepage to underground strata, surface water pollution,
control of wind blown debris, open burning, and uncovered debris.
2.12 NOISE POLLUTION
Of the range of environmental impacts from energy developments,
noise pollution has probably received the least attention. Although
noise is an output of a variety of energy technologies, including
such facilities as mines, power plants, and transportation modes,
concern about noise as a pollutant has grown very slowly. To some
extent, this lack of attention can be traced to the fact that noise
pollution is not directly related to energy activities—at least
excessive noise is not as closely tied to energy shortages as air
and water pollution and the management of solid wastes are. In
many ways, noise pollution controls are more closely tied to the
general regulation of occupational health and safety.1
2.12.1 Federal Controls
2.12.1.1 Legal Framework
It was not until the late 1960's, when air craft noise control
regulations were promulgated, that the federal government
^ranscomb, Lewis M. "Noise Control for the Future." Noise
Control Engineering, Vol. 4 (January/February 1975) , p. 15.
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moved to legislate against noise pollution. After the passage
of the 1969 National Environmental Policy Act1 guaranteed that
noise would be one of the problems considered in "major federal
actions," it was a short step to the Noise Pollution and Abate-
ment Act of 1970.2 This law established, within EPA, an Office
of Noise Abatement and Control, to report to Congress on the
effects of noise on public health and welfare. That same year,
the Occupational Safety and Health Act3 was enacted to protect
worker health and safety (including noise controls). By 1971,
under the authority of this legislation, the Labor Department
had issued the first noise exposure standard. The year 1970
also marked the passage of the Federal-Aid Highway Act,1* which
mandated the implementation of noise control design standards
for highways.
The most important federal legislation relating to noise
was enacted in 1972. The Noise Control Act5 established the
the requirements for EPA monitoring, standard-setting and en-
forcement of all federal noise control and research.
National Environmental Policy Act of 1969, Pub. L. 91-190,
83 Stat. 852.
2Noise Pollution and Abatement Act of 1970, Title IV of
Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat. 1709.
Occupational Safety and Health Act of 1970, Pub. L. 91-
596, 84 Stat. 1590.
^Federal-Aid Highway Act of 1970, Pub. L. 91-605, 84 Stat.
1713.
5Noise Control Act of 1972, Pub. L. 92-574, 86 Stat. 1234.
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2.12.1.2 Administrative Authority
Under the authority of the Noise Control Act, the EPA is
required to identify major noise sources, noise criteria, and
noise control technologies, to set noise emission standards for
products and aircraft, and to establish product labeling for
noise generating characteristics. Other federal agencies which
have a major role in administering noise control regulations are:
the Department of Labor, which sets OSHA standards; the Depart-
ment of Transportation (DOT), which regulates aviation and highway
noise limitations; the Department of Housing and Urban Develop-
ment, which establishes its own noise criteria for federal hous-
ing loans; the DOD, which regulates its own internal operations,
and the General Services Administration, which promulgates
noise standards for the construction of federal buildings.1
2.12.1.3 Regulatory Provisions
As was discussed above in the section on the control of
occupational health and safety, OSHA is responsible for the
establishment of noise control standards relating to worker
safety and health. Table 2-48 outlines the current OSHA noise
standards. If these criteria are exceeded, some protection
must be provided against the effects of noise exposure. In
addition to the standards listed in this table, noise from
brief impulses or impacts must not exceed 140 decibels, under
OSHA rules.
:Lang, William W. "The Status of Noise Control Regulations
in the USA." Noise Control Engineering, Vol. 5 (November 1975),
p. 109.
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TABLE 2-48. FEDERAL NOISE
CONTROL STANDARDS
Noise Duration Maximum Sound Level
(Hours per Day) (Decibels)
15 minutes 115
30 minutes 110
60 minutes 105
90 minutes 102
2 hours 100
3 hours 97
4 hours 95
6 hours 92
8 hours 90
Following its Report to Congress on Noise in 1972 (as a
part of the requirements of the Noise Pollution and Abatement
Act of 1970) ,* EPA was able to accumulate an adequate data base
on noise reduction technologies and noise reduction criteria.
Thus, in 1973, the EPA published its first "Criteria Develop-
ment"2 documents, which provided a partial basis for noise
standards and regulations. In 1974, the EPA published its
"Levels Document"3 which identified noise levels which would
pose risks to public health and welfare without regard to cost
or technical feasibility for reducing these noise levels.
JNoise Pollution and Abatement Act of 1970, Title IV of
Clean Air Amendments of 1970, Pub. L. 91-604, 84 Stat. 1709.
2U.S., Environmental Protection Agency, Office of Noise
Abatement and Control. Public Health and Welfare Criteria for
Noise. Arlington, Va.: Environmental Protection Agency,1973.
3U.S., Environmental Protection Agency, Office of Noise
Abatement and Control. Information on Levels of Environmental
Noise Requisite to Protect Public Health and Welfare with an
Adequate Margin of Safety. Arlington, Va.: Environmental Pro-
tection Agency,1974.
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Since 1974, the EPA has developed and submitted proposed
noise standards for aircraft and motor carriers. In addition,
the EPA identified as major product sources of noise medium-
weight and heavy-duty trucks and portable air compressors. Pro-
posed regulations have also been published for these noise sources,
2.12.2 State Controls
An important aspect of the Noise Control Act of 1972l is
the division of powers between the federal, state, and local
governments. Although the federal government has authority over
interstate noise control (primarily aimed at common carriers)
and new permits, the states and their subdivisions have the re-
sponsibility to determine acceptable community noise levels.
However, most states have taken the position that most noise
pollution should be controlled at the local level.
In the West, three states (Montana, South Dakota, and Utah)
have no statutory regulation of noise pollution. Two states
(Arizona and New Mexico) have as their only noise statute a
section requiring every motor vehicle to have a muffler. Wyo-
ming's noise control statute authorizes the local governments to
regulate noise pollution. And in North Dakota, the legislature
has requested that the state Health Council propose regulations
for noise pollution control.
Colorado has by far the most comprehensive noise control
standards in the West. Primarily, Colorado's noise control
methodology is based on the incorporation of ambient noise
standards so that nuisance action can be definitive and less
Control Act of 1972, Pub. L. 92-574, 86 Stat. 1234.
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subjective. Noise regulations are set by local governments,
with maximum levels being prescribed by state statute.:
2.13 TRANSPORTATION AND DISTRIBUTION
The control of the products of energy resource development
focuses upon two closely related activities: transportation
and distribution. Transportation controls include the establish-
ment of user access and user rates, while distribution controls
involve the regulation of product pricing and allocation.
2.13.1 Federal Controls
2.13.1.1 Legal.Framework
Railway rights-of-way are controlled by enactments passed
in 1875 and 1899.2 Under the 1875 act, railroad companies which
are chartered by a state or territory can unilaterally claim
easements of 200 feet through public lands. National forests
are exempt from this legislation, but are covered by the 1899
law which grants rights-of-way if "public interests will not
be injuriously affected." The DOI controls the implementation
of these acts.
Highway rights-of-way across public lands are authorized
by statute only if the land has not been previously reserved
for public use. An act passed in 1901 provides for highway
rights-of-way across Indian lands.3
Colorado Revised Statutes, § 25-12-101 et seq. (1973).
218 Stat. 482; 30 Stat. 1233.
331 Stat. 1084.
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Of more recent origin are the statutes controlling pipeline
rights-of-way. Under the Mineral Leasing Act of 192O,1 the
Secretary of the Interior is authorized to prescribe regula-
tions for oil and gas pipeline rights-of-way on public lands.
The act does not provide for authorization of pipelines on ac-
quired lands. By 1935 amendment,2 the Secretary must find the
pipeline to be in the public interest and a common carrier.
Provisions for pipelines do not explicitly mention the
relatively new coal slurry pipeline technology. However, since
the Act of February 15, 190I3 gives the Secretary of the Inte-
rior power to grant rights-of-way to "pipes and pipelines" gen-
erally, permits have been given under this Act.
Federal jurisdiction over electrical transmission systems
dates from the 1920 Federal Water Power Act1* as amended by the
Public Utility Act of 1935. 5 This legislation gave the FPC (now
FERC) authoirty to regulate the rates and other aspects of interstate
transactions in electric power.6 Intrastate transactions are left
Mineral Leasing Act of 1920, 41 Stat. 437.
2General Leasing Act Amendments, Pub. L. 74-297%, 49 Stat.
674 (1935).
331 Stat. 73 (1901), 43 U.S.C.A. § 5 (1974).
''Federal Water Power Act, Pub. L. 66-280, 41 Stat. 1063
(1920) .
5Public Utility Act of 1935, Pub. L. 74-333, 49 Stat. 803.
6See Cicchetti, Charles J., and John Jurewitz, eds. Studies
in Electric Utility Regulation, A Report to the Energy Policy
Project of the Ford Foundation. Cambridge, Mass.: Ballinger,
1975.
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to state utility commissions. The Commission (now Economic Regu-
latory Administration within DOE) has also influenced transmission
network planning by encouraging utilities to join power pools and
regional planning groups coordinated by the National Electric Re-
liability Council. Most of North and South Dakota is part of the
Midcontinent Area Reliability Coordination Agreement, with the
rest of the eight-state study area participating in the Western
Systems Coordinating Council.
The federal regulation of user access and rates for inter-
state pipeline, railway, and highway transportation is estab-
lished by the Interstate Commerce Act of 1887, ! which created the
Interstate Commerce Commission (ICC). The ICC's authority over
transportation rates, corporate mergers, and competition has been
broadened over the time with the passage of the Hepburn Act,2 the
Panama Canal Act,3 the 1935 Motor Carrier Act,1* and the Transpor-
tation Acts of 1920, 1940, and 1958.5 However, the Railroad Re-
vitalization and Regulatory Reform Act of 19766 reversed the
trend by giving railroads more flexibility in pricing, completely
Interstate Commerce Act of 1887, 24 Stat. 379.
2Hepburn Act, Pub. L. 59-337, 34 Stat. 584 (1906).
3Panama Canal Act, Pub. L. 62-337, 37 Stat. 560 (1912).
"Motor Carrier Act of 1935, Part II of Interstate Commerce
Act Amendment, Pub. L. '74-255, 49 Stat. 543.
transportation Acts of 1920, 1940, and 1958, Pub. L. 66-
152, 41 Stat. 456, Pub. L. 76-785, 54 Stat. 898, Pub. L. 85-625,
72 Stat. 568.
6 Railroad Revitalization and Regulatory Reform Act of 1976,
Pub. L. 94-210, 90 Stat. 31.
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freeing them from ICC jurisdiction in those cases where the
railroads do not have "market dominance." 1
Energy product pricing and allocation controls began with
the Water Power Act of 1920, as noted above. The 1938 Natural
Gas Act2 added to the FPC's responsibilities by giving the Com-
mission authority over interstate natural gas sales.3 Until
1954, however, the Commission dealt only with interstate trans-
mission of gas, leaving production and gathering unregulated.
The Supreme Court ruled in the Phillips case4 that all gas
"clearly following into interstate commerce" should be regul-
ated, i.e., including production and gathering operations.
Federal petroleum allocation and pricing regulations were
established by the "Phase 1-4" wage and price controls which
applied to most goods and services during 1971-1973. These con-
trols were extended for petroleum and its products by the Emer-
gency Petroleum Allocation Act of 19735 and the Energy Policy
and Conservation Act of 1975.6 The Federal Energy Administra-
tion (FEA) was created, in large part, to administer these
petroleum allocation and pricing mechanisms (by the Federal
Defined by ICC at 49 C.F.R. § 1109.1.
2Natural Gas Act, Pub. L. 75-688, 52 Stat. 821 (1938).
3See Breyer, Stephen G., and Paul W. MacAvoy. Energy Reg-
ulation by the Federal Power Commission. Washington, D.C.:
Brookings Institution, 1974.
"Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672 (1954).
5Emergency Petroleum Allocation Act of 1973, Pub. L. 93-
158, 87 Stat. 627.
6Energy Policy and Conservation Act of 1975, Pub. L. 94-
163, 89 Stat. 871.
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Energy Administration Act of 19741). Then the regulatory
functions of the FEA, FPC, and other energy agencies were trans-
ferred into the new DOE by the 1977 Department of Energy
Organization Act.2
2.13.1.2 Administrative Authority
Overall responsibility for federal transportation
regulation is vested in the DOT and its operating adminis-
trations. The DOT has a division for planning and safety
aspects of each of the major transportation modes but, as
noted above, the economic controls for transportation and
distribution of energy products are assigned to other federal
organizations (see Table 2-49).
The administrative authority for granting rights-of-way
across federal lands belongs to the DOI. However, in doing so,
DOI must gain the approval of other departments having juris-
diction over the land in question. The Secretary of the Inte-
rior's discretionary authority is further limited by require-
ments to allow public hearings and "finding of facts" prior to
the granting of permits. Federal regulated carriers of elec-
tricity and natural gas can obtain rights-of-way across private
lands through exercising the power of eminent domain under
1Federal Energy Administration Act of 1974, Pub. L. 93-
275, 88 Stat. 96.
Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (1977).
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TABLE 2-49. FEDERAL TRANSPORTATION AGENCIES
Barges
Planning
Army Corps of
Engineers
Pipelines Department of
Energy
Power
lines
Trains
Trucks
Department of
Energy
Federal Railway
Administration"
Federal Highway
Administration"
Safety5
Coast Guardb
Office of
Pipeline Safetyb
Federal Railway
Administration"
National Highway
Traffic Safety
Administration
Ratemaking
Interstate Com-
merce Commission
Department of
Energy
Department of
Energy
Interstate Com-
merce Commission
Interstate Com-
merce Commission
aThe National Transportation Safety Board investigates accidents
in all transport modes and makes recommendations on safety mea-
sures .
Department of Transportation
cRules for lines crossing federal lands jointly prescribed by
Secretaries of Agriculture and Interior; state authority on
other lands.
federal statute.1 Other carriers, such as oil pipelines, rely on
state eminent domain laws.
The DOE brings together the many fragmented ene:rgy product
pricing and allocation functions formerly vested in the FEA, FPC,
DOI, and ICC. From the FEA, the DOE assumed responsibility for
University of Tulsa, National Energy Law and Policy In-
stitute. The Legal and Regulatory Issues of Transporting Coal
by Slurry Pipeline, OTA-E-60. Washington, D.C.: U.S., Congress,
Office of Technology Assessment, 1978, Vol. II, Part 2, pp. Em-
16 through EM-18.
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oil pricing and allocation. Natural gas regulation and inter-
state wholesale electric rate setting were transferred from the
FPC to the new agency. Authority over the power marketing functions
of the Bureau of Reclamation and the Bonneville Power Administration
(as well as others operating outside the eight-state area) were
transferred from DOI. And the functions related to transportation
of oil by pipeline, including pipeline valuation and rate setting,
were moved from the ICC to the DOE.1
The new DOE administrative structure controlling these
transportion and distribution activities features a line adminis-
tration and an independent commission. The Energy Resource
Administration (ERA), a major line administration of the DOE,
will assume the oil pricing and allocation programs of formerly
administered by the FEA. And the FERC, an independent five-member
commission within the DOE, will assume most of the transferred
FPC and ICC functions.
2.13.1.3 Regulatory Provisions
The regulatory functions of the ERA include: assuring the
availability and regulating the pricing and allocation of crude
oil, natural gas liquids, and their products; ensuring market
competition; intervening before FERC and other federal regula-
tory agencies; intervening before state utility regulatory pro-
ceedings; regulating natural gas and electric power imports and
^achman, W.A. "DOE Takes Command of U.S. Petroleum Des-
tiny." Oil and Gas Journal, Vol. 75 (October 3, 1977), pp. 47-
52.
2Corrigan, Richard. "Congress Takes a Chip Off Carter's
Energy Block." National Journal, Vol. 9 (June 11, 1977), pp.
888-92.
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exports; establishing natural gas curtailment priorities;
assuring the voluntary compliance of electric utilities; perform-
ing long-range utility planning; and performing non-FERC oil
pipeline regulation.
The FERC is charged with the following regulatory func-
tions: issuing and enforcing licenses for hydroelectric power
projects; establishing and enforcing rates and charges for the
interstate sale and transmission of electricity and for the non-
emergency interconnection of facilities for the generation,
transmission, and sale of electricity; establishing and enforcing
rates and charges for the interstate transmission and sale of
natural gas; issuing and enforcing certificates of public con-
venience and necessity for the construction of facilities, aban-
donment of services, etc.; establishing and enforcing curtail-
ments of natural gas; and regulating mergers and securities
acquisitions under the Natural Gas Act1 and Federal Power Act.2
The ICC oversees a system of "common carriage," by which
transport operators are required to furnish their services to
all who seek them at reasonable rates, and under equal terms
for all shippers, commodities, and locations which are similarly
situated. Other functions include authorizing new routes and
services, authorizing abandonments, and overseeing corporate
changes such as mergers and bankruptcies.
'Natural Gas Act, Pub. L. 75-688, 52 Stat. 821 (1938).
2Federal Water Power Act, Pub. L. 66-280, 41 Stat. 1063
(1920).
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2.13.2 State Controls
State laws generally control (a) distribution matters in
intrastate commerce, (b) right-of-way matters for oil and coal
slurry pipelines,1 and (c) right-of-way matters for intrastate
gas pipelines and electric transmission lines.
The greater part of electricity sales come under state
regulation, whereas most natural gas sales are federally reg-
ulated. 2 State utility commissions generally use the same types
of criteria for "reasonable" and "nondiscriminatory" ratemaking
as does the FERC.
Both states and national constitutions provide for the pro-
tection of individuals against government action to take prop-
erty. In general, state laws are more restrictive with regard
to the taking of private lands for eminent domain purposes.
Usually, the states require that a "public purpose" must be
demonstrated for the exercise of eminent domain. The degree
of public purpose varies with the states. Some states allow
only bona fide public utilities or common carriers to use this
procedure, whereas others extend the privilege to special situa-
tions in mining operations. An important difference between
state and federal jurisdiction is that state law may require
that a public purpose be served within the state, e.g., loading
or discharge of the payload. This is one of the reasons behind
legislation (Senate Bill 707 and Senate Bill 1492) has
been introduced to grant federal eminent domain powers to coal
slurry pipelines.
2Breyer, Stephen, and Paul MacAvoy. Energy Regulation by
the Federal Power Commission. Washington, D.C.:Brookings
Institute, 1974, p. 11.
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proposals for federal jurisdiction over coal slurry pipelines.
In the West, special privileges for eminent domain are extended
to include pipelines and railroads, mine/mill operations, and
water courses in every state, as is illustrated in Table 2-50.
In addition, some states provide for eminent domain for tramways
and transmission lines. And, as is indicated by Table 2-51,
there is a wide variation in the state regulations for electricity
transmission.
Several of the western states have brought the entire
energy development system, including transportation, under a
comprehensive administrative umbrella.1 In these states, sit-
ing commissions approve routes in conjunction with considera-
tion of the energy conversion facilities they serve.
2.14 CONCLUSIONS
The above sections summarize the federal and state laws
and regulations applicable to development of all the resources
discussed in the subsequent chapters. These summaries are up-
to-date as of late 1977 with more up-to-date material included
when available.
In the subsequent chapters on each resource, laws and
regulations applicable only to that resource are identified.
For a complete coverage of laws and regulations applicable to
a particular technology and a particular resource, both this
1 These states include Arizona, Montana, New Mexico, and
North Dakota. Southern Interstate Nuclear Board. Power Plant
Siting in the United States. Atlanta, Ga. : Southelrn Inter-
state Nuclear Board, 1976.
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TABLE 2-50. STATE EMINENT DOMAIN CONTROLS
State
Category of Use ~~77I77
New North South
Arizona Colorado Montana Mexico Dakota Dakota Utah Wyoming3
Pipelines
Oil / ///?//
Gas /c / / / / /
Coal Slurry /d / /
Generally / / /
Railroads / / //////e
Roads
Mine/Mill Operation /f /f /f / / / / /
Water
Generally / /* / / / / / /
Mines /* / //////
Tramways / / / / /
Transmission Lines / / / / / / /
aNot over 100 feet each side; except mine haul roads not to exceed a total of 100
feet in width and must be in good faith and economical to mine.
Only if the pipeline company is a common carrier* and follows the statutes and regula-
tions of the state.
C0nly an authorization of gas lines to the consumer or for gas company interconnection
lines.
dFrom mine to processing transporation only.
eTo include spurs for coal mines.
Authorizes roads, tunnels, or canals for mine tailing removal.
8Only if associated with a public service or benefit.
State requires that for reservoir construction by eminent domain the District Court must
find the reservoir to be the highest and best use of the land.
1Also provides for canals providing reclamation water.
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TABLE 2-51. STATE ELECTRIC TRANSMISSION CONTROLS
State
Controls
Arizona
Colorado
Montana
New
Mexico
North
Dakota
South
Dakota
Utah
Wyoming
License required for construction of all lines over
115 kV, public hearings required.
License required in most instances, public hearing
held if requested.
License required for all lines; hearings at the
discretion of commission.
License and hearing required for all lines.
License required for construction of all lines
above 115 kV, public hearings required, but short-
ened procedures available at commission discretion.
No legislation.
License required for all lines; hearing is discre-
tionary.
License required for all lines; hearing is discre-
tionary.
kV = kilovolts
chapter and the social controls section related to that tech-
nology and resource should be consulted.
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