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Statutes and Legislative History-
Executive Orders
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THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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Statutes and Legislative History
Executive Orders
Regulations
Guidelines and Reports
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JANUARY 1973
WILLIAM D. RUCKELSHAUS
A dministrator
U.S. Environmental Protection Agency
Region V, Library
230 South Dearborn Street .-^""
Chicago, Illinois 60604
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For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, B.C. 20402 - Price $22.20 per 6-vol. set. Sold in sets only
Stock Number 5500-0063
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FOREWORD
It has been said that America is like a gigantic boiler in that
once the fire is lighted, there are no limits to the power it can
generate. Environmentally, the fire has been lit.
With a mandate from the President and an aroused public con-
cern over the environment, we are experiencing a new American
Revolution, a revolution in our way of life. The era which began
with the industrial revolution is over and things will never be
quite the same again. We are moving slowly, perhaps even grudg-
ingly at times, but inexorably into an age when social, spiritual
and aesthetic values will be prized more than production and con-
sumption. We have reached a point where we must balance civili-
zation and nature through our technology.
The U.S. Environmental Protection Agency, formed by Reorg-
anization Plan No. 3 of 1970, was a major commitment to this new
ethic. It exists and acts in the public's name to ensure that due
regard is given to the environmental consequences of actions by
public and private institutions.
In a large measure, this is a regulatory role, one that encompas-
ses basic, applied, and effects research; setting and enforcing
standards; monitoring; and making delicate risk-benefit deci-
sions aimed at creating the kind of world the public desires.
The Agency was not created to harass industry or to act as a
shield behind which man could wreak havoc on nature. The great-
est disservice the Environmental Protection Agency could do to
American industry is to be a poor regulator. The environment
would suffer, public trust would diminish, and instead of free en-
terprise, environmental anarchy would result.
It was once sufficient that the regulatory process produce wise
and well-founded courses of action. The public, largely indifferent
to regulatory activities, accepted agency actions as being for the
"public convenience and necessity." Credibility gaps and cynicism
make it essential not only that today's decisions be wise and well-
Bounded but that the public know this to be true. Certitude, not
Lh, is de rigueur.
>rder to participate intelligently in regulatory proceedings,
•>n should have access to the information available to the
iii
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agency. EPA's policy is to make the fullest possible disclosure of
information, without unjustifiable expense or delay, to any inter-
ested party. With this in mind, the EPA Compilation of Legal
Authority was produced not only for internal operations of EPA,
but as a service to the public, as we strive together to lead the
way, through the law, to preserving the earth as a place both
habitable by and hospitable to man.
WILLIAM D. RUCKELSHAUS
Administrator
U.S. Environmental Protection Agency
IV
r
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PREFACE
Reorganization Plan No. 3 of 1970 transferred 15 governmental
units with their functions and legal authority to create the U.S.
Environmental Protection Agency. Since only the major laws
were cited in the Plan, the Administrator, William D. Ruckelshaus,
requested that a compilation of EPA legal authority be researched
and published.
The publication has the primary function of providing a work-
ing document for the Agency itself. Secondarily, it will serve as
a research tool for the public.
A permanent office in the Office of Legislation has been estab-
lished to keep the publication updated by supplements.
It is the hope of EPA that this set will assist in the awesome
task of developing a better environment.
LANE WARD GENTRY, J.D.
Assistant Director for Field Operations
Office of Legislation
U.S. Environmental Protection Agency
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ACKNOWLEDGMENT
The idea of producing a compilation of the legal authority of
EPA was conceived and commissioned by William D. Ruckelshaus,
Administrator of EPA. The production of this compilation in-
volved the cooperation and effort of numerous sources, both within
and outside the Agency. The departmental libraries at Justice and
Interior were used extensively; therefore we express our appre-
ciation to Marvin P. Hogan, Librarian, Department of Justice;
Arley E. Long, Land & Natural Resources Division Librarian,
Department of Justice; Frederic E. Murray, Assistant Director,
Library Services, Department of the Interior.
For exceptional assistance and cooperation, my gratitude to:
Gary Baise, formerly Assistant to the Administrator, currently
Director, Office of Legislation, who first began with me on this
project; A. James Barnes, Assistant to the Administrator; K.
Kirke Harper, Jr., Special Assistant for Executive Communica-
tions ; John Dezzutti, Administrative Assistant, Office of Executive
Communications; Roland 0. Sorensen, Chief, Printing Manage-
ment Branch, and Jacqueline Gouge and Thomas Green, Printing
Management Staff; Ruth Simpkins, Janis Collier, Wm. Lee Rawls,
Peter J. McKenna, James G. Chandler, Jeffrey D. Light, Randy
Mott, Thomas H. Rawls, John D. Whittaker, John M. Himmelberg,
and Richard A. Yarmey, a beautiful staff who gave unlimited
effort; and to many others behind the scenes who rendered varied
assistance.
LANE WARD GENTRY, J.D.
Assistant Director for Field Operations
Office of Legislation
U.S. Environmental Protection Agency
VI
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INSTRUCTIONS
The goal of this text is to create a useful compilation of the
legal authority under which the U.S. Environmental Protection
Agency operates. These documents are for the general use of per-
sonnel of the EPA in assisting them in attaining the purposes set
out by the President in creating the Agency. This work is not
intended and should not be used for legal citations or any use
other than as reference of a general nature. The author disclaims
all responsibility for liabilities growing out of the use of these
materials contrary to their intended purpose. Moreover, it should
be noted that portions of the Congressional Record from the 92nd
Congress were extracted from the "unofficial" daily version and
are subject to subsequent modification.
EPA Legal Compilation consists of the Statutes with their legis-
lative history, Executive Orders, Regulations, Guidelines and Re-
ports. To facilitate the usefulness of this composite, the Legal
Compilation is divided into the eight following chapters:
A. General E. Pesticides
B. Air F. Radiation
C. Water G. Noise
D. Solid Waste H. International
GENERAL
The chapter labeled "General" and color coded red contains the
legal authority of the Agency that applies to more than one area
of pollution, such as the Reorganization Plan No. 3 of 1970, E.G.
11514, Protection and Enhancement of Environmental Quality,
Regulation on Certification of Facilities, Interim Guidelines by
CEQ, and Selected Reports. Acts that appear in General are found
in full text with their legislative history. When the same Act
appears under a particular area of pollution, a cross reference is
made back to General for the text.
SUBCHAPTERS
Statutes and Legislative History
For convenience, the Statutes are listed throughout the Compi-
lation by a one-point system, i.e., 1.1, 1.2, 1.3, etc., and Legislative
vii
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viii INSTRUCTIONS
History begins wherever a letter follows the one-point system.
Thusly, any l.la, Lib, 1.2a, etc., denotes the public laws compris-
ing the 1.1, 1.2 statute. Each public law is followed by its legisla-
tive history. The legislative history in each case consists of the
House Report, Senate Report, Conference Report (where applica-
ble), the Congressional Record beginning with the time the bill
was reported from committee.
Example:
1.4 Amortization of Pollution Control Facilities, as amended,
26U.S.C. §169 (1969).
1.4a Amortization of Pollution Control Facilities, Decem-
ber 30, 1969, P.L. 91-172, §704, 83 Stat. 667.
(1) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part I), 91st Cong., 1st Sess.
(1969).
(2) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part II), 91st Cong., 1st
Sess. (1969).
(3) Senate Committee on Finance, S. REP. No.
91-552, 91st Cong., 1st Sess. (1969).
(4) Committee of Conference, H.R. REP. No.
91-782, 91st Cong., 1st Sess. (1969).
(5) Congressional Record, Vol. 115 (1969) :
(a) Aug. 7: Debated and passed House, pp.
22746, 22774-22775;
(b) Nov. 24, Dec. 5, 8, 9: Debated and passed
Senate, pp. 35486, 38321-37322, 37631-
37633, 37884-37888;
(c) Dec. 22: Senate agrees to conference re-
port, p. 40718;*
(d) Dec. 22: House debates and agrees to con-
ference report, pp. 40820, 40900.
This example not only demonstrates the pattern followed for legis-
lative history, but indicates the procedure where only one section
of a P.L. appears. You will note that the Congressional Record
cited pages are only those pages dealing with the discussion
and/or action taken pertinent to the section of law applicable to
EPA. In the event there is no discussion of the pertinent section,
only action or passage, then the asterisk (*) is used to so indicate,
and no text is reprinted in the Compilation. In regard to the
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INSTRUCTIONS ix
situation where only one section of a public law is applicable, then
only the parts of the report dealing with same are printed in the
Compilation.
Secondary Statutes
Many statutes make reference to other laws and rather than
have this manual serve only for major statutes, these secondary
statutes have been included where practical. These secondary stat-
utes are indicated in the table of contents to each chapter by a
bracketed cite to the particular section of the major Act which
made the reference.
Citations
The United States Code, being the official citation, is used
throughout the Statute section of the compilation. In four Stat-
utes, a parallel table to the Statutes at Large is provided for your
convenience.
TABLE OF STATUTORY SOURCE
Statutes Source
1.1 Reorganization Plan No. 3 of EPA's originating act.
1970, 35 Fed. Reg. 15263.
1.2 The National Environmental In §4332(2)(c) a mandate was made
Policy Act of 1969, 42 U.S.C. to all Federal agencies as to environ-
§§4332(2) (c), 4344(5). mental impact statements. EPA func-
tioning as appropriate agency, and
§4344 cited in Reorganization Plan
No. 3 of 1970 as a direct transfer to
EPA.
1.3 Environmental Quality Improve- CEQ's originating act.
ment Act of 1970, 42 U.S.C.
§4371 et seq. (1970).
1.4 Amortization of Pollution Con- Direct reference in sections cited to
trol Facilities, as amended, 26 Clean Air Act, Fed. Water Pollution
U.S.C. §169(d). (1969). Control Act which were transferred
to EPA by Reorg. Plan No. 3 of 1970.
Also the certifying authority was
transferred to EPA through the Re-
org. Plan No. 3 of 1970.
1.5 Department of Transportation Reorg. Plan No. 3 of 1970 transferred
Act, as amended, 49 U.S.C. Clean Air Act and the functions of the
§1653(f) (1968). Secty of Interior pertaining to same
to EPA and its Administrator. The
Clean Air Act at §1857f—10(b) ref-
erences 1.5 and requires consultation
from the Administrator.
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INSTRUCTIONS
Statutes
Source
1.6
1.7
1.8
1.9
Federal Aid Highway Act, as a-
mended, 23 U.S.C. §109(h), (i),
(j) (1970).
Airport and Airway Develop-
ment Act, 49 U.S.C. §§1712(f),
1716(c)(4), (e) (1970).
Disaster Relief Act of 1970, 42
U.S.C. §4401 et seq. (1970).
Direct reference made to EPA in
sections cited.
Direct references made to appropriate
agency for air, water and noise pollu-
tion which is EPA under Reorg. Plan
No. 3 of 1970.
The Water Quality Administration
was transferred to EPA by Reorg.
Plan No. 3 of 1970 and together with
E.G. 11490, §§703(3), 11102(1),
11103(2) EPA assumes responsibility.
§103(c)(4)(E) & (F) of the Act pro-
vides tax relief on industrial develop-
ment bonds for sewage or solid waste
disposal facilities and air or water
pollution control facilities.
1.10 Uniform Relocation Assistance Act requires Federal and federally
and Real Property Acquisition assisted projects and programs to deal
Polices Act of 1970, 42 U.S.C. uniformly and equitably with persons
§4601 et seq. (1970). whose property was taken. EPA pro-
mulgated regulation at 40 C.F.R.
§§4.1—4.263.
Interest on Certain Government
Obligations, as amended, 26
U.S.C. §103 (1969).
1.11 Departmental Regulations, as
revised, 5 U.S.C. §301 (1966).
1.12 Public Health Service Act, as
amended, 42 U.S.C. §§203, 216,
242, 242b, c, d, f, i, j, 243, 244,
244a, 245, 246, 247, 264 (1970).
1.13 Davis-Bacon Act, as amended,
40 U.S. C. §276a-276a-5 (1964).
1.14 Public Contracts, Advertisements
for Proposals for Purchases and
Contracts for Supplies or Ser-
vices for Government Depart-
ments; Application to Govern-
ment Sales and Contracts to sell
and to Government Corporations,
as amended, 41 U.S.C. §5 (1958).
1.15 Per Diem, Travel and Transpor-
tation Expenses; Experts and
Consultants; Individuals Serving
Without Pay, as amended, 5
U.S.C. §5703 (1969).
Bases of EPA regulat;on 40 C.F.R.
§§3.735—101 —3.735—107.
Referred to in Clean Air Act., basis
for authority in Water, Pesticides,
and Radiation functions transferred
in Reorg. Plan No. 3 of 1970.
Referenced from Clean Air Act, Fed.
Water Pollution Control Act, Solid
Waste Disposal Act—all of which
were transferred to EPA in Reorg.
Plan No. 3 of 1970.
Referred to in Clean Air Act, Federal
Water Pollution Control Act, and
Public Health Service Act—all of
which transferred to EPA in Reorg.
Plan No. 3 of 1970.
Referred to in Clean Air Act, Federal
Water Pollution Control Act—all of
which were transferred to EPA in
Reorg. Plan No. 3 of 1970.
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INSTRUCTIONS xi
Statutes Source
1.16 Disclosure of Confidential Infor- Referred to in Clean Air Act, and
mation Generally, as amended, FWPCA which were transferred to
18 U.S.C. §1905. EPA both being transferred by the
Reorg. Plan No. 3 of 1970.
1.17 Appropriation Bills Beginning with the Agricultural-En-
vironmental and Consumer Protection
Appropriation Act of 1971 each ap-
propriation bill for EPA will appear.
EXECUTIVE ORDERS
The Executive Orders are listed by a two-point system (2.1, 2.2,
etc.). Executive Orders found in General are ones applying to
more than one area of the pollution chapters.
REGULATIONS
The Regulations are noted by a three-point system (3.1, 3.2,
etc.). Included in the Regulations are those not only promulgated
by the Environmental Protection Agency, but those under which
the Agency has direct contact.
GUIDELINES AND REPORTS
This subchapter is noted by a four-point system (4.1, 4.2, etc.).
In this subchapter is found the statutorily required reports of
EPA, published guidelines of EPA, selected reports other than
EPA's and inter-departmental agreements of note.
UPDATING
Periodically, a supplement will be sent to the interagency distri-
bution and made available through the U.S. Government Printing
Office in order to provide an accurate working set of EPA Legal
Compilation.
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CONTENTS
A. GENERAL
Volume I
Page
1. Statutes and Legislative History.
1.1 Reorganization Plan No. 3 of 1970, 5 U.S.C. Reorg. Plan of
1970 No. 3, Appendix (1970) 3
l.la Message of the President Relative to Reorganization
Plan No. 3, July 9, 1970, Weekly Compilation of
Presidential Documents, Vol. 6, No. 28, p. 908 (July
13, 1970) 8
l.lb Message of the President Transmitting Reorganiza-
tion Plan No. 3, July 9, 1970, Weekly Compilation
of Presidential Documents, Vol. 6, No. 28, p. 917
(July 13, 1970) 15
l.lc Hearings on Reorganization Plan No. 3 of 1970
Before the Subcommittee on Executive Reorganiza-
tion and Government Research of the Senate Com-
mittee on Government Operations, 91st Cong., 2d
Sess. (1970) 16
l.ld Hearings on Reorganization Plan No. 3 of 1970
Before the Subcommittee on Government Operations
of the House Committee on Government Operations,
91st Cong., 2d Sess. (1970) 112
l.le House Committee on Government Operations, H.R.
REP. No. 91-1464, 91st Cong., 2d Sess. (1970) ___ 367
l.lf Congressional Record, Vol. 116 (1970) 378
(1) July 9: House discussion, pp. 23532-23533 378
(2) Sept. 28: House approving Reorganization Plan
No. 3 of 1970 to Establish Environmental Pro-
tection Agency as an independent entity of
Government, pp. 33871-33876; 33879-33884;
34015 380
1.2 National Environmental Policy Act of 1969, 42 U.S.C.
§§4332(2) (c), 4344(5) (1970) 407
1.2a National Environmental Policy Act of 1969, Jan-
uary 1, 1970, P.L. 91-190, §§102(2) (c), 204(5), 83
Stat. 853, 855 414
xiii
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xiv CONTENTS
Page
(1) Senate Committee on Interior and Insular Af-
fairs, S. REP. No. 91-296, 91st Cong., 1st Sess.
(1969) 420
(2) House Committee on Merchant Marine and
Fisheries, H.R. REP. No. 91-378 (Part 2), 91st
Cong., 1st Sess. (1969) _... 458
(3) Committee of Conference, H.R. REP. No. 91-
765, 91st Cong., 1st Sess. (1969) 467
(4) Congressional Record, Vol. 115 (1969) 482
(a) July 10: Considered and passed Senate,
pp. 19008-19009, 19013 482
(b) Sept. 23: Amended and passed House, pp.
26569-26591 486
(c) Oct. 8: Senate disagrees to House amend-
ments, agreed to conference, pp. 29066-
29074, 29076-29089 538
(d) Dec. 20: Senate agreed to conference re-
port, pp. 40415-40417, 40421-40427 580
(e) Dec. 22: House agreed to conference report,
pp. 40923-40928 597
Volume II
1.3 Environmental Quality Improvement Act of 1970, 42 U.S.C.
§4371etseq>. (1970) 611
1.3a Environmental Quality Improvement Act of 1970,
April 3, 1970, P.L. 91-224, Title II, 84 Stat. 114 __ 614
(1) House Committee on Public Works, H.R. REP.
No. 91-127, 91st Cong., 1st Sess. (1969) 617
(2) Senate Committee on Public Works, S. REP.
No. 91-351, 91st Cong., 1st Sess. (1969) 617
(3) Committee of Conference, H.R. REP. No. 91-
940, 91st Cong., 2d Sess. (1970) 645
(4) Congressional Record 652
(a) Vol. 115 (1969), April 16: Passed p. 9259 652
(b) Vol. 115 (1969), Oct. 7: Amended and
passed Senate, pp. 28952-28954, 28956-
28957, 28962, 28967, 28969, 28972 652
(c) Vol. 116 (1970), March 24: Senate agreed
to conference report, pp. 9004-9005, 9009 _ 661
(d) Vol. 116 (1970), March 25: House agreed
to conference report, pp. 9333-9334 662
1.4 Amortization of Pollution Control Facilities, as amended,
26 U.S.C. §169 (1969) 663
1.4a Amortization of Pollution Control Facilities, Decem-
ber 30, 1969, 91-172, §704, 83 Stat. 667 665
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CONTENTS xv
Page
(1) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part I), 91st Cong., 1st Sess.
(1969) 670
(2) House Committee on Ways and Means, H.R.
REP. No. 91-413 (Part II), 91st Cong., 1st
Sess. (1969) 675
(3) Senate Committee on Finance, S. REP. No.
91-552, 91st Cong., 1st Sess. (1969) 679
(4) Committee of Conference, H.R. REP. No. 91-
782, 91st Cong., 1st Sess. (1969) 684
(5) Congressional Record, Vol. 115 (1969) 690
(a) Aug. 7: Debated and passed House pp.
22746, 22774-22775 690
(b) Nov. 24, Dec. 5, 8, 9: Debated and passed
Senate, pp. 35486, 37321-37322, 37631-
37633, 37884-37888 691
(c) Dec. 22: Senate agrees to conference re-
port, p. 40718* 705
(d) Dec. 22: House debates and agrees to con-
ference report, pp. 40820, 40900* 705
1.5 Department of Transportation Act, as amended, 49 U.S.C.
§§1651, 1653(f), 1655(g), 1656 (1968) 706
1.5a Department of Transportation Act, October 15,
1966, P.L. 89-670, 332, 4(f), (g), 6, 7, 80 Stat. 931_ 733
(1) House Committee on Government Operations
H.R. REP. No. 1701, 89th Cong., 2d Sess. (1966) 736
(2) Senate Committee on Government Operations,
S. REP. No. 1659, 89th Cong., 2d Sess. (1966) 737
(3) Senate Committee on Government Operations,
S. REP. No. 1660, 89th Cong., 2d Sess. (1966) 745
(4) Committee of Conference, H.R. REP. No. 2236,
89th Cong., 2d Sess. (1966) 755
(5) Congressional Record, Vol. 112 (1966) 769
(a) Aug. 24: Debated, amended and passed
House, pp. 21236-21237; 21275 769
(b) Sept. 29: Amended and passed Senate, pp.
24374-24375, 24402-24403; 771
(c) Oct. 13: House agrees to conference report,
pp. 26651-26652; 773
(d) Oct. 13: Senate agrees to conference report,
pp. 26563, 26568. 774
1.5b Federal Highway Act of 1968, August 23, 1968, P.L.
90-495, §18(b), 82 Stat. 824. 776
(1) Senate Committee on Public Works, S. REP.
No. 1340, 90th Cong., 2d Sess. (1968). 777
(2) House Committee on Public Works, H.R. REP.
No. 1584, 90th Cong., 2d Sess. (1968). 778
(3) Committee of Conference, H.R. REP. No. 1799,
90th Cong., 2d Sess. (1968). 780
(4) Congressional Record, Vol. 114 (1968): 783
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xvi CONTENTS
Page
(a) July 1: Debated, amended and passed
Senate, pp. 19529, 19530, 19552; 783
(b) July 3: Amended and passed House, pp.
19937, 19947, 19950;* 786
(c) July 26: House agrees to conference report,
pp. 23712, 23713; 786
(d) July 29: Senate agrees to conference re-
port, pp. 24036, 24037, 24038. 786
1.6 Federal Aid Highway Act of 1970, as amended, 23 U.S.C.
§109(h), (i), (j) (1970). 788
1.6a Federal Aid Highway Act of 1970, December 31,
1970, P.L. 91-605, §136(b), 84 Stat. 1734. 791
(1) House Committee on Public Works, H.R. REP.
No. 91-1554, 91st Cong., 2d Sess. (1970). 792
(2) Senate Committee on Public Works, S. REP.
No. 91-1254, 91st Cong., 2d Sess. (1970). 793
(3) Committee of Conference, H.R. REP. No. 91-
1780, 91st Cong., 2d Sess. (1970). 798
(4) Congressional Record, Vol. 116 (1970): 800
(a) Nov. 25: Debated and passed House, pp.
38936-38937, 38961-38962, 38974-38976,
38997; 800
(b) Nov. 25: Proceedings vacated, laid on the
table, pp. 39007-39014; 812
(c) Dec. 7: Passed Senate, Senate insists on its
amendments and asks for conference, p.
40095; 813
(d) Dec. 8: Action of House rescinded, passed
House, House disagrees to Senate amend-
ments and agrees to conference, p. 40265; __ 813
(e) Dec. 17-18: House agrees to conference re-
port, pp. 42512-42518; 814
(f) Dec. 19: Senate agrees to conference report,
pp. 42717, 42723. 816
1.7 Airport and Airway Development Act, 49 U.S.C. §§1712(f),
1716(c)(4), (e) (1970). 818
1.7a Airport and Airway Development Act of 1970, P.L.
91-258, §§12(f), 16(c)(4), (e),84 Stat. 221, 226. __ 821
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 91-601, 91st Cong.,
1st Sess. (1969). 824
(2) Senate Committee on Commerce, S. REP. No.
91-565, 91st Cong., 1st Sess. (1969). 831
(3) Committee of Conference, H.R. REP. No. 91-
1074, 91st Cong., 2d Sess. (1970). 834
(4) Congressional Record: 837
(a) Vol. 115 (1969), Nov. 6: Considered and
passed House, pp. 33293, 33307-33308,
33342; 837
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CONTENTS xvii
Page
(b) Vol. 116 (1970), Feb. 25-26: Considered
and passed Senate, amended, pp. 4842,
5069-5072, 5082-5083; __ 842
(c) Vol. 116 (1970), May 12: Senate agreed to
conference report p. 15136; 852
(d) Vol. 116 (1970), May 13: House agreed to
conference report, pp. 15294, 15295, 15297- 852
1.8 Disaster Assistance Act, 42 U.S.C. §4401 et seq. (1970).__ 854
1.8a The Administration of Disaster Assistance, Decem-
ber 31, 1970, P.L. 91-606, Title II, 84 Stat. 1746.___ 874
(1) Senate Committee on Public Works, S. REP.
No. 91-1157, 91st Cong., 2d Sess. (1970). 891
(2) House Committee on Public Works, H.R. REP.
No. 91-1524, 91st Cong., 2d Sess. (1970). 925
(3) Committee of Conference, H.R. REP. No. 91-
1752, 91st Cong., 2d Sess. (1970): 951
(4) Congressional Record, Vol. 116 (1970) : 975
(a) Sept. 9: Debated, amended, and passed
Senate, pp. 31040-31042, 31044, 31048-
31051, 31058-31060, 31062-31063; 975
(b) Oct. 5: Debated, amended, and passed
House, pp. 34795-34798; 993
(c) Dec. 15, 17: House debated and agrees to
conference report, pp. 42212-42214; 1000
(d) Dec. 18: Senate agrees to conference re-
port, p. 42369.* 1005
(5) Statement by the President Upon Signing the
Bill into Law December 31, 1970, Weekly Com-
pilation of Presidential Documents, Vol. 7, No.
1, January 4, 1971 (p. 12). 1005
1.9 Interest on Certain Government Obligations, as amended,
26 U.S.C. §103(c)(4) (1971). 1006
1.9a Amendments to Interest on Certain Government Ob-
ligations, Int. Rev. Code, June 28, 1968, P.L. 90-364,
Title I, §107(a), 82 Stat. 266 1008
(1) House Committee on Ways and Means, H.R.
REP. No. 1104, 90th Cong., 2d Sess. (1968). __ 1009
(2) Senate Committee on Finance, S. REP. No. 1014,
90th Cong., 2d Sess. (1968). 1010
(3) Committee of Conference, H.R. REP. No. 1533,
90th Cong., 2d Sess. (1968). 1010
(4) Congressional Record, Vol. 114 (1968) :
(a) Feb. 29: Debated and passed House, p.
4704;* 1010
(b) March 26, 28, April 2: Debated in Senate
pp. 8159-8162; 1010
(c) June 20: House considers and passes con-
ference report, p. 18006;* 1017
(d) June 21: Senate agrees to conference re-
port, p. 18179 1017
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xviii CONTENTS
Page
1.9b Revenue Act of 1971, December 10, 1971, P.L. 92-
178, Title III, §315(a), 85 Stat. 529. 1017
(1) House Committee on Ways and Means, H.R.
REP. No. 92-533, 92d Cong., 1st Sess. (1971).* 1018
(2) Senate Committee on Finance, S. REP. No.
92-437, 92d Cong., 1st Sess. (1971).* 1018
(3) Committee of Conference, H.R. REP. No. 92-
708, 92d Cong., 1st Sess. (1971). 1018
(4) Congressional Record, Vol. 117 (1971) : 1019
(a) Oct. 5, 6: Considered and passed House,
pp. H9155-H9178, H9229;* 1019
(b) Nov. 15, 22: Considered and passed Sen-
ate, amended, pp. S18564-S18579; 1019
(c) Dec. 9: Senate agreed to conference re-
port, pp. S21095-S21109;* 1056
(d) Dec. 9: House agreed to conference report,
pp. H12114-H12134.* 1056
1.10 Uniform Relocation Assistance and Real Property Ac-
quisition Policies for Federal and Federally Assisted Pro-
grams, 42 U.S.C. §4633 (1971). 1057
l.lOa Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, January 2, 1970,
P.L. 91-646, §213, 84 Stat. 1900. 1075
(1) Senate Committee on Government Operations,
S. REP. No. 91-488, 91st Cong., 1st Sess.
(1969) 1076
(2) House Committee on Public Works, H.R. REP.
No. 91-1656, 91st Cong., 2d Sess. (1970). 1084
(3) Congressional Record: 1089
(a) Vol. 115 (1969), Oct. 27: Passed Senate,
pp. 31533-31535; 1089
(b) Vol. 116 (1970), Dec. 7: amended and
passed House, pp. 40169-40172; 1095
(c) Vol. 116 (1970), Dec. 17: Senate agrees to
House amendment, with an amendment,
pp. 42137-42140; 1102
(d) Vol. 116 (1970), Dec. 18: House concurs
in Senate amendment, pp. 42506-42507. __ 1109
1.11 Departmental Regulations, as revised, 5 U.S.C. §301
(1966). 1112
l.lla Codification of 5 U.S.C. §301, September 6, 1966,
P.L. 89-554, 80 Stat. 379. 1112
(1) Senate Committee on the Judiciary, S. REP.
No. 1380, 89th Cong., 2d Sess. (1966). 1113
(2) Congressional Record, Vol. 112 (1966) : 1117
(a) July 25: Amended and passed Senate, p.
17010;* 1117
(b) Aug. 11: House concurs in Senate amend-
ments, p. 19077.* 1117
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CONTENTS xix
Page
1.12 Public Health Service Act, as amended, 42 U.S.C. §§203,
215, 241, 242, 242b, c, d, f, i, j, 243, 244, 244a, 245, 246,
247,264 (1970). 1118
1.12a The Public Health Service Act, July 1, 1944, P.L.
78-410, Title II, §§202, 214, Title III, §§301, 304,
305, 306, 311, 312, 313, 314, 315, 361, 58 Stat.
683, 690, 693, 695, 703. 1151
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1364, 78th Cong.,
2d Sess. (1944). 1158
(2) Senate Committee on Education and Labor, S.
REP. No. 1027, 78th Cong., 2d Sess. (1944) 1170
(3) Congressional Record, Vol. 90 (1944): 1172
(a) May 22: Amended and passed House, pp.
4794-4797, 4811; 1172
(b) June 22: Debated, amended, and passed
Senate, pp. 6486-6487, 6498-6500; 1179
(c) June 23: House concurs in Senate amend-
ments, pp. 6663-6664.* 1186
1.12b National Mental Health Act, July 3, 1946, P.L.
79-487, §§6, 7, (a, b), 9, 60 Stat. 423, 424. 1186
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1445, 79th Cong.,
1st Sess. (1945). 1189
(2) Senate Committee on Education and Labor, S.
REP. No. 1353, 79th Cong., 2d Sess. (1946).__ 1191
(3) Committee of Conference, H.R. REP. No. 2350,
79th Cong., 2d Sess. (1946). 1196
(4) Congressional Record, Vol. 92 (1946) : 1198
(a) March 14, 15: Amended and passed House,
pp. 2283, 2284, 2285-2286, 2291, 2992,
2293, 2294, 2295; 1198
(b) June 15: Amended and passed Senate, p.
6995; 1204
(c) June 26: Senate agrees to conference re-
port, p. 7584; 1205
(d) June 28: House agrees to conference re-
port, p. 7926. 1206
I.l2c National Heart Act, June 16, 1948, P.L. 80-655,
§§4(e, f), 5, 6, 62 Stat. 467. 1206
(1) Senate Committee on Labor and Public Wel-
fare, S. REP. No. 1298, 80th Cong., 2d Sess.
(1948). 1210
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 2144, 80th Cong.,
2d Sess. (1948). 1212
(3) Congressional Record, Vol. 94 (1948): 1217
(a) May 24: Amended and passed Senate, pp.
6297, 6298; 1217
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CONTENTS
Page
(b) June 8: Amended and passed House, pp.
7405-7406; 1219
(c) June 9: Senate concurs in House amend-
ment, p. 7555.* 1222
1.12d National Dental Research Act, June 24, 1948, P.L.
80-755, §4(e)(f), 62. Stat. 601. 1222
(1) Senate Committee on Labor and Public Wel-
fare, S. REP. No. 436, 80th Cong., 1st Sess.
(1947). 1223
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 2158, 80th Cong.,
2d Sess. (1948). 1224
(3) Congressional Record, Vol. 94 (1948): 1225
(a) June 8: Amended and passed House, p.
7417; 1225
(b) June 12: Amended and passed Senate, p.
7934;* 1226
(c) June 14: House concurs in Senate amend-
ments, p. 8175. 1226
1.12e Public Health Service Act Amendments, June 25,
1948, P.L. 80-781, §1, 62 Stat. 1017. 1227
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1927, 80th Cong., 2d
Sess. (1948). 1227
(2) Senate Committee on Labor and Public Works,
S. REP. No. 1578, 80th Cong., 2d Sess. (1948). 1230
(3) Congressional Record, Vol. 94 (1948) : 1232
(a) May 18: Amended and passed House, p.
6008;* 1232
(b) June 12: Passed Senate p. 7933 1232
1.12f Career Compensation Act of 1949, October 12, 1949,
P.L. 81-351, Title V, §521 (e), 63 Stat. 835. 1232
Volume III
(1) House Committee on Armed Services, H.R.
REP. No. 779, 81st Cong., 1st Sess. (1949). __ 1233
(2) Senate Committee on Armed Services, S. REP.
No. 733, 81st Cong., 1st Sess. (1949). 1234
(3) Congressional Record, Vol. 95 (1949) : 1235
(a) June 14: Debated in House, pp. 7656, 7676; 1235
(b) June 15: Passed House, p. 7775;* 1235
(c) Sept. 26: Amended and passed Senate, p.
13261;* 1235
(d) Sept. 27: House concurs in Senate amend-
ments, p. 13358.* 1236
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CONTENTS xxi
Page
1.12g 1953 Reorganization Plan No. 1, §§5, 8, 67 Stat.
631. 1236
(1) Message from the President Accompanying
Reorganization Plan No. 1, H.R. Doc. No. 102,
83rd Cong., 1st Sess. (1953). 1237
1.12h Amendment to Title 13 U.S. Code, August 31, 1954,
P.L. 83-740, §2, 68 Stat. 1025. 1239
(1) House Committee on the Judiciary, H.R. REP.
No. 1980, 83rd Cong., 2d Sess. (1954). 1240
(2) Senate Committee on the Judiciary, S. REP.
No. 2497, 83rd Cong., 2d Sess. (1954). 1242
(3) Congressional Record, Vol. 100 (1954): 1243
(a) July 6: Passed House, p. 9806;* 1243
(b) Aug. 19: Amended and passed Senate, p.
15123;* 1243
(c) Aug. 19: House concurs in Senate amend-
ments, p. 15269.* 1243
1.12i National Health Survey Act, July 3, 1956, P.L. 84-
652, §4, 70 Stat. 490. 1244
(1) Senate Committee on Labor and Public Wel-
fare, S. REP. No. 1718, 84th Cong., 2d Sess.
(1956). 1244
(2) House Committee on Interstate and For-
eign Commerce, H.R. REP. No. 2108, 84th
Cong., 2d Sess. (1956). 1249
(3) Congressional Record, Vol. 102 (1956): 1250
(a) March 29: Amended and passed Senate,
p. 5816;* 1250
(b) May 21: Objected to in House, p. 8562;*— 1250
(c) June 18: Amended and passed House, p.
10521.* 1250
1.12J An Act of Implementing §25 (b) of the Organic
Act of Guam, August 1, 1956, P.L. 84-896, §18, 70
Stat. 910. 1251
(1) House Committee on Interior and Insular Af-
fairs, H.R. REP. No. 2259, 84th Cong., 2d Sess.
(1956). 1251
(2) Senate Committee on Interior and Insular Af-
fairs, S. REP. No. 2662, 84th Cong., 2d Sess.
(1956). 1259
(3) Congressional Record, Vol. 102 (1954): 1260
(a) June 18: Passed House, p. 10510;* 1260
(b) July 23: Amended and passed Senate, p.
13909;* 1260
(c) July 25: House concurs in Senate, amend-
ments, p. 14450.* 1261
1.12k Amendments to §314 (c) of the Public Health Serv-
ice Act, July 22, 1958, P.L. 85-544, §1, 72 Stat. 400. 1261
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xxii CONTENTS
Page
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1593, 85th Cong.,
2d Sess. (1958). 1262
(2) Senate Committee on Labor and Public Wel-
fare, S. REP. No. 1797, 85th Cong., 2d Sess.
(1958). _— 1270
(3) Congressional Record, Vol. 104 (1958) : 1280
(a) April 21: Debated in House, pp. 6836-
6838; 1280
(b) May 5: Passed House, pp. 8004-8011; 1284
(c) July 10: Passed Senate, p. 13329. 1300
1.121 Health Amendments of 1959, July 23, 1959, P.L.
86-105, §1, 73 Stat. 239. 1301
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 590, 86th Cong., 1st
Sess. (1959). 1301
(2) Senate Committee on Labor and Public Wel-
fare, S. REP. No. 400, 86th Cong., 1st Sess.
(1959). 1309
(3) Congressional Record, Vol. 105 (1959): 1311
(a) July 6: Passed House, pp. 12735-12740;— 1311
(b) July 8: Passed Senate, p. 12979. 1315
1.12m International Health Research Act of 1960, July
12, 1960, P.L. 86-610, §3, 74 Stat. 364. 1315
(1) Senate Committee on Labor and Public Wel-
fare, S. REP. No. 243, 86th Cong., 1st Sess.
(1959). 1317
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1915, 86th Cong.,
2d Sess. (1960). 1321
(3) Congressional Record, Vol. 106 (1960): 1338
(a) June 24: Committee discharged, amended
and passed House, p. 14293;* 1338
(b) June 30: Passed Senate, pp. 15132-15133. 1338
1.12n Hawaii Omnibus Act, July 12, 1960, P.L. 86-624,
§29(c), 74 Stat. 419. 1340
(1) House Committee on Interior and Insular Af-
fairs, H.R. REP. No. 1564, 86th Cong., 2d
Sess. (1960). 1340
(2) Senate Committee on Interior and Insular Af-
fairs, S. REP. No. 1681, 86th Cong., 2d Sess.
(1960). 1341
(3) Congressional Record, Vol. 106 (1960): 1341
(a) May 16: Passed House, pp. 10355, 10357;* 1341
(b) June 28: Amended and passed Senate, p.
14684.* 1341
1.12o Amendments to §301 (d) of the Public Health Serv-
ice Act, September 15, 1960, P.L. 86-798, 74 Stat.
1053. 1342
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CONTENTS xxiii
Page
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 2174, 86th Cong.,
2d Sess. (1960). 1342
(2) Congressional Record, Vol. 106 (1960) : 1351
(a) Aug. 30: Passed House, p. 18394; 1351
(b) Aug. 31: Senate Committee discharged,
passed Senate, p. 18593. 1352
1.12p 1960 Amendments to Title III of the Public Health
Service Act, September 8, 1960, P.L. 86-720, §l(b),
2, 74 Stat. 820. 1352
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1780, 86th Cong.,
2d Sess. (1960). 1353
(2) Committee of Conference, H.R. REP. No.
2062, 86th Cong., 2d Sess. (1960). 1353
(3) Congressional Record, Vol. 106 (1960): 1353
(a) June 24: Amended and passed House, pp.
14294-14301;* 1353
(b) July 1: Amended and passed Senate, pp.
15383-15384;* 1353
(c) Aug. 26: Senate concurs in conference re-
port, pp. 17788-17789;* 1354
(d) Aug. 29: House concurs in conference re-
port, p. 18172.* 1354
1.12q Community Health Services and Facilities Act of
1961, October 5, 1961, P.L. 87-395, §2(a)-(d), 75
Stat. 824 1354
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 599, 87th Cong., 1st
Sess. (1961) 1355
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 845, 87th Cong., 1st Sess. (1961)._ 1361
(3) Committee of Conference, H.R REP. No. 1209,
87th Cong., 1st Sess. (1961) 1370
(4) Congressional Record, Vol. 107 (1961) : 1375
(a) July 25: Amended and passed House, pp.
13402, 13414, 13415; 1375
(b) Sept. 1: Amended and passed Senate, p.
17947; 1377
(c) Sept. 18: Conference report agreed to in
Senate, p. 19913;* 1378
(d) Sept. 20: Conference report agreed to in
House, p. 20484.* 1378
1.12r Extension of Application of Certain Laws to Ameri-
can Samoa, September 25, 1962, P.L. 87-688, §4 (a)
(1), 76 Stat. 587. 1378
(1) House Committee on Interior and Insular
Affairs, H.R. REP. No. 1536, 87th Cong., 2d
Sess. (1962) 1379
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xxiv CONTENTS
Page
(2) Senate Committee on Interior and Insular Af-
fairs, S. REP. No. 1478, 87th Cong., 2d Sess.
(1962). 1382
(3) Committee of Conference, H.R. REP. No. 2264,
87th Cong., 2d Sess. (1962). 1384
(4) Congressional Record, Vol. 108 (1962): 1385
(a) April 2: Amended and passed House, p.
5576; 1385
(b) May 17: Amended and passed Senate, pp.
8698, 8699; 1387
(c) Aug. 28: House agrees to conference report,
pp. 17881-17882; 1387
(d) Aug. 30: Senate agrees to conference re-
port, p. 18253. 1388
1.12s Amendments to Title IV of the Public Health Service
Act, October 17, 1962, P.L. 87-838, §2, 76 Stat. 1073. 1388
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1969, 87th Cong.,
2d Sess. (1962). 1389
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 2174, 87th Cong., 2d Sess. (1962). 1390
(3) Congressional Record, Vol. 108 (1962): 1392
(a) Aug. 27: Passed House, p. 17690; 1392
(b) Sept. 28: Amended and passed Senate, p.
21247;* 1 1393
(c) Oct. 3: House concurs in Senate amend-
ment, p. 21833.* 1393
1.12t Graduate Public Health Training Amendments of
1964, August 27, 1964, P.L. 88-497, §2, 78 Stat. 613.. 1393
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1553, 88th Cong., 2d
Sess. (1964). 1394
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 1379, 88th Cong., 2d Sess. (1964) _ 1403
(3) Congressional Record, Vol. 110 (1964) : 1411
(a) July 21: Passed House, pp. 16445, 16447; 1411
(b) Aug. 12: Passed Senate, pp. 19144-19145.* 1412
1.12u Community Health Services Extension Amendments,
August 5, 1965, P.L. 89-109, §4, 79 Stat. 436. 1412
(1) Senate Committee on Labor and Public Welfare,
S. REP. No. 117, 89th Cong., 1st Sess. (1965). 1413
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 249, 89th Cong., 1st
Sess. (1965). 1420
(3) Committee of Conference, H.R. REP. No. 676,
89th Cong., 1st Sess. (1965). 1426
(4) Congressional Record, Vol. Ill (1965): 1427
(a) March 11: Amended and passed Senate, pp.
4843, 4844; 1427
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CONTENTS xxv
Page
(b) May 3: House Committee discharged,
amended and passed House, p. 9141; 1428
(c) July 26: Senate agrees to conference re-
port, p. 18216; 1428
(d) July 27: House agrees to conference report,
p. 18425.* 1429
1.12v Amendments to Public Health Service Act, August
9, 1965, P.L. 89-115, §3, 79 Stat. 448. 1429
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 247, 89th Cong., 1st
Sess. (1965) 1430
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 367, 89th Cong., 1st Sess. (1965) __ 1438
(3) Committee of Conference, H.R. REP. No. 677,
89th Cong., 1st Sess. (1965). 1445
(4) Congressional Record, Vol. Ill (1965): 1446
(a) May 10: Debated, amended and passed
House, pp. 9958, 9960-9962; 1446
(b) June 28: Debated, amended and passed
Senate, pp. 14952, 14953, 14954; 1458
(c) July 26: Conference report agreed to in
Senate, p. 18215; 1460
(d) July 27: Conference report agreed to in
House p. 18428. 1460
1.12w 1966 Reorganization Plan No. 3, §§1, 3, 80 Stat.
1610. 1461
(1) Message from the President Transmitting Re-
organization Plan No. 3, 1966, H. Doc. No. 428,
89th Cong., 2d Sess. (1966). 1462
1.12x Comprehensive Health Planning and Public Health
Services Amendments of 1966, November 3, 1966,
P.L. 89-749, §§3, 5, 80 Stat. 1181. 1466
(1) Senate Committee on Labor and Public Welfare,
S. REP. No. 1665, 89th Cong., 2d Sess. (1966). 1479
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 2271, 89th Cong.,
2d Sess. (1966) 1483
(3) Congressional Record, Vol. 112 (1966) : 1490
(a) Oct. 3: Amended and passed Senate, pp.
24764-24766, 24768; 1490
(b) Oct. 17: Amended and passed House, pp.
27081,27085-27086,27088-27092; 1496
(c) Oct. 18: Senate concurs in House amend-
ments pp. 27381-27385. 1509
1.12y Partnership for Health Amendments of 1967, De-
cember 5, 1967, P.L. 90-174, §§2(a)-(f), 3(b) (2), 4,
8(a), (b), 9, 12(d), 81 Stat. 533. 1518
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 538, 90th Cong., 1st
Sess. (1967). 1522
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xxvi CONTENTS
Page
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 724, 90th Cong., 1st Sess. (1967)._ 1536
(3) Committee of Conference, H.R. REP. No. 974,
90th Cong., 1st Sess. (1967). 1546
(4) Congressional Record, Vol. 113 (1967): 1550
(a) Sept. 20: Debated, amended, and passed
House, pp. 26120-26132;* 1550
(b) Nov. 6: Debated, amended and passed,
Senate, pp. 31236-31238; 1550
(c) Nov. 21: House agrees to conference report,
p. 33338;* 1553
(d) Nov. 21: Senate agrees to conference re-
port, p. 33436.* 1553
1.12z Health Manpower Act of 1968, August 16, 1968,
P.L. 90-490, Title III, §302(b), 82 Stat. 789. 1553
(1) Senate Committee on Labor and Public Welfare,
S. REP. No. 1307, 90th Cong., 2d Sess. (1968). 1554
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 1634, 90th Cong., 2d
Sess. (1968). 1558
(3) Congressional Record, Vol. 114 (1968): 1561
(a) June 24: Amended and passed Senate, p.
18422;* 1561
(b) Aug. 1: Amended and passed House, p.
24801;* • _ 1561
1.12aa Public Health Training Grants Act, March 12, 1970,
P.L. 91-208, §3, 84 Stat. 52. 1562
(1) Senate Committee on Labor and Public Welfare,
S. REP. No. 91-586, 91st Cong., 1st Sess.
(1969) 1563
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 91-712, 91st Cong.,
1st Sess. (1969) 1570
(3) Committee of Conference, H.R. REP. No. 91-
855, 91st Cong., 2d Sess. (1970). 1570
(4) Congressional Record: 1572
(a) Vol. 115 (1969), Dec. 11: Amended and
passed Senate, pp. 37457, 38460; 1572
(b) Vol. 115 (1969), Dec. 16: Amended and
passed House, pp. 3918-3942;* 1572
(c) Vol. 116 (1970), Feb. 26: Senate agrees to
conference report, p. 5084; 1573
(d) Vol. 116 (1970), Feb. 26: House agrees to
conference report, pp. 5094-5095. 1574
1.12ab Medical Facilities Construction and Modernization
Amendments of 1970, June 30, 1970, P.L. 91-296,
Title I, §lll(b), Title IV, §401(b) (A) (1), (C),
(D), 84 Stat. 340, 352. 1576
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 91-262, 91st Cong.,
1st Sess. (1969) 1577
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CONTENTS xxvii
Page
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 91-657, 91st Cong., 2d Sess. (1970). 1579
(3) Committee of Conference, H.R. REP. No. 91-
1167, 91st Cong., 2d Sess. (1970). 1582
(4) Congressional Record: 1583
(a) Vol. 115 (1969), June 4: Amended and
passed House, pp. 14654, 14659, 14664;* __ 1583
(b) Vol. 116 (1970), April 7: Amended and
passed Senate, pp. 10542, 10546;* 1583
(c) Vol. 116 (1970), June 8: Senate agreed to
conference report, pp. 18757, 18758, 18761 ;* 1584
(d) Vol. 116 (1970), June 10: House agreed to
conference report, p. 19199.* 1584
1.12ac Public Health Service Drug Abuse Research, October
27, 1970, P.L. 91-513, Title I, §3(b), 84 Stat. 1241._ 1584
(1) Senate Committee on the Judiciary, S. REP.
No. 91-613, 91st Cong., 1st Sess. (1969). 1585
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 91-1444, 91st Cong.,
2d Sess. (1970) 1585
(3) Committee of Conference, H.R. REP. No. 91-
1603, 91st Cong., 2d Sess. (1970) 1587
(4) Congressional Record, Vol. 116 (1970): 1588
(a) Jan. 28: Amended and passed Senate, p.
1647;* 1588
(b) Sept. 24: Amended and passed House, p.
33667;* 1588
(c) Oct. 14: House agreed to conference report,
pp. 36585, 36651;* 1588
(d) Oct. 14: Senate agreed to conference report,
p. 36885.* 1588
1.12ad Heart Disease, Cancer, Stroke and Kidney Disease
Amendments of 1970, October 30, 1970, P.L. 91-515,
Title II, §§201-203, 210, 220, 230, 240, 250, 260, (a),
(b), (c)(l), 270, 280, 282, 292, Title VI, §601(b)
(2), 84 Stat. 1301, 1303-1308, 1311. 1589
(1) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 91-1297, 91st Cong.,
2d Sess. (1970). 1599
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 91-1090, 91st Cong., 2d Sess.
(1970) 1600
(3) Committee of Conference, H.R. REP. No. 91-
1590, 91st Cong., 2d Sess. (1970). 1638
(4) Congressional Record, Vol. 116 (1970): 1647
(a) Aug. 12: Amended and passed House, p.
28532; 1647
(b) Sept. 9: Amended and passed Senate, p.
31013; 1647
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xxviii CONTENTS
Page
(c) Oct. 13: House agreed to conference report,
pp. 36589-36591; __ 1648
(d) Oct. 14: Senate agreed to conference report,
pp. 36888-36892. __. 16B1
1.12ae Comprehensive Alcohol Abuse and Alcoholism Pre-
vention, Treatment, and Rehabilitation Act of 1970,
December 31, 1970, P.L. 91-616, Title III, §331, 84
Stat. 1853. 1651
(1) Senate Committee on Labor and Public Welfare,
S. REP. No. 91-1069, 91st Cong., 2d Sess.
(1970) 1651
(2) House Committee on Interstate and Foreign
Commerce, H.R. REP. No. 91-1663, 91st Cong.,
2d Sess. (1970). 1653
(3) Congressional Record, Vol. 116 (1970): 1654
(a) Aug. 10: Passed Senate, pp. 27857-27871;* 1654
(b) Dec. 18: Amended and passed House, pp.
42531, 42536;* 1654
(c) Dec. 19: Senate concurs in House amend-
ments, p. 42751.* 1654
1.13 The Davis-Bacon Act, as amended, 40 U.S.C. §§276a—
276a-5 (1964). 1655
[Referred to in 42 U.S.C. §1857j-3, 33 U.S.C. §1158 (g),
42 U.S.C. §3256]
1.13a The Davis-Bacon Act, March 3, 1931, P.L. 71-798,
46 Stat. 1494. 1659
(1) Senate Committee on Manufacturers, S. REP.
No. 1445, 71st Cong., 83d Sess. (1931). 1660
(2) House Committee on Labor, H.R. REP. No.
2453, 71st Cong., 83d Sess. (1931). 1662
(3) Congressional Record, Vol. 74 (1930-1931) :__ 1664
(a) Feb. 4: Passed Senate, pp. 3918-3919; 1664
(b) Feb. 28: Debated and passed House, pp.
6504-6521. 1667
1.13b Amendment to the Act of March 3, 1931, August 30,
1935, P.L. 74-403, 49 Stat. 1011. 1705
(1) Senate Committee on Education and Labor, S.
REP. No 1155, 74th Cong., 1st Sess. (1935). _.. 1708
(2) House Committee on Labor, H.R. REP. No.
1756, 74th Cong., 1st Sess. (1935). 1713
(3) Congressional Record, Vol. 79 (1935): 1720
(a) July 30: Amended and passed Senate, pp.
12072-12074; 1720
(b) Aug. 23: Debated and passed House, pp.
14384-14385. 1723
1.13c An Act to Require the Payment of Prevailing Rates
of Wages on Federal Public Works in Alaska and
Hawaii, June 15, 1940, P.L. 76-633, §1, 54 Stat. 399. 1726
(1) Senate Committee on Education and Labor, S.
REP. No. 1550, 76th Cong., 3d Sess. (1940). __ 1727
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CONTENTS xxix
Page
(2) House Committee on Labor, H.R. REP. No.
2264, 76th Cong., 3d Sess. (1940). 1728
(3) Congressional Record, Vol. 86 (1940-1941): .. 1728
(a) May 28: Passed Senate, p. 6997; 1731
(b) June 3: Passed House, p. 7401. 1732
1.13d Hawaii Omnibus Act, July 12, 1960, P.L. 86-624,
§26, 74 Stat. 418. 1733
(1) House Committee on Interior and Insular Af-
fairs, H.R. REP. No. 1564, 86th Cong., 2d Sess.
(1960) 1734
(2) Senate Committee on Interior and Insular Af-
fairs, S. REP. No. 1681, 86th Cong., 2d Sess.
(1960) 1735
(3) Congressional Record, Vol. 106 (1960): 1736
(a) May 16: Passed House, p. 10353;* 1736
(b) June 28: Amended and passed Senate, p.
14683;* 1736
(c) June 29: House concurs in Senate amend-
ment, p. 15009.* 1736
1.13e Amendments to Davis-Bacon Act, July 2, 1964, P.L.
88-349, §1, 78 Stat. 238. 1736
(1) House Committee on Education and Labor, H.R.
REP. No. 308, 88th Cong., 1st Sess. (1963) 1738
(2) Senate Committee on Labor and Public Welfare,
S. REP. No. 963, 88th Cong., 2d Sess. (1964).__ 1774
(3) Congressional Record, Vol. 110 (1964): 1788
(a) Jan. 28; Debated and passed House, pp.
1203-1233; 1788
(b) June 23: Passed Senate, pp. 14768-14770. 1858
1.13f Reorganization Plan No. 14 of 1950, 64 Stat. 1267,
5 U.S.C. §1332-15. 1863
1.13g Suspension of Provisions of Davis-Bacon Act of
March 3, 1931, Proclamation No. 4031, February 25,
1971, 36 Fed. Reg. 3457. 1864
1.13h Revocation of Proclamation of Suspension of Provi-
visions of Davis-Bacon Act, Proclamation No. 4040,
April 3, 1971, 36 Fed. Reg. 6335. 1866
Volume IV
1.14 Public Contracts, Advertisements for Proposals for Pur-
chases and Contracts for Supplies or Services for Govern-
ment Departments; Application to Government Sales and
Contracts to Sell and to Government Corporations, as
amended, 41 U.S.C. §5 (1958). 1869
[Referred to in 42 U.S.C. §1857b-l(a) (2) (D), 33 U.S.C.
§1155(g) (3) (A), 42 U.S.C. §242c(e)]
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xxx CONTENTS
Page
1.14a To Authorize Certain Administrative Expenses in
the Government Service, August 2, 1946, P.L. 79-600,
§9(a), (c), 60 Stat. 809. 1870
(1) House Committee on Expenditures in the Exec-
utive Departments, H.R. REP. No. 2186, 79th
Cong., 2d Sess. (1946). 1871
(2) Senate Committee on Expenditures in the Ex-
ecutive Departments, S. REP. No. 1636, 79th
Cong., 2d Sess. (1946). 1875
(3) Congressional Record, Vol. 92 (1946): 1878
(a) June 3: Amended and passed House, pp.
6165-6166;* 1878
(b) July 17: Amended and passed House, pp.
9189-9190; 1878
(c) July 26: House concurs in Senate amend-
ments, pp. 10185-10186. 1879
1.14b To Amend the Federal Property and Administrative
Services Act of 1949, September 5, 1950, P.L. 81-744,
§§ 6(a), (b), 8(c), 64 Stat. 583, 591 1880
(1) Senate Committee on Expenditures in the Ex-
ecutive Departments S. REP. No. 2140, 81st
Cong., 2d Sess. (1950). 1881
(2) House Committee on Expenditures in the Execu-
tive Departments, H.R. REP. No. 2747, 81st
Cong., 2d Sess. (1950). 1883
(3) Committee of Conference, H.R. REP. No. 3001,
81st Cong., 2d Sess. (1950). 1884
(4) Congressional Record, Vol. 96 (1950-1951): __ 1887
(a) July 26: Passed Senate, pp. 11092, 11094,
11096;* 1887
(b) Aug. 7: Amended and passed House, pp.
11919, 11921, 11922, 11927;* 1887
(c) Aug. 31: Senate agrees to conference re-
port, p. 13940;* 1887
(d) Aug. 31: House agrees to conference re-
port, p. 13993.* 1887
1.14c Small Business Opportunities Act, August 28, 1958,
85-800, §7, 72 Stat. 967. 1888
(1) Senate Committee on Government Operations,
S. REP. No. 2201, 85th Cong., 2d Sess. (1958)._ 1888
(2) Congressional Record, Vol. 104 (1958): 1891
(a) Aug. 14: Amended and passed Senate, p.
17539;* 1891
(b) Aug. 15: Committee discharged and passed
House, pp. 17908-17909.* 1891
1.15 Per Diem, Travel and Transportation Expenses; Experts
and Consultants; Individuals Serving Without Pay, as
amended, 5 U.S.C. §5703 (1969) 1892
[Referred to in 42 U.S.C. §§1857d(i), 1857e(e), 1857f-6e
(b)(2), 33 U.S.C. §§1159(a)(2)(B), 1160 (c) (4),(i), 15
U.S.C. §1475(b), 42 U.S.C. §242f (b) (5), (6)]
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CONTENTS xxxi
Page
1.15a Administrative Expenses Act, August 2, 1946, P.L.
79-600, §5, 60 Stat. 808. 1893
(1) House Committee on Expenditures in Executive
Departments, H.R. REP. No. 2186, 79th Cong.,
2d Sess. (1946). 1894
(2) Senate Committee on Expenditures in Executive
Departments, S. REP. No. 1636, 79th Cong., 2d
Sess. (1946) 1895
(3) Congressional Record, Vol. 92 (1946): 1895
(a) June 3: Amended and passed House, p.
6164;* 1895
(b) July 17: Amended and passed Senate, pp.
9189-9190; 1895
(c) July 26: House concurs in Senate amend-
ments, pp. 10185-10186.* 1896
1.15b Amendments to the 1946 Travel Expense Act, July
28, 1955, P.L. 84-189, §2, 69 Stat. 394. 1896
(1) Senate Committee on Government Operations,
S. REP. No. 353, 84th Cong., 1st Sess. (1955).__ 1897
(2) House Committee on Government Operations,
H.R. REP. No. 604, 84th Cong., 1st Sess.
(1955) 1903
(3) Committee of Conference, H.R. REP. No. 1088,
84th Cong., 1st Sess. (1955) : 1907
(4) Congressional Record, Vol. 101 (1955) : 1909
(a) June 20: Amended and passed House, pp.
8752, 8755;* 1909
(b) June 22: Amended and passed Senate, p.
8928;* 1909
(c) July 12: House agrees to conference report,
p. 10300;* 1909
(d) July 13: Senate agrees to conference re-
port, p. 10387.* 1909
1.15c Enactment of Title 5, United States Code, "Govern-
ment Organization and Employees," September 6,
1966, P.L. 89-554, §5703, 80 Stat. 499. 1909
(1) House Committee on the Judiciary, H.R. REP.
No. 901, 89th Cong., 1st Sess. (1965). 1911
(2) Senate Committee on the Judiciary, S. REP.
No. 1380, 89th Cong., 2d Sess. (1966). 1916
(3) Congressional Record: 1917
(a) Vol. Ill (1965), Sept. 7: Passed House, p.
25954;* 1917
(b) Vol. 112 (1966), July 25: Amended and
passed Senate, pp. 17006, 17010-17011;* _ 1917
(c) Vol. 112 (1966), Aug. 11: House concurs
in Senate amendments, p. 19077.* 1917
1.15d Increase Maximum Rates Per Diem Allowance for
Government Employees, November 10, 1969, P.L.
91-114, §2, 83 Stat. 190. 1918
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xxxii CONTENTS
Page
(1) House Committee on Government Operations,
H.R. REP. No. 91-111, 91st Cong., 1st Sess.
(1969) ______________________________________ 1918
(2) Senate Committee on Government Operations,
S. REP. No. 91-450, 91st Cong., 1st Sess.
(1969) ______________________________________ 1930
(3) Congressional Record, Vol. 115 (1969): ______ 1941
(a) March 26: Considered and ' passed House,
pp. 7748-7752; _________________________ 1941
(b) Oct. 8: Amended and passed Senate, p.
29042; ________________________________ 1951
(c) Oct. 30: House concurs in Senate amend-
ments, pp. 32423-32425. _________________ 1952
1.16 Disclosure of Confidential Information Generally, as
amended, 18 U.S.C. §1905 (1948). ______________________ 1958
[Referred to in 42 U.S.C. §§1857c-9(c), 1857d(j)(l),
1857f-6(b), 1857h-5(a)(l), 33 U.S.C. §§1160(f) (2), (k)
1.16a Disclosure of Information, June 25, 1948, P.L. 80-
772, §1905, 62 Stat. 791. ________________________ 1958
(1) House Committee on the Judiciary, H.R. REP.
No. 304, 80th Cong., 1st Sess. (1947). ________ 1959
(2) Senate Committee on the Judiciary, S. REP.
No. 1620, 80th Cong., 2d Sess. (1948). ________ 1960
(3) Congressional Record: ______________________ 1960
(a) Vol. 93 (1947), May 12: Amended and
passed House, p. 5049;* ________________ 1960
(b) Vol. 94 (1948), June 18: Amended and
passed Senate, pp. 8721-8722; __________ 1961
(c) Vol. 94 (1948), June 18: House concurs in
Senate amendments, p. 8865. _____________ 1961
1.17 Appropriation Bills
1.17a Agricultural-Environmental and Consumer Protec-
tion Appropriation Act of 1971, Title III, 85 Stat.
183. ___________________________________________ 1962
(1) House Committee on Appropriations, H.R. REP.
No. 92-289, 92d Cong., 1st Sess. (1971). ______ 1963
(2) House Committee on Appropriations, H.R. REP.
No. 92-253, 92d Cong., 1st Sess. (1971). ______ 1981
(3) Committee of Conference, H.R. REP. No. 92-
376, 92d Cong., 1st Sess. (1971). ____________ 1991
(4) Congressional Record, Vol. 117 (1971): ______ 1994
(a) June 23: Amended and passed House, pp.
H5739-H5742, H5746-H5748, H5765, H-
5767, H5778-H5779, H5810-H5811; _______ 1964
(b) July 15: Amended and passed Senate, pp.
S11161, S11162, S11163, S11164, S11165,
S11207, S11208, S11226-S11228; _________ 2005
(c) July 27: House agrees to conference report,
pp. H7170, H7171, H7172, H7173; ________ 2015
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CONTENTS xxxiii
Page
(d) July 28: Senate agrees to conference report,
pp. S12334-S12337.* 2016
1.17b Agricultural Environmental and Consumer Protec-
tion Programs Appropriation, August 22, 1972, P.L.
92-399, Title III, 86 Stat. 604 2017
(1) House Committee on Appropriations, H.R. REP.
No. 92-1175, 92d Cong., 2d Sess. (1972). 2019
(2) Senate Committee on Appropriations, S. Rep.
No. 92-983, 92d Cong., 2d Sess. (1972). 2058
(3) Committee of Conference, H.R. REP. No. 92-
1283, 92d Cong., 2d Sess. (1972). 2067
(4) Congressional Record, Vol. 118 (1972): 2074
(a) June 29: Considered and passed House, pp.
H6286-H6288, H6290, H6291, H6292, H-
6336; 2074
(b) July 27: Considered and passed Senate,
amended, pp. S12051-S12056, S12139-S-
12141; 2081
(c) Aug. 9: House and Senate agreed to confer-
ence report, pp. H7387-H7389, H3795,
H3796-H3797, S13161-S13162 2093
2. Executive Orders
2.1 E.G. 11472, Establishing the Environmental Quality Coun-
cil and the Citizens Advisory Committee on Environmental
Quality, February 29, 1969, 34 Fed. Reg. 8693 (1969). ___ 2107
2.2 E.G. 11490, Emergency Preparedness Functions of Federal
Departments and Agencies, October 30, 1969, as amended,
35 Fed. Reg. 5659 (1970). 2111
2.3 E.G. 11507, Prevention, Control, and Abatement of Air and
Water Pollution at Federal Facilities, February 4, 1970, 35
Fed Reg. 2573 (1970). 2163
2.4 E.O. 11514, Protection and Enhancement of Environmental
Quality, March 5, 1970, 35 Fed. Reg. 4247 (1970). 2169
2.5 E.O. 11575, Administration of the Disaster Relief Act of
1970, as amended by E.O. 11662, March 29, 1972, 37 Fed.
Reg. 6563 (1972) 2173
2.6 E.O. 11587, Placing Certain Positions in Levels IV and V
of the Federal Executive Salary Schedule, March 15, 1971,
36 Fed. Reg. 475 (1971). 2175
2.7 E.O. 11628, Establishing a Seal for the Environmental Pro-
tection Agency, October 18, 1971, 36 Fed. Reg. 20285
(1971) 2176
2.8 E.O. 11222, Standards of Ethical Conduct for Government
Officers and Employees, May 8, 1965, 30 Fed. Reg. 6469
(1965). 2177
2.9 E.O. 11667, Establishing the President's Advisory Commit-
tee on the Environmental Merit Awards Program, April
20, 1972, 37 Fed. Reg. 7763 (1972). 2185
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xxxiv CONTENTS
Page
3. Regulations.
3.1 Reorganization and Republication, Environmental Protec-
tion Agency, 36 Fed. Reg. 22369 (1971). 2187
3.2 Statement of Organization and General Information, En-
vironmental Protection Agency, 40 C.F.R. §§1.1-1.43
(1972)
3.3 Public Information, Environmental Protection Agency, 40
C.F.R. §§2.100-2.111 (1972).
3.4 Employee Responsibilities and Conduct, Environmental
Protection Agency, 40 C.F.R. §§3.735-101—3.735-107
(1971)
3.5 Interim Regulations and Procedures for Implementing the
Uniform Relocation Assistance and Real Property Acqui-
sition Policies Act of 1970, Environmental Protection
Agency, 40 C.F.R. §§4.1-4.263 (1971).
3.6 Tuition Fees for Direct Training, Environmental Protec-
tion Agency, 40 C.F.R. §§5.1-5.7 (1972).
3.7 Certification of Facilities, Environmental Protection
Agency, 40 C.F.R. §§20.1-20.10 (1971).
3.8 General Grants Regulations and Procedures, Environ-
mental Protection Agency, 40 C.F.R. §§30.100-30.1001-3
(1972).
3.9 State and Local Assistance, Environmental Protection
Agency, 40 C.F.R. §§35.400-35.420 (1972)
3.10 Security Classification Regulation, Environmental Protec-
tion Agency, 41 C.F.R. §§11.1-11.6 (1972).
3.11 General, Environmental Protection Agency, 41 C.F.R.
§§15-1.000—15-1.5301 (1972)
3.12 Procurement by Formal Advertising, Environmental Pro-
tection Agency, 41 C.F.R. §§15-2.406-3-15—2.407-8
(1972)
3.13 Procurement by Negotiations, Environmental Protection
Agency, 41 C.F.R. §§15-3.51, 15-3.103, 15-3.405,
15-405-3, 15-3.600—15-3.606, 15-3.805, 15-3.808 (1972)-
3.14 Special Types and Methods of Procurement, Environmental
Protection Agency, 41 C.F.R. §§15-4.5300—15-4.5303
(1972).
3.15 Procurement Forms, Environmental Protection Agency,
41 C.F.R. §15-16.553-1 (1972).
3.16 Transportation, Environmental Protection Agency, 41
C.F.R. §§15-19.302—15-19.305 (1972).
3.17 Amortization of Pollution Control Facilities, Internal Rev-
enue Service, 26 C.F.R. §1.169 (1972).
3.18 Temporary Income Tax Regulations Under the Tax Reform
Act of 1969, Internal Revenue Service, 26 C.F.R. §§1.179-1,
1.642(f), 1.642(f)-l (1971).
3.19 Introduction, Environmental Protection Agency, 41 C.F.R.
§§115-1.100—115-1.110 (1971)
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CONTENTS xxxv
Page
4. Guidelines and Reports
4.1 The President's Environmental Program 2193
4.1a The President's 1971 Environmental Program com-
piled by the Council on Environmental Quality,
March 1971, pp. 1-205 2193
4.1b The President's 1972 Environmental Program, com-
piled by the Council on Environmental Quality,
March 1972, pp. 1-75, 223. 2353
Volume V
4.2 Council on Environmental Quality, Annual Reports, as re-
quired by National Environmental Policy Act of 1969, 42
U.S.C. 34341. 2419
4.2a The First Annual Report of the Council on Environ-
mental Quality, August 1970, pp. 1-241. 2419
4.2b The Second Annual Report of the Council on En-
vironmental Quality, August 1971, pp. 3-265. 2660
Volume VI
4.2c The Third Annual Report of the Council on En-
vironmental Quality, August 1972, pp. 3-348. 2923
4.3 Citizens' Advisory Committee on Environmental Quality
Reports to the President and the President's Council on
Environmental Quality, as required by E.G. 11472, 3102 (c). 3269
4.3a Report to the President and the President's Council
on Environmental Quality, Citizens' Advisory Com-
mittee on Environmental Quality, August 1969. 3269
4.3b Report to the President and the President's Council
on Environmental Quality, Citizens' Advisory Com-
mittee on Environmental Quality, April 1971. 3292
4.4 Selected Reports: 3317
4.4a "Ocean Dumping: A National Policy." Report to the
President by the Council on Environmental Quality,
October 1970. 3317
4.4b "Toxic Substances", Report by the Council on En-
vironmental Quality, April 1971. 3377
4.5 Interim Guidelines, Executive Office of the President's
Council on Environmental Quality, 36 Fed. Reg. 7724
(1970) 3416
4.6 The Report of HEW and EPA on the Health Effects of
Environmental Pollution, Pursuant to Title V of P.L. 91-
515, H.R. Doc. No. 92-241, 92d Congress, 2d Sess. (1972).- 3428
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xxxvi CONTENTS
Page
4.7 Interagency Agreements: 3461
4.7a Economic Dislocation Early Warning System Memoran-
dum of Understanding Between the Administrator of
the Environmental Protection Agency and the Secretary
of Labor (1971). 3461
4.7b Establishing and Maintaining an Industrial Security
Program, Interagency Agreement Between the Environ-
mental Protection Agency and the Department of De-
fense (1972). 3463
4.7c Cooperative Efforts Regarding Air and Water Quality
in Implementing the Everglades Jetport Pact, Memo-
randum of Understanding Between the Environmental
Protection Agency and National Park Service (1972). 3466
4.7d General Policy and Procedures for Providing Economic
and Technical Assistance to Developing Nations, Agree-
ment Between the Environmental Protection Agency and
the Agency for International Development (1972). 3468
4.7e Cooperative Program Entitled Modular-Size Integrated
Utility Systems, Memoradum of Understanding Be-
tween the Environmental Protection Agency and the
Department of Housing and Urban Affairs (1972). ___ 3473
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GUIDELINES AND REPORTS 2923
4.2c The Third Annual Report of the Council on Environmental
Quality, August 1972, pp. 3-348
the quest
for environmental
indices
Accurate and timely information on status and trends in the
environment is necessary to shape sound public policy and to imple-
ment environmental quality programs efficiently. Further, the Amer-
ican people are entitled to know whether the public and private
money being spent to protect the environment returns a commen-
surate improvement in environmental quality.
This chapter discusses why information on the environment is
so important and what difficulties stand in the way of a truly ade-
quate system of reporting environmental status and trends. The
difficulties are generally of two types: collecting accurate and rep-
resentative data and presenting or analyzing the data so as to render
it both comprehensible and meaningful.
One of the most effective ways to communicate information on
environmental trends to policymakers and the general public is with
indices. An index is a quantitative measure which aggregates and
summarizes the available data on a particular problem. There are
many types and forms of indices. An index can be just a simple
ratio, for example, the ratio of average ambient air pollution to a
standard, or it can be a complex formulation involving a number
of factors and a variety of mathematical manipulations. The nature
and complexity of the index used will depend on the subject matter
and the purpose the index is to serve. It is important that any index
-------
2924 LEGAL COMPILATION—GENERAL
be backed up by more detailed but comprehensible components to
allow more specific analysis of environmental trends.
Information on the environment can be presented to the public
in a format which lies anywhere along a continuum ranging from
the raw data at one extreme to a single index number for the whole
environment at the other. The raw data end of the continuum is
the most precise in the sense of providing the details of a particular
environmental condition—but the least meaningful to policymakers
and the general public. At the other extreme, a single index num-
ber representing total environmental quality might seem meaningful
to the public but would involve aggregating and summarizing so
much diverse data that it would likely be misleading in many im-
portant respects. Additionally, the degree of generalization involved
would make such an index virtually useless to policymakers and
technical people concerned with specific environmental problems.
On the other hand, the use of a limited number of environmental
indices, by aggregating and summarizing available data, could illus-
trate major trends and highlight the existence of significant environ-
mental conditions. It also could provide the Congress and the
American people measures of the success of Federal, State, local, and
private environmental protection activities. An analogy might be
drawn with the economic area, where the Consumer Price Index,
Wholesale Price Index, and unemployment rates provide a useful
indication of economic trends and of the success of Government
policies in dealing with these areas.
The development of environmental indices has been slow. Many
useful environmental data, therefore, lie in bulky volumes or on
computer tapes and are used only rarely. The Council, working closely
with other Federal agencies, is attempting to develop meaningful
indices to remedy this situation.
The importance of environmental monitoring information and the
difficulties of developing indices will be discussed in the context of
several aspects of environmental quality: air pollution, water pollu-
tion, pesticides, land use, wildlife, and toxic substances. During the
past year we have studied intensively the quality and availability of
data in each of these areas.
For air and water pollution we have presented several indices.
However, it must be stressed that the indices used in this chapter are
very tentative. All of them are unsatisfactory in some respects, and
most of them have not been adequately tested in the field to deter-
mine their validity. They are presented to illustrate the types of
environmental indices that can be developed and to stimulate further
work on such indices. We believe that their publication in this report,
despite their shortcomings, will stimulate discussion and analysis and
thereby quicken the process of developing satisfactory indices of en-
vironmental quality.
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GUIDELINES AND REPORTS 2925
air pollution*
Progress in developing indices for air pollution is more advanced
than in any other environmental area. Much remains to be done to
sharpen the accuracy and timeliness of the data, but there are several
composite measures of air pollution that provide sound indicators of
air quality. More than one measure is necessary because there are
several distinct aspects of the air pollution problem.
The amount of pollutants emitted from particular sources is the
best measure of the effectiveness of control programs. However, this
measure does not indicate changes in actual air quality, because it
does not take into account wind, climate, terrain, and other factors
governing the dispersion of pollutants once they are emitted. Thus,
both emissions and ambient air quality must be measured. Finally, it
is important to measure air pollution in terms of its effects on human
health, materials, and vegetation.
Based on almost all measures used, air quality on a nationwide
basis improved between 1969 and 1970. While some of this apparent
improvement may be due to changes in weather, localized short-term.
fluctuations, or other factors aside from a meaningful reduction of
emissions, the trend is promising.
Table 1 shows estimated emissions of air pollutants by weight for
calendar year 1970. The data are based on calculations made by
Federal air pollution officials, not on actual emissions measurements.
For two of the five major pollutants, emissions in 1970 were less than
they were in 1969, while emissions were greater for only one pollu-
tant. This contrasts with the 1968-69 data when emissions of four
of the five pollutants increased over the previous year. The total
weight of pollutants from particular sources is not shown in Table 1
because of the distortion inherent in combining the simple weights of
the different pollutants.
The weight of air pollution emissions is only a rough measure
of air pollution. Indeed, the geographic concentration of pollution
sources and the dispersion of the pollutants once they leave the sources
determine actual air quality. Also, weight does not take into account
the effects of a pollutant. For example, Table 1 considers all par-
ticulates as a single category, although the environmental impact of
very small particulates, which add little to total weight, differs
markedly from the larger particulates. (It takes 1,000 particles, 0.5
microns in diameter, to equal the weight of 1 participle, 5 microns
in diameter, of the same material. Yet 1 ton of fine particles in the
air reduces visibility 25 times as much as 1 ton of larger particles.
And finer particles are also more of a health hazard.1)
*Throughout this section the following abbreviations will be used: CO—
carbon monoxide; TSP—total suspended particulates; SOx—sulfur oxides;
HC—hydrocarbons; NO*—nitrogen oxides.
-------
2926 LEGAL COMPILATION— GENERAL
.
Estimated Emissions of Air Pollutants by Weight,
.Jfcjft *4" * , m . m .. , toi'im afa.'-td «•*«. "•« . j* *<^, _ . „ . , i ^' t • "^ •< *
CO | •"«& HC Hfe
ItJ.tt ,0,7* 1.0 " Jf»S ' "11,7
" '
14.*
-g j , 0_
Table 2 provides some historical perspective on total emissions. It
shows that over the past 30 years all of the major pollutants, except
particulate matter, have increased significantly. Given the major in-
creases in population and industrialization which have marked this
period and the short time in which serious control efforts have been
undertaken, this finding is not surprising.
Figure 1 pictures the long-term trends for the ambient air levels
of three major pollutants—CO, SO2, and TSP. This type of trend
analysis is quite useful, but like the analysis of pollution tonnage, it
does not indicate the comparative damage different pollutants can
cause. One of the advantages of an index is that, through weighting,
the comparative importance of the different elements included in the
index can be taken into account. An air pollution index, for example,
would weight a ton of sulfur oxides much more heavily than a ton
-------
GUIDELINES AND REPORTS
2927
of carbon monoxide, because a ton of sulfur dioxide is more damag-
ing to health.
Considerable knowledge about the effects of a pollutant is neces-
sary to weight the elements in an index accurately. In most environ-
mental areas, further research is necessary to add to our knowledge
about effects. For example, the ambient air quality standards, on
which most of the air pollution indices are based, are still somewhat
controversial, and research is underway to understand more fully
the long-term health effects of air pollutants, so that the scientific
basis for the standards can be improved.
Several indices have been developed to show trends in actual
air quality. Two indices—the Mitre Air Quality Index (MAQI)
and the Extreme Value Index (EVI)—have been developed for
the Council by the Mitre Corp. Another index, the Oak Ridge Air
Quality Index (ORAQI), has been developed by the Oak Ridge
National Laboratory. The ORAQI is computed quite differently
from the Mitre index and for that reason has been included in some
of the tables for comparative purposes.2
The Mitre Air Quality Index combines indices for individual
pollutants for each site. Each pollutant index relates measured levels
of pollution to the national secondary air quality standards promul-
gated by the Environmental Protection Agency.3 These standards,
which go beyond the primary or health protection standards to
Figure 1
Trends in Ambient Levels of Selected Air Pollutants
concentrations of TSP
and SOj (pg/m3)
Nasn sites
a 80
160
concentrations of
CO (pg/m»)
Camp stations
' 9000
8000
.^J.^.v-^V^gj^^^»VgM«r&
•" n^tfS^tvf- *
v- x \*. *%» V ,.-\v.-:»-J
1000
1957 1959 1961 1963 1965 1967 1969 1970
Source: The Mitre Corp. MTR-6013. Based on Environmental Protection Agency data
-------
2928 LEGAL COMPILATION—GENERAL
protect vegetation, materials, and aesthetics, refer to annual averages
and extreme values not to be exceeded more than once per year.4
Using the ratio of pollution levels to the standard permits a com-
parison of different pollutants which may have very different effects.
For any pollutant, an index value greater than one means that the
standard has been exceeded. A value less than one indicates that the
standard has not been exceeded. Thus if the combined index for all
pollutants is less than one, all standards are being met.1"'
While the MAQI shows how the pollutant concentrations relate
to both long- and short-term standards, the Extreme Value Index
measures the extent of very high-level pollution for short periods
of time. The pollution conditions measured by EVI are those which
are most directly related to personal comfort and well-being. Like
the MAQI, the EVI is first computed for each individual pollutant
and then aggregated for all pollutants at a given site. This index
consists of an accumulation of measured values which exceed a
given extreme standard divided by the standard. The extreme
standards are the EPA secondary standards for short-term (1-to-
24-hour) concentrations.6
The ORAQI, like the MAQI, is based on the EPA secondary
standards. It puts less emphasis on violation of the standards than
do the MAQI and EVI. However, it is mathematically adjusted
so that a value of 10 represents essentially unpolluted air and a value
of 100 represents all pollutant concentrations reaching the federally
established standards.7
Data were available to compute the MAQI and EVI for three
of the five pollutants for which national standards have been estab-
lished—sulfur dioxide, nitrogen dioxide, and total suspended par-
ticulates—but not for carbon monoxide and photochemical oxidants.
Tables 3 and 4 show the 1968, 1969, and 1970 values for MAQI
and EVI in communities with different population sizes. Because
the data come from the National Air Sampling Network, which
covers only one site for each community, they often differ from
local monitoring data.
As Tables 3 and 4 show, the worst air pollution conditions are in
the largest cities, which is hardly surprising. What is surprising is
that, according to the indices, communities under 100,000 popula-
tion suffer problems almost as severe as those in the large cities. Some-
what anomalous findings like this may be due as much to the sample
of communities chosen or to the location of the monitoring site as
they are to actual air quality conditions. The cities under 100,000 in
the sample used were generally selected because they had air pol-
lution problems, and thus the true meaning of the data is probably
that dirty, small cities have problems just as severe as large cities.
Communities of all sizes showed marked improvement on the
MAQI and EVI scales between 1968 and 1970. However, as shown
in Table 5, this improvement still was not enough for most commu-
nities to meet the EPA secondary standards.
-------
GUIDELINES AND REPORTS
2929
.
-------
2930
LEGAL COMPILATION—GENERAL
Table 6 traces the trends in several major cities. (Data for addi-
tional cities are in Appendix 5 of this chapter.) Most of the cities
have followed the general pattern of improved air quality, indicated
by the MAQI, EVI, or ORAQI values. The table also compares the
primary national ambient air quality standards to the annual average
of each of the three pollutants covered by the indices. It must be
stressed, however, that all of the data in Tables 5 and 6 are based on
only one sampling station in each city, which may considerably dis-
tort the results. For example, it is likely that if more complete data
were available, they would show that some portion of the cities shown
meeting the SO2 standards in Table 5 had exceeded those standards.
The potential health hazard from air pollution can be simply meas-
ured by estimating the number of people exposed to air pollution
that exceeds the EPA primary (health protection) standards. EPA
has made such an estimate for a sample of the U.S. population,
using 1964-66 monitoring data.8 While 43 percent of the sample
population lived in areas where the monitoring data indicated that
the sulfur dioxide primary standards were exceeded, the level of
photochemical oxidants exceeded the standard in all the areas
sampled. These are very rough estimates based on old data. Because
f*WtS
Air
- •„ tfftR,"
«*N* •'
; tits- *•v
ORAQI
m
86
tfr1 ' »^»-
'!**• , O«
'V>-3&?V
S**>
i^ 4'tft.H
if. • *«r.'i
146
138
Ratio of
"
^» /f4"*
^8» .--^«
J»'" '
&8».. .,_ ,
- tJB», • ';•",$£*•
.4fer f :" ~"' *
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8,4*'
A
%, *'
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ST. LOUIS
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H-J*.****- ^ Jutfl,1"1 <9f*TW!j«. i— _ iui
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. JM. „ p^p,-' -.=• a^a-
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10
-------
GUIDELINES AND REPORTS 2931
of the importance of the potential health effects of air pollution, in-
formation of this kind should be collected and made available on a
regular and timely basis.
All of the data in this discussion suffer from the problems of too
few monitoring sites whose locations are determined by imprecise
criteria. Unreliable instrumentation and inadequate frequency of
measurement also are problems. It will take a long time to remedy
these defects. But at least for air pollution, unlike many other aspects
of the environment, we know fairly specifically what data should be
collected and what kind of indices will best picture its status and
trends. The air pollution indices are useful to the public and the
policymaker alike, to help them judge how serious the problem is,
whether control programs are succeeding, and what aspects of the
problem aie getting better or worse.
water pollution
The approach to developing a water pollution index is similar to
that of an air pollution index, except that the number of water pol-
lutants usually measured is larger and there are no uniform national
standards of water quality. Also, water is used for many more pur-
poses than air. The range of possible chemical and biological re-
actions that take place in water, viewed in the context of the many
possible alternative uses of water, makes measuring water quality an
extremely complex task.
EPA has developed the "PDI index" (prevalence-duration-
intensity index), which allows any water body to be described in
terms of the prevalence, duration, and intensity of its water pollution,
corrected for natural background pollutant levels. The index is based
on how much water quality deviates from Federal-State water
quality standards, which vary from place to place, depending on
locally established designations as to what the water should be used
for (drinking, swimming, industrial waste discharge, etc.).
The prevalence of water pollution was first assessed in 1970 and
reported in last year's Annual Report. The 1970 figures indi-
cated that 27 percent of the U.S. stream and shoreline miles were
polluted. EPA assessed it again a year later and found that, despite
improved field reporting, the prevalence of pollution was about the
same nationally (29 percent) in 1971.9
Table 7 summarizes the EPA data for major drainage basins.
Unfortunately, of the four apparently significant shifts in reported
water pollution that took place—in the Ohio, Gulf, Missouri, and
Northeastern Basins—three are so obscured by variations in procedure
that it is impossible to evaluate the degree of real change. Both the
Gulf and Missouri Basins reported an enormous improvement in
compliance with State water quality standards, but the apparent
improvement between 1970 and 1971 is almost certainly due to more
accurate reporting, not to better water. In the case of the Ohio
-------
2932
LEGAL COMPILATION—GENERAL
River Basin, the 1970 assessment overlooked a large number of
smaller tributaries which were polluted.10
The last column of Table 7 shows the duration-intensity factor for
the 1971 figures. Whereas the prior columns simply indicate what
portion of the stream was polluted, the duration-intensity factor
indicates how badly polluted it was and for how long during the year
it was in violation of the standards. For the complete PDI index, the
number of polluted stream miles would be multiplied by the dura-
tion-intensity factor. Thus the higher the factor is, the worse the
pollution.
The EPA PDI index has several advantages. It covers all U.S.
surface waters. It considers the relationship of actual water quality
to State standards of desirable water quality. And it allows for
judgment as to the effects of the water pollution in any particular
stream. It has proved a useful management tool, for planning, for
directing resources to the most polluted areas and for suggesting im-
provements in monitoring coverage.
However, the index also has major disadvantages. Most important,
its estimates of water quality conditions are based primarily upon
judgmental evaluation by regional EPA personnel, although data
are used from the approximately 10,000 stations that collect water
quality data. Thus, although the data from the stations are examined
by EPA personnel, they are not used in a systematic manner which
could be replicated. Second, the index does not identify the type
of pollutant responsible for the pollution, e.g., BOD, suspended solids,
or nutrients. EPA plans to add this information the next time the
12
-------
GUIDELINES AND REPORTS 2933
PDI is repeated. Finally, the index is not sensitive enough to detect
trends except after several years.
While judgmental factors inherent in the PDI index help to adjust
for the numerous inadequacies of the actual water quality monitor-
ing data, CEQ considered it desirable to explore a different ap-
proach to gauging water quality trends, based more heavily on read-
ings from the water quality sampling stations. The Council thus
contracted with a consulting firm, Enviro Control, Inc., to develop
trend information based on the monitoring data collected by EPA,
the U.S. Geological Survey, and other Federal and State agencies.11
A sample of 140 Federal and State water quality stations across the
country was picked on the basis of how long the station had been
collecting data and how adequate the data were (see Figure 2).
Streams of all sizes were included as well as a number of estuarine,
reservoir and Great Lakes locations. The stations represent a variety
of types of areas, ranging from highly urbanized and industrialized
to completely undeveloped. However, because of the limited number
of stations from which the sample could be selected, it does not rep-
resent a complete and properly weighted cross section of all U.S.'
waters.
The water quality data were compared to data on the flow of the
water body. Unlike air pollution data, which cannot be corrected
easily for the complex effects of weather, it is known that flow rates
in streams and rivers directly affect water quality, and even crude
corrections for flow considerably improve our understanding of
pollution levels. Use of the flow data also permitted the streams to
be classified according to whether increased flow (more water in
the stream) was associated with greater or less pollution (runoff or
dilution trends, respectively, in the tables). The results of this anal-
ysis are shown in Tables 8 and 9.
The Enviro Control data show a mixed picture of trends in water
quality. The problem of nutrients (phosphorus and nitrogen) is
worsening dramatically in all types of basins, probably because of in-
creased use of fertilizer. Oxygen-demanding wastes are increasing
somewhat, mostly in high-population, high-industry basins. (Oxygen-
demanding wastes require oxygen for their decomposition. This
lowers dissolved oxygen (DO) levels in the water, and low DO levels
change fish populations and at very low levels result in odors and the
elimination of most fish life.) Surprisingly, the data show little correla-
tion between trends in the amount of oxygen-demanding wastes and
trends in the daytime dissolved oxygen in the water. This seeming in-
consistency may be because of where the monitoring stations are lo-
cated, the time of day the water is sampled, and such intervening
factors as oxygen production by algae. The complexity of the oxygen
relationships in waterways makes it quite difficult to comprehensively
trace changes in the oxygen content of the water.
Salinity (the saltiness of the water) shows mostly no trend or slight
improvement. The problem of suspended solids (primarily soil parti-
cles in the water) seems to be getting better.
-------
2934
Tables
LEGAL COMPILATION—GENERAL
Table 9
Trmfa
Po
Percent of Stations in
Number of stations
Wwtts
«airtcfll«r
percent '
Suspended soli ds and turbidity
-------
GUIDELINES AND REPORTS
2935
-------
2936 LEGAL COMPILATION—GENERAL
The most startling conclusion suggested by the data relates to the
effect of flow on pollution in the stream. The common notion is
that increased streamflow (from rain or melting snow) dilutes pollu-
tion and helps restore natural balances—unless the rain happens to
wash through area sources of pollution (such as fields sprayed with
pesticides) as it drains to the river. The Enviro Control data confirm
that in undeveloped or agricultural areas, where most of the pollu-
tion comes from runoff (the washing of soil, fertilizers, pesticides, etc.
into the water from fields and open land), rain or melting snow in-
creases the amount of runoff and thus pollution increases with flow.
But they also show, contrary to the common notion, that in areas of
high population and/or industry, only 20-30 percent of the sampled
basins show a flow dilution effect. In other words, point sources of
organic and nutrient pollution, such as industrial and municipal dis-
charges, appear to be overshadowed, in most of the stations that were
analyzed, by runoff sources, such as farms, feedlots, and possibly
urban runoff. However, the runoff trends which the data show also
may be caused by other factors, such as scouring of pollutants from
riverbeds by high flow.
The Enviro data reinforce some recent steps to place more em-
phasis on runoff sources. What they say, in essence, is that even if all
discharges of municipal and industrial pollution were stopped, many
streams would still be polluted as a result of discharges from runoff
sources. However, this definitely does not imply that municipal and
industrial pollution is unimportant. Not only do these sources dump
a large share of the pollutants in the Nation's waters, but they also
account for most of the toxic metals and chemicals (except pesticides)
which enter there.
Both the PDI and the Enviro data give some guidance for design-
ing water quality monitoring networks. They also illustrate vividly
the need for better data and improved analysis of water pollution
problems. Work is continuing in EPA, the Department of the In-
terior, and elsewhere to improve the collection and analysis of water
quality data. The National Sanitation Foundation has done some
encouraging work on an overall Water Quality Index.12 Our under-
standing of what the major sources of water pollution are, how they
contribute to the problem, and how we measure trends in water
quality, however, is inadequate.
If our enforcement programs and our financial investments in con-
trol are to have the maximum effect, we must greatly expand our
knowledge of the causes, sources, and trends in water pollution.
For example, if the Enviro analysis is confirmed by further work, it
points up the need to place much greater emphasis on nonpoint
sources of pollution.
pesticides
Pesticide contamination is not limited to any one medium. Excess
amounts of pesticides can contaminate air, water, soil, or food. One of
-------
GUIDELINES AND REPORTS 2937
the best ways to analyze multimedia environmental problems is to de-
velop a "materials balance" analysis, which traces a particular sub-
stance as it passes through various parts of the environment. A ma-
terials balance of pesticides would indicate the amounts of pesticides
introduced into the environment; the paths they traveled and the
chemical changes which occurred from introduction to final fate;
and how much ended up in birds, fish, humans, or elsewhere in the
environment.
The materials balance approach has several advantages. Because it
traces the environmental pathways of a substance, it can isolate the
most important points at which to act against environmental con-
tamination. By knowing the amounts likely to occur in different
media, it can anticipate the effectiveness of any particular control
measure. And by showing how much of the substance to which hu-
mans and wildlife will be exposed, it can help estimate how serious the
problem is.
With the aid of Stanford Research Institute, the Council investi-
gated what data were available on various aspects of pesticides. One
of the key questions was whether it would be possible to develop a ma-
terials balance analysis of pesticide flow through the environment.
Such an analysis would start with the domestic production of pesti-
cides. Data on domestic pesticide production and supply are reported
annually by the U.S. Tariff Commission and the Bureau of the Cen-
sus. Domestic supply (production plus imports minus exports) in
1970 amounted to 658 million pounds, compared with 695 million
pounds in 1969 and 228 million pounds in 1950. This did not include
elemental sulfur used in agriculture and other chemicals used only
in small part as pesticides (see Figure 3). It is not clear whether the
drop over the last year is significant.
Despite the wide variety of chemicals used as pesticides, production
figures for individual compounds are publicly available for less than
10 percent of the total.13 However, Figure 4 shows the total amount
of the major classes of pesticides produced—insecticides, herbicides,
and fungicides. Herbicides production increased rapidly over the
past 10 years. Insecticide production has also increased although less
rapidly, and fungicide production has diminished somewhat.
A significant trend, which does not show up in Figures 3 and 4, is
the decline in production and domestic supply of the more persistent
chlorinated hydrocarbon insecticides and the substitution of less
perisistent but more toxic chemicals. Domestic supply of the chlori-
nated hydrocarbons has dropped from a high in 1956 of 244 million
pounds to 31 million pounds in 1970. During the same time period,
production of parathions, a group of the organophosphate chemicals
used to replace the chlorinated hydrocarbons, increased from 7 mil-
lion pounds to 57 million pounds.14
There are few data on the specific manner in which pesticides are
used. The largest pesticide market, by far, is in the agricultural sec-
tor of the economy. But even the various uses in this sector are not
-------
2938
LEGAL COMPILATION—GENERAL
well documented. The Economics Research Service of the U.S. De-
partment of Agriculture surveyed 10,000 farms in the 1964 and 1966
growing seasons, and a survey of the 1971 season is currently being
analyzed.15
Despite the difficulty of extrapolating from such a sample, a few
implications can be drawn. First, agricultural pesticides use is not
evenly distributed. Two crops, cotton and corn, accounted for about
two-thirds of the total insecticides used. The bulk of the remaining
insecticides and most of the fungicides were sprayed on fruit and
vegetables. Forty-one percent of all agricultural herbicides were ap-
plied to corn.
Data from the 1966 survey further indicated that of the 891 mil-
lion U.S. acres under agriculture (including pasture lands), only 5
percent was treated with insecticides, 12 percent with herbicides,
and 0.5 percent with fungicides. And though cotton accounted for
47 percent of the total agricultural use of insecticides, an estimated
46 percent of the total cotton acreage received no insecticides.16
Figure 3
Domestic Supply of
Insecticides, Herbicides, and Fungicides
in millions
of pounds
1,200 -r-
1,000
800
600
400
200
IMPORTS
1950
1955
1960
1965
TOTAL
DOMESTIC
SUPPLY
TOTAL
DOMESTIC
PRODUCTION
1970
Source: Stanford Research Institute, "Environmental Indicators for Pesticides," Prepared for the
Council on Environmental Quality, April 1972
-------
GUIDELINES AND REPORTS
2939
Figure 4
U.S. Production of Synthetic Organic
Insecticides, Herbicides, and Fungicides
in millions
of pounds
1,200-
1,000
800'
600-
400-
200-
INSECTICIDES
TOTAL-
HERBICIDES
FUNGICIDES
1950
1955
1960
1965
1970
Source: Stanford Research Institute, "Environmental Indicators for Pesticides," Prepared for the
Council on Environmental Quality, April 1972
These data reflect wide regional variations in the types and prevalence
of pests and in pest control practices.
There has been considerable information collected about environ-
mental levels of a few pesticides in the air, soil, water, food, wildlife,
and man. Despite the quantity of this information, much of it has not
been collected systematically, and the data are not adequate to present
a total picture of the flow of pesticides through the environment.
Data on other aspects of the pesticide problem are even more
scanty. For example, the only regular sources of information on
pesticide poisonings and deaths are the Food and Drug Administra-
tion Poison Control Centers. However, these centers cover only 8 per-
cent of the hospitals in the United States, so the data grossly under-
estimate the actual number of cases. A 1969 survey in Iowa, by the
University of Iowa, uncovered over 700 cases of pesticide exposures
requiring medical attention. But only 88 of them were reported to
the poison control centers.17
-------
2940 LEGAL COMPILATION—GENERAL
Not only are the data on pesticides inadequate, but there are
also conceptual problems in organizing and presenting the data.
Pesticides, unlike most air and water pollutants, are deliberately
introduced into the environment for a beneficial purpose. Thus the,
mere presence of pesticides cannot be considered harmful to environ-
mental quality, although it is clear that pesticides can cause environ-
mental damage. This aspect of pesticide use will make the
development of overall pesticide indices very difficult.
The materials balance approach is a promising way to partially
surmount these difficulties. But in order to perform such analysis
the quality and availability of pesticides data will have to be im-
proved. More systematic and comprehensive data on pesticides supply
and application as well as resulting levels in water, air, wildlife, and
humans should be regularly collected and analyzed in a unified
fashion. Until they are, a picture of the total flow of pesticides
through the environment cannot be constructed.
toxic substances
Accuracy, completeness, and timeliness of data are prerequisites
to adequate environmental indices. There is almost no aspect of
the environment for which the monitoring data satisfy these criteria.
Even in such basic areas as air and water pollution, many of the data
are of questionable validity or are incomplete. In some areas the data
are sparse or nonexistent. A good example is toxic substances.
One of the obstacles to adequate data collection on toxic sub-
stances is the absence of any Federal program for systematically
regulating and collecting data. This gap would be filled by passage
of the Administration's Toxic Substances Control Act, which passed
the Senate on May 30 but which has yet to be acted upon by
the House.
Another obstacle is that much of the information related to toxic
substances is proprietary information which the manufacturers will
not make public. For example, most manufacturers consider the
amount of a particular substance that they produce to be a trade
secret. This makes it very difficult to do a materials balance analysis
of the flow of the substance through the environment, because the
amount of the substance that is produced cannot be determined.
Figure 5 shows an example of a materials balance analysis for cad-
mium. It traces the major sources, uses, and paths through the
environment. Through such an analysis the major sources of en-
vironmental pollution from cadmium can be pinpointed. Cadmium
is of particular concern because, as reported in a study by Oak
Ridge National Laboratory, the estimated daily average U.S. intake
of cadmium is between 0.02 and 0.1 parts per million, and there is
some evidence that reduction of lifespan may occur with continuous
exposure to 0.1 parts per million. Kidney damage may occur with a
50-year exposure to 0.08 parts per million.18
-------
GUIDELINES AND REPORTS 2941
The lack of data on toxic substances also means that maximum use
must be made of information from incidents involving toxic sub-
stances. Such an incident occured in Iraq early in 1972. Seed treated
with a mercurial fungicide arrived too late for planting and was
consumed directly by large numbers of people. Although the data are
limited, the number of deaths may exceed 500, with as many as 7,000
suffering some type of injury. If these very preliminary estimates turn
out to be true, Iraq's mercury poisoning incident must rank as one of
the worst environmental health disasters in history. Hopefully, infor-
mation drawn from this incident will help prevent future disasters.
Improved methods for sounding an early warning about potentially
dangerous chemicals and metals and for setting priorities for research
on toxic substances are badly needed. More adequate monitoring
data and the use of methods such as the materials balance approach
can play a vital part in filling these needs.
land use
The amount of land used for particular purposes at any given
time tells us little or nothing about the environment. Thus the con-
ceptual problem of what land use factors are significant for en-
vironmental quality is a difficult one. Changes in land use over time
can sometimes be revealing, but most often we cannot judge without
having much more information. For example, we cannot tell whether
the conversion of farmland to forest is an indicator of improving or
deteriorating environmental quality.
Another problem posed by measures of land use is the appropriate
geographical scale at which to collect data. Most changes in land use
have their primary environmental impact on the regional or local
level. National data on land use are not very informative, as Figure 6,
compiled by the Department of Agriculture, shows. The figures show
little change over the past 70 years in the proportion of the Nation's
land devoted to the four broad categories of use—cropland; grass-
land, pasture, and range; forest and woodland; and urban areas,
transportation, and parks. In 1969, the 2,266 million acres of land in
the United States (including Alaska and Hawaii) were used as fol-
lows: 430 million acres for cropland; 645 million acres for grass-
land, pasture, and range; 725 million acres for forest; 186 million
acres for urban development, roads, and other special uses; and the
remaining 280 million acres was desert, swamp, and other types of
land not usable for the other categories.19
On a national basis there has been little overall change in land
use. But the national data obscure marked changes which have oc-
curred within particular States and regions. Many areas have under-
gone rapid urbanization, there have been marked shifts from forest
to farmland in areas such as the Southern Mississippi Valley, and in
many parts of the East, farmland has been abandoned and has
reverted to scrub forest.
The Council not only examined overall land use but, with the
-------
2942
LEGAL COMPILATION—GENERAL
-------
GUIDELINES AND REPORTS
2943
CONSUMPTION-RATE
200,06
-------
2944 LEGAL COMPILATION—GENERAL
Figure 6
Land Utilization, 48 States, 1900-1969
millions of acres
2,000 -
1,500 -
1,000 •
500 •
URBAN AREAS, HIGHWAYS, PARKS AND OTHER LAND1
FOREST AND WOODLAND«
, GRASSLAND PASTURE AND RANGE"
19
CROPLAND4
00 1910 1920 1930 1940 1950 1959 1969
1. Urban and other built areas, highways, railroads, airports, parks and other land.
2. Excludes forested areas reserved for parks and other special uses.
3. Includes grassland pasture and range, private and public.
4. Cropland planted, cropland in summer fallow, soil improvement crops, and land being pre-
pared for crops and idle.
Cropland acreages prior to 1954 are for the year preceding the date of the inventory.
Source: U.S. Department of Agriculture, Economic Research Service
help of the Earth Satellite Corp., investigated particular land use
questions which have caused environmental concern. One of these
was land affected by surface mining.
Data on surface mining and surface mine reclamation have not
been collected on any systematic or regular basis by the Federal
Government. But a national survey of surface mining and its impact
on the environment was made in 1965 by the Bureau of Mines.20
Although some individual States collect data, the report is the only
detailed source of nationwide information on surface mining and
reclamation.
The Bureau of Mines survey shows that 3.2 million acres of land
had been disturbed by strip and surface mining by 1965. Goal mining
accounted for the largest single portion of this acreage—1.3 million.
Sand and gravel accounted for another 0.8 million acres, and the re-
maining 1.1 million acres were divided among mining and extraction
of clay, stone, gold, phosphate rock, iron ore, and other commodi-
ties.21 Only about a third of the land disturbed by surface mining
had been reclaimed, and almost half of this was reclaimed by nature,
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GUIDELINES AND REPORTS 2945
that is, it had remained undisturbed sufficiently long that natural
processes had healed many of the scars of the mining.
Every State had land disturbed by surface mining. But the heaviest
concentration of disturbed lands lay in the eastern part of the country,
particularly in the Appalachian coal-producing States. However, the
amount of land used for surface mining is probably increasing most
rapidly now in the Western States.
Figure 7 shows the U.S. acreage disturbed annually by coal strip-
ping over the 5-year period from 1965 to 1970. Between 1965 and
1969, there was a gradual rise in the number of acres disturbed
annually. In 1969, there was a sharp jump in the rate at which lands
were being surface mined. In fact, the increase from 75,000 to
100,000 acres of new acreage disturbed between 1969 and 1970
equaled the increase from 50,000 to 75,000 acres between 1965 and
1969. These increases were due to a shift in production processes
and increased demand for coal to generate electricity.
Although the Federal Government can draw on vast amounts of
land use data, most of the information is not well suited as an in-
dicator of environmental quality. Much work remains to be done be-
fore agencies agree on what data to collect and how to improve the
data collecting systems. New techniques may ease the latter task.
Photographs taken from high-altitude planes or satellites often can
provide much of the needed land use information on a regular basis
at a far lower cost than ground data collection. The applicability and
effectiveness of satellite photography has not yet been determined to
a degree sufficient to merit an operational earth resources satellite
system. However, several test satellites will be orbited in the next
year or two.
As the States develop implementation plans in anticipation of
national land use policy legislation,22 the requirements for land-use
data will become clearer. Identification and control of floodplains,
protection of coastal wetlands and regulation of land use in scenic
districts along the shorelines of major rivers and lakes will require
large amounts of land-use information if they are to be successful
programs.
To determine whether regionally needed development is being
blocked or unduly restricted by local governments requires an under-
standing of regional supply and demand factors, involving housing
demand studies, evaluations of local zoning, demographic analyses,
and surveys of the extent to which localities are already accommodat-
ing regional needs. And to regulate large-scale development and
areas around key growth-inducing public facilities effectively, States
will probably have to learn from their own and each other's experi-
ence with traffic generation, pollution loads, and the impact of such
facilities on surrounding areas.
There are probably three kinds of data services that the Federal
Government can furnish the States to help them cope with these
problems. First, aerial photography services and uniform mapping
procedures can be established for much of the Nation, with States
-------
2946 LEGAL COMPILATION—GENERAL
Figure 7
Trend in Area Disturbed
Annually by Coal Stripping
thousands of acres
100-
1965 1966 1967 1968 1969 1970
Source: Earth Satellite Corp., "Land Use Indicators of Environmental Quality." Report to the
Council on Environmental Quality, 1972. Based on Bureau of Mines data
drawing on relevant portions for their own use. Second., State and
local governments can cull demographic, income, housing, and land
use data from the U.S. Bureau of the Census and other agencies
which monitor economic, manufacturing, and agricultural trends.
Federal modeling efforts, such as those undertaken by the Water
Resources Council, should also prove useful. Finally, the Federal
Government can provide technical assistance so that land use data
are properly interpreted and so that States and localities can benefit
from each other's experience in land use planning and regulation.
Hard political and economic choices must be made if land develop-
ment is to lead to better environmental and social results, and concern
about getting a full range of data should not obscure these choices.
But adequate data properly analyzed are a necessary base for sound
regulatory actions, in land use as in all other fields.
wildlife
Almost everyone agrees that birds, animals, fish, and plants are
essential to environmental quality. But the development of indicators
for wildlife is an extraordinarily difficult challenge. Which of the
thousands of wildlife species are meaningful indicators of environ-
mental quality? And how should changes in the population of the
selected species be interpreted?
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GUIDELINES AND REPORTS 2947
Species of wildlife can benefit man in many ways—for recreation,
aesthetic enjoyment, food, and natural pest control. Wildlife can
also provide important scientific data and help regulate and stabilize
particular ecosystems. However, some species are also harmful; they
destroy agricultural crops, destroy or compete with beneficial or rare
wildlife species, or carry disease.
A particular species can have a strong positive value for one
purpose but slight or even negative value for another. For example,
an animal that is hunted for sport may damage agricultural crops,
or maintenance of its habitat may preclude desirable alternative land
uses. The enivornmental significance of trends in the population of a
species often is unclear. For example, a rise in the deer population
in a particular area may be caused by the abandonment of farms
and the resulting growth of scrub forest. An increase in the number
of robins or cardinals is generally considered desirable, but an in-
crease of gulls or rats indicates increased amounts of garbage.
Wildlife are a continuous early warning system which can alert
man to the first signs of danger in the environment. Death and illness
of herons, fish, shellfish, and cats preceded the deaths of over a hun-
dred humans from mercury poisoning in Minamata and Niigata
Bays in Japan. Death of seed-eating birds in Sweden warned of the
mercury problem in that country. Deaths and eggshell thinning in
hawks, pelicans, and many other birds warn of high levels of pesti-
cides. Any rapid, major change in species populations should be a
warning to search out the cause. Also, the variety of species which
exists in a given area may be a significant indicator of environmental
problems.
One wildlife measure of environmental quality is the number of
species officially classified as "endangered" by the Department of
the Interior. However, this measure has very limited utility. It is
unlikely that all rare and endangered species have equal chances
of being classified as such. Larger, more conspicuous, or better known
forms are more likely to be recognized because their status is easier
to assess. Year-to-year comparisons of the number of endangered
species will not meaningfully indicate environmental changes until
the status of virtually all rare and endangered species is established,
because until then additions to the list will simply represent recogni-
tion of additional species rather than an actual increase in the num-
ber of species endangered.
The Smithsonian Institution has recommended to the Council
that—in addition to wildlife habitats, wild and natural areas, and
certain species of fish, shellfish, crops, plants, lichens, and mosses—
28 species of birds and mammals be monitored on a regular basis.23
These species are listed in Appendix 7. The data on these species
could be combined to measure overall wildlife quality. The Smith-
sonian also suggested that data on selected managed species of wild-
life, including land and water bird and mammal species, commercial
-------
2948 LEGAL COMPILATION—GENERAL
and sport fish, and endangered species be combined to provide an
index of wildlife management effectiveness.
There has not been adequate time to determine whether the in-
dices suggested by the Smithsonian are the appropriate ones to use
to measure the environmental aspects of wildlife. Nor has there been
time to examine exactly how the indices would be computed. Some
data are available on most of the wildlife species proposed for use
in the indices. But the data are collected in a variety of forms and
vary in their degree of accuracy. A start has been made to develop
quantitative indices of wildlife, and this work will be continued during
the coming year.
toward adequate environmental indices
The Council has compiled a preliminary list, which appears in
Appendix 1 of this chapter, of those aspects of the environment which
should be measured on a regular basis. It is a "mixed bag" which
includes both aggregated indices (for wildlife, for example) and
single items of data. It ignores the interrelationships among the
separate items, although in many cases the interrelationships are the
most important things to consider. If the data are available for these
items, any combination or comparison of the items is possible.
During the coming year the Council will refine this list and
expand it to include more detailed descriptions of the indicators
and the available sources of data. Simultaneously we will work to
develop indices for the major categories (the two-digit numbers on
the list). Indices will be developed for the categories where adequate
data are available and where work on appropriate indices is most
advanced.
Indices will require not only good monitoring data but also con-
siderable judgment and scientific research to provide the knowledge
necessary to evaluate the components of an index properly. Ques-
tions such as the relative damage from various types of air pollut-
ants require more investigation and research. One of the advantages
of indices is their ability to summarize the interaction of such fac-
tors in a simple index. But this characteristic also means that the
process of developing dependable indices will be a long one. Because
new scientific data will constantly become available, the indices, once
developed, will have to be adjusted periodically.
The work on indices will not directly improve data accuracy,
comprehensiveness, and timeliness. However, it will do so indirectly
by making clear what data are needed and what gaps and overlaps
exist. The Council will continue to work with the Federal agencies
to improve their monitoring systems. EPA, the Department of the
Interior, and other agencies are making major efforts to strengthen
their environmental data collection efforts, and these efforts will
result in a larger and more reliable information base on environ-
mental quality.
-------
GUIDELINES AND REPORTS 2949
The Council also will encourage greater use of State and local
data, a valuable source of information often not adequately tapped
by the Federal Government. Common methods of data collection
and analysis by Federal, State, and local agencies would facilitate
exchange of information and add significantly to the amount of
usable information on environmental conditions.
Neither this year nor next will we be able to provide a general
statement about whether environmental quality has improved or
deteriorated. The environment encompasses too many factors to
be so easily characterized, as can be seen from some of the trends
discussed in this chapter. Air quality in urban areas appears to be
getting better, while water quality shows no strong trends, except
for nutrient levels, which are rising. Production of persistent pesti-
cides has declined, but manufacture of more acutely toxic pesticides
has increased. Overall national land use patterns show little change,
but certain regions and certain types of land use have changed
markedly.
Although we are not now able to characterize overall environ-
mental quality, we should be able to give a better indication of the
status of and trends for particular components of the environment.
The work reported in this chapter is a first step toward creating a
framework for a comprehensive and continuing system of informa-
tion on environmental quality.
-------
2950 LEGAL COMPILATION—GENERAL
footnotes
1. V. Brodine, "Running in Place," Environment 14:1 (Jan.-Feb. 1972),
p. 5.
2. For other indices which have been developed, see the Mitre Corp.,
"National Environmental Indices: Air Quality and Outdoor Recrea-
tion" (MTR 6159), April 1972, to be made available through the
National Technical Information Service.
3. The nitrogen oxides secondary standard, however, is the same as the
primary standard.
4. A list of the standards is contained in Appendix 2 to this chapter.
5. For a detailed description of the computation of MAQI, see Appendix 2,
to this chapter.
6. For a detailed description of the computation of EVI, see Appendix 3,
to this chapter.
7. For a detailed description of ORAQI, see Appendix 4 to this chapter.
Also see Oak Ridge National Laboratory, "Oak Ridge Air Quality Index"
(ORNL-NSF-EP-8),Sept. 1971.
8. Memo, Dr. William C. Nelson to Acting Director, Division of Health
Effects Research, EPA, Nov. 23, 1971.
9. See Environmental Protection Agency, The Cost of Clean Water (1972).
10. Id.
11. For a full description of the Enviro Control analysis, see Appendix 6
of this chapter.
12. See R. M. Brown et al., "A Water Quality Index—Crashing the Psy-
chological Barrier," presented at the 139th Meeting of the American
Association for the Advancement of Science, Philadelphia, Pa., Dec. 28,
1971.
13. The Federal Reports Act restricts the U.S. Tariff Commission to release
of production figures only where there are three or more producers, no
one or two of which may be predominant.
14. Stanford Research Institute, "Environmental Indicators for Pesticides"
(April 1972), p. 27.
15. See U.S. Department of Agriculture, Quantities of Pesticides Used by
Farmers in 1966 (Agricultural Economic Report No. 179), April 1970.
16. Id.
17. State of Iowa, Community Studies Program, "1970 Annual Progress Re-
port," submitted to EPA. Since only 50 percent of the doctors polled
responded, the actual number of cases must have been well over 700.
18. Oak Ridge National Laboratory, "Cadmium: The Dissipated Element"
(ORNL-NSF-E P-21) (1972, forthcoming).
19. Communication from Dr. Mel Cotner, United States Department of Agri-
culture, Economic Research Service.
20. U.S. Department of the Interior, Bureau of Mines, Surface Mining and
Our Environment: A Special Report to the Nation (1965).
21. See Appendix 8 of this chapter.
22. Fred Bosselman and David Callies, The Quiet Revolution in Land Use
Control, a report for the Council on Environmental Quality (1972).
23. Smithsonian Institution, "Environmental Indicators for Pesticides"
(April 1972).
-------
GUIDELINES AND REPORTS 2951
environmental indices—appendices
1. Checklist of Environmental Parameters 31
2. Calculation of MAQI Index 34
3. Calculation of EVI Index 39
4. Calculation of ORAQI Index 43
5. Additional Air Pollution Data for Individual Cities 44
6. Description of Enviro Control Water Pollution Analysis 44
7. Indicator Species Developed by Smithsonian Institution 47
8. Strip Mining, by Resource Extracted 48
appendix 1—preliminary checklist of environmental
paramenters
1. Underlying Factors
1.1. Population
1.1.1 Absolute size—United States and world
1.1.2 Birth rate—United States and world
1.1.3 Death rate—United States and world
1.1.4 Age composition
1.1.5 Lifespan, by sex and race
1.1.6 Immigration and emigration •
1.2. Economic development
1.2.1 GNP, absolute and per capita, by sector
1.2.2 Capital investment, by sector
1.3. Urbanization
1.3.1 Percent population in central cities and suburbs
1.3.2 Percent population, by population size of community
2. Resources
2.1. Supply and demand—renewable resources
2.1.1 Water, by region and type of use
2.1.2 Timber
2.2. Supply and demand—nonrenewable resources (United States and
world)
2.2.1 Coal
2.2.2 Oil
2.2.3 Metals
2.2.4 Phosphorous
2.2.5 Uranium
2.2.6 Other
-------
2952 LEGAL COMPILATION—GENERAL
2.3. Land
2.3.1 Amount of land available for food production
2.3.2 Amount of land used for food production
2.3.3 Amount of urbanized land
2.3.4 Strip-mined land—reclaimed and unreclaimed
2.3.5 Development in flood plains
2.3.6 Land devoted to transportation-related activities—urban and nonurban
2.3.7 Amount of wetlands, by type
2.3.8 Amount of land used for public works projects
2.3.9 Wild and natural areas
2.4. Food
2.4.1 Agricultural productivity
2.4.2 World food supply vs. demand (including caloric and protein value)
2.4.3 Fish and other ocean food harvest and reserves
2.5. Solid waste and recycling
2.5.1 Amount of municipal (residential and commercial) solid waste, by
type of waste
2.5.2 Amount of industrial solid waste, by source and type
2.5.3 Amount of agricultural solid waste, by type
2.5.4 Percent materials recycled, by type
2.6. Energy
2.6.1 Total BTUs of energy used
2.6.2 Electric power consumed
2.6.3 Mix of fuel used for energy supply
2.6.4 Productivity per energy unit consumed
3. Ecological Factors
3.1. Climate
3.1.1 Solar radiation amount, by type
3.1.2 Temperature change
3.2. Natural disasters
3.2.1 Earthquakes—property damage and human injury
3.2.2 Hurricanes and tornadoes—property damage and human injury
3.2.3 Floods—property damage and human injury
3.3. Wildlife
3.3.1 Wildlife Quality Index
3.3.2 Wildlife Management Effectiveness Index
3.3.3 Wildlife Habitat Index
3.4. Maintenance of major ecocycles
3.4.1 Nitrogen
3.4.2 Carbon
3.4.3 Other
4. Pollution
4.1. Air
4.1.1 Amount of emissions, by type and source (Major pollutants: SOZ, CO,
oxidants, NO2, hydrocarbons, suspended particulates)
4.1.2 Percent population exposed to levels above primary standards (health
index)
4.1.3 Ambient air quality (index of ambient levels for each major pollutant
and composite index for all pollutants)
-------
GUIDELINES AND REPORTS 2953
4.2. Water
4.2.1 Amount of effluents, by source, type of pollutant (Major pollutants:
BOD, COD, or TOD, dissolved oxygen, dissolved solids, suspended
solids, phosphorus, ph, salinity, oil, phenols, fecal coliform), and
type of water body used for disposal
4.2.2 Ambient water quality, by region and type of pollutant
4.2.3 Ocean dumping, amount and type
4.2.4 Number and area of lakes eutrophied
4.2.5 Percent population served by drinking water meeting standards
4.2.6 Subterranean water pollution
4.3. Radiation
4.3.1 Major radionuclides present in media
4.3.2 Average human radiation exposure
4.3.3 Number of nuclear accidents
4.4. Pesticides
4.4.1 Amounts of pesticides used, by type
4.4.2 Amount of major pesticide types in media, food, and humans
4.4.3 Injuries due to pesticides
4.5. Noise
4.5.1 Ambient noise levels, urban and non-urban
4.6. Toxic substances
4.6.1 Mercury, in media, food, and humans
4.6.2 Cadmium, in media, food, and humans
4.6.3 Other metals in media, food, and humans
4.6.4 Synthetic organic chemicals (other than pesticides) in media, food, and
humans
5. Manmade Environment
5.1. Housing
5.1.1 Percent substandard housing
5.1.2 Housing availability
5.1.3 Density per square mile
5.1.4 Neighborhood quality
5.2. Transportation
5.2.1 Journey-to-work time
5.3. Aesthetics
5.3.1 Billboards and junkyards per mile
5.3.2 Proportion of urban green space
5.4. Occupational environment
5.4.1 Work injuries
5.4.2 Workplace pollution
5.5. Recreation
5.5.1 Open space—parks, wilderness
5.5.2 Cultural facilities
5.5.3 Work/leisure time ratio
-------
2954 LEGAL COMPILATION— GENERAL
appendix 2 — calculation of maqi index*
The Mitre Air Quality Index (MAQI) is based upon the Secondary
Federal National Ambient Air Quality Standards promulgated by the En-
vironmental Protection Agency. These standards have been set to protect the
public welfare from any known or anticipated adverse effects of air pollu-
tants in the ambient air. The index is based upon a combination of pollutants
and can include as many pollutants as national standards have been estab-
lished for. The index in the text is based on sulfur dioxide, nitrogen dioxide,
and total suspended particulates. However, the explanation in this appendix
will also include factors for carbon monoxide and photochemical oxidants to
show how the index can be calculated to cover the full range of pollutants
for which standards have been set. Hydrocarbons are not covered since the
national standards include them only as a guide in devising implementation
plans to achieve the oxidants standard. The National Secondary Standards
are summarized in Table A— 1.
It is apparent from Table A— 1 that a national air quality index based on
these standards must be a retrospective one. The proposed index always uses
data for a 12-month period spanning all seasons and may be computed and re-
ported at any desired frequency. Daily index computation is unnecessary since
several of the standards refer to annual averages, which by definition include
pollutant levels in excess of the standards for many days of the year. Significant
daily index variations would tend to be infrequent. The proposed index would
depict changes which occur monthly or quarterly, using data for the most
recent 12 months in each instance.
The Mitre Air Quality Index is a combination of individual pollutant
indices each based upon one of the secondary air quality standards. This
index is computed as follows :
MAQI = V
where
I,, is an index of pollution for carbon monoxide,
I, is an index of pollution for sulfur dioxide,
IP is an index of pollution for total suspended particulates,
!„ is an index of pollution for nitrogen dioxide, and
I0 is an index of pollution for photochemical oxidants.
The MAQI is the root-sum-square value of the individual pollutant indices.
This method of index computation guarantees the MAQI value will be at
least 1 if any pollutant included in its computation exceeds the secondary
standard value. (MAQI values between 1 and 3 require inspection of the
individual components, because values in this range do not necessarily imply
that any standard is exceeded.) A MAQI value of less than 1 indicates that
all standards are being met for those pollutants included in the MAQI
computations. Because nine standards for five pollutants_are involved in com-
puting MAQI, any MAQI value greater than 3, or V9> guarantees that at
least one standard value has been exceeded. The MAQI values in this
chapter are based on only five standards for three pollutants, and thus
for these figures any MAQI value greater than 2.24 or V5, guarantees that
at least one standard has been exceeded.
•Information in this appendix Is primarily from Mitre Corp., "National En-
vironmental Indices : Air Quality and Outdoor Recreation" (MTR-6159) (April
1972).
-------
GUIDELINES AND REPORTS
2955
^ * V" ^ »X
Another reason for computing the MAQI by a root-sum-square, rather
than simple addition of the component indices, is based on an arbitrary choice
of scaling. The values of MAQI will uniformly produce numbers which are
smaller than those computed by simple summation. Furthermore, the pro-
posed method of computation compresses the numerical range of uncer-
tainty (regarding exceeding a standard) to values I to 3, rather than from
1 to 9 if simple summation were involved. The proposed computation
method is no more complex than simple addition since data processing equip-
ment would be employed.
Each of the individual pollutant indices is computed based upon the
applicable Federal standards shown in Table A-I. The formulation of each
index is further delineated below.
carbon monoxide index
The carbon monoxide index is the root-sum-square (RSS) value of
individual terms corresponding to each of the secondary standards. The RSS
value is used to ensure that the index value will be greater than 1 if either
standard value is exceeded. The index is defined as
where
CC8 is the maximum observed 8-hour concentration of carbon monoxide,
Sci is the 8-hour secondary standard value (i.e., 9 p.p.m. or 10,000 ^g./m.3)
consistent with the unit of measure of Ccs,
Cei is the maximum observed 1-hour concentration of carbon monoxide,
Sci is the 1-hour secondary standard value (i.e., 35 p.p.m. or 40,000 Mg-/m-3)
consistent with the unit of measure of Ccl, and
« is 1 if Cc, > Sei and is 0 otherwise.
For example, the maximum observed values of carbon monoxide in 1965 at
the Chicago CAMP (Continuous Air Monitoring Program) Station were
Ccs=44 p.p.m. and Cci=59 p.p.m. The corresponding carbon monoxide index
-------
2956 LEGAL COMPILATION—GENERAL
The same index for the Washington, D.C., CAMP Station in 1965 is
/,=
For Washington, Cn is less than the standard value and it was not really
necessary to square the ratio of Cca/Sca and take its square root. The index
could simply be calculated as
JT.-3Ll.67.
In a comparison of the values of /» for Chicago and Washington, it appears
that the degree of carbon monoxide pollution in Chicago is greater than in
Washington. One should be careful, however, in drawing such conclusions
without a further appraisal of all of the data available. The index is merely
an indicator of conditions and is not an absolute measure. The main reason for
this seeming disparity is the standards themselves, which are based upon a
single maximum reading and not on all data collected for a particular year.
sulfur dioxide index
The sulfur dioxide index component of the MAQI is computed in a fashion
similar to the carbon monoxide index. This index has three rather than two
terms, one for each of the Federal standards, and is given by
where
C,a is the annual arithmetic mean observed concentration of sulfur
dioxide,
Saa is the annual secondary standard value (i.e., 0.02 p.p.m. or 60 /ig./m.3)
consistent with the unit of measure of C,a,
C,24 is the maximum observed 24-hour concentration of sulfur dioxide,
S,u is the 24-hour secondary standard value (i.e., 0.1 p.p.m. or 260 ^g./m.3)
consistent with the unit of measure of C,24>
C,3 is the maximum observed 3-hour concentration of sulfur dioxide,
iS,3 is the 3-hour secondary standard value (i.e., 0.5 p.p.m. or 1300
/ig./m.3) consistent with the unit of measure of C.s,
Si is 1 if (7,24 > 5,24 and is 0 otherwise, and
Si is 1 if (7,3 > S,3 and is 0 otherwise.
The observed levels of sulfur dioxide at the Chicago CAMP Station in 1965
were
C.a=0.13 p.p.m.,
(7,24=0.55 p.p.m., and
C.3=0.94 p.p.m.
The corresponding sulfur dioxide index is
The presence of the 3-hour term in the sulfur dioxide index poses some-
thing of a problem because the majority of current air sampling sites such as
those included in the National Air Sampling Network (NASN) do not take
3-hour integrated samples. Larsen* has hypothesized, however (based upon
*R. I. Larsen. "A Mathematical Model for Relating Air Quality Measurements
to Air Quality Standards," Publication AP-89, Office of Air Programs, EPA, Re-
search Triangle Park, North Carolina, Nov. 1971.
-------
GUIDELINES AND REPORTS 2957
the assumption that the aerometric data fit his mathematical model), that
the 3-hour standard will normally not be exceeded unless a large percentage
of the 24-hour readings exceeds the 24-hour standard. An inspection of air
quality data, collected over several years at the CAMP Stations supports his
hypothesis. When 3-hour values which exceed the secondary standard are
present, the 24-hour maximum value is much larger in relation to the 24-hour
standard value and tends to mask the 3-hour contribution because of the RSS
method of index computation. The same general relationship is true of the
1-hour and 8-hour carbon monoxide index terms; the 8-hour term is dominant.
For the reasons detailed above, the sulfur dioxide index can be calculated
for NASN and local air sampling sites (which do not measure 3-hour concen-
trations of sulfur dioxide) as well as for sites that utilize continuous samplers.
The index in these cases is revised to be
Elimination of the 3-hour term in the index reduces the Chicago 1965 index
value from 8.72 to 8.51 and does not affect the value for Washington, D.C.
total suspended participates index
The index of total suspended particulates is computed as
where
CTz is the annual geometric mean* observed concentration of total sus-
pended paniculate matter,
Sva is the annual secondary standard value (i.e., 60 ng./m.3),**
CP24 is the maximum observed 24-hour concentration of total suspended
particulate matter.
Sj>24 is the 24-hour secondary standard value (i.e., 150 jug./m.3), and
S is 1 if CP24 > Sp24 and is 0 otherwise.
For the Chicago CAMP Station in 1965, 66 measurements were taken with a
Hi-Volume Sampler. The observed concentrations were
Cp0=194 ^g./m.s and
Cp24=414 Mg-/mA
The corresponding total suspended particulate index is
J =
Due to the nature of a geometric mean, a single 24-hour reading of 0 would
result in an annual geometric mean of 0. The EPA recommends that one
half of the measurement method's minimum detectable value be substituted,
in this case 0.5 Mg-/m.3, when a "zero" value occurs.
"The geometric mean Is denned as n= "
"Total suspended particulate concentrations are always measured In micro-
grams per cubic meter.
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2958 LEGAL COMPILATION— GENERAL
nitrogen dioxide index
The nitrogen dioxide index does not require the RSS technique because"
only a single annual Federal standard has been promulgated. The index is
where
_ Cna
»~~a~
Ono
CM is the annual arithmetic mean observed concentration of nitrogen
dioxide, and
SM is the annual secondary standard value (i.e., 0.05 p.p.m. or 100
pg./m.3) consistent with the unit of measure of Cno.
For the Chicago CAMP Station in 1965, the observed annual average
concentration of nitrogen dioxide was
Cna=0.04 p.p.m.
and the index is
Considerable controversy has centered around the measurement of nitrogen
dioxide concentrations in the ambient air. The annual averages obtained
by first averaging continuous readings of nitrogen dioxide, obtained by the
Greiss-Saltzman colorimetric method, to 24-hour averages and then obtain-
ing the annual average from these daily averages tends to underestimate
the true levels of ambient nitrogen dioxide concentration. The 24-hour
integrated readings obtained by the Jacobs-Hochheiser method, which is
subject to low collection efficiencies and nitric oxide interference, may over-
estimate the true concentration. Nevertheless, the index can still be a useful
indicator of changing trends in the ambient nitrogen dioxide levels at a
particular locality over time.
photochemical oxidants index
The index of photochemical oxidants is computed in a manner similar to
the nitrogen dioxide index. A single standard value is used as the basis of
the index which is
where
C01 is the maximum observed 1 -hour concentration of photochemical oxi-
dants, and
S0i is tne 1-hour secondary standard value (i.e., 0.08 p.p.m. or 160
A»g./m.z) consistent with the unit of measure of C01.
In 1965, the Chicago CAMP Station registered a maximum 1-hour concen-
tration of photochemical, oxidants of
Col=0.13 p.p.m.
The index for that year and station is
'-«-'*.
The photochemical oxidant data required for the index computation must be
derived from a continuous sampler in order to obtain hourly readings. Most of
the NASN and local air quality sampling sites do not presently measure this
pollutant at this frequency.
combined pollutant index
In order to illustrate the calculation of the Mitre Air Quality Index, the in-
dividual pollutant indices derived from the 1965 Chicago CAMP Station data
will be employed. The corresponding value is
-------
GUIDELINES AND REPORTS 2959
MAQI=V(5.17)'+ (8.72)2+ (4.25)2+ (.8)a+ (1.62)' or
MAQI = 11.14.
If each of the individual pollutants had been at exactly the standard
values, the MAQI would have been equal to V 9 or 3. This value is arrived
at by noting that nine standard values are defined, two for carbon monoxide,
three for sulfur dioxide, two for total suspended particulates, and one each for
nitrogen dioxide and photochemical oxidants. Hence, any MAQI value
in excess of 3 guarantees that at least one pollutant component has exceeded
the standards. Interpretation of this index, as of any aggregate index,
should be in terms of its relative (rather than absolute) magnitude with
respect to a national or regional value of the index. Cost of living and
unemployment indices for a given location, for example, are frequently inter-
preted in this manner. It is apparent that the ambient air quality measured
by the Chicago CAMP Station in 1965 was worse than the Federal Second-
ary Standard Values. It is not apparent, by inspection of only the MAQI
value, which standards were exceeded. It is recommended, therefore, that
each of the individual pollutant indices be considered together with the
MAQI in order to obtain a true picture of the actual situation.
appendix 3—calculation of evi index*
Because extreme high air pollution values are most directly related to per-
sonal comfort and well being, and affect plants, animals, and property, the
number or percentage of extreme values provides a meaningful measure of
the ambient air quality. These values in themselves, however, do not depict
the complete situation. It is still highly desirable to know the degree to
which the extreme values exceed the secondary air quality standards. For
these reasons, an Extreme Value Index (EVI) was developed for use in
conjunction with the MAQI values. The EVI is an accumulation of the ratio
of the extreme values to the standard values for each pollutant. The extreme
value indices for individual pollutants are combined using the root-sum-
square method. Only those pollutants are included for which secondary
"maximum values not to be exceeded more than once per year" are defined.
The Extreme Value Index is given by
where
Ec is an extreme value index for carbon monoxide,
E, is an extreme value index for sulfur dioxide,
Ep is an extreme value index for total suspended particulates, and
E0 is an extreme value index for photochemical oxidants.
carbon monoxide extreme value index
The carbon monoxide extreme value index is the root-sum-square of the
accumulated extreme values divided by the secondary standard values. The
index is defined as
•Information In this appendix Is primarily from Mitre Corp., "National En-
vironmental Indices: Air Quality and Outdoor Recreation" (MTR 6159) (April
1972).
-------
2960 LEGAL COMPILATION—GENERAL
where
A^ is the accumulation of values of those observed 8-hour concentrations
which exceed the secondary standard and is expressed mathemati-
cally as
8,
where
8,- is 1 if (Cci)i> Scs and is 0 otherwise,
5C8 is the 8-hour secondary standard value (i.e., 9 p.p.m. or 10,000 jug./m.3)
consistent with the unit of measure of the (C<;8),- values,
A el is the accumulation of values of those observed 1-hour concentrations
which exceed the secondary standard value and is expressed as
8j is 1 if (Ccl)i > Sei and is 0 otherwise, and
Sci is the 1-hour secondary standard value (i.e., 35 p.p.m. or 40,000 /jg./m.3)
consistent with the unit of measure of the (Ccl),- values.
At the Chicago CAMP Station in 1965, about 1 percent of the measured 1 -hour
carbon monoxide concentrations and 93.4 percent of the measured 8-hour con-
centrations exceeded the respective secondary standards. From the raw EPA
data, the accumulations of these values are
Aci= 16,210 p.p.m. and
Acf= 2,893 p.p.m.
The carbon monoxide extreme value index for Chicago in 1965 is
The same index for the Washington, D.C., CAMP Station in 1965 is
At the Washington, D.C., CAMP Station in 1965, only 1.7 percent of the
observed 8-hour concentrations of carbon monoxide and none of the observed
1-hour concentrations exceeded the secondary standards. Although the 1965
values of the carbon monoxide MAQI for Chicago and Washington were
5.17 and 1.67 respectively, a ratio of about 3 to 1, the extreme value indices
show about a hundredfold difference in ratio. The percentage of observed
values exceeding the standard also helps to depict the situation without
having to inspect all of the available data. An analysis of available CAMP
Station data reveals that the carbon monoxide 1-hour secondary standard
is rarely exceeded even though the 8-hour standard is exceeded as much as
93 percent at the time. As an option, this carbon monoxide extreme value
index could be calculated strictly from the 8-hour concentration values as
-------
GUIDELINES AND REPORTS 2961
without undue disortion of the true situation. For example, the Chicago
CAMP Station data yield a value of Ec = 1801.11 when compared with the
previous value of 1803.01.
sulfur dioxide extreme value index
The sulfur dioxide extreme value index is computed in the same manner
as the carbon monoxide extreme value index. This index also includes two
terms, one for each of the secondary standards which are maximum values not
to be exceeded more than once per year. No term is included for the annual
standard. The index is computed as
where
^4,24 is the accumulation of those observed 24-hour concentrations which
exceed the secondary standard value and is expressed as
-A .24— >;g.(C.24)i
i
where
Sf is 1 if (C,24);> S,M and is 0 otherwise,
S.24 is the 24-hour secondary standard value (i.e., 0.1 p.p.m. or 260 /*g./m.3)
consistent with the unit of measure of the (C^u)t values,
A,j is the accumulation of those observed 3-hour concentrations which
exceed the secondary standard value and is expressed mathematically
where
5,- is 1 if (0,3) j> 5,3 and is 0 otherwise, and
5.3 is the 3-hour secondary standard value (i.e., 0.5 p.p.m. or 1300 Mg/m- )
consistent with the unit of measure of the (€,3), values.
At the Chicago CAMP site in 1965, the observed sulfur dioxide concentrations
resulted in accumulated values of
^4,24=37.52 p.p.m. and
,4,3=38.63 p.p.m.
where 49.9 percent of the 24-hour values and 2.5 percent of the 3-hour values
exceeded the secondary standards. The index for the Chicago CAMP Station
in 1965 is
An inspection of CAMP sulfur dioxide data suggests that the 3-hbur stand-
ard is rarely exceeded and, when it is, the contribution of the 3-hour extreme
values to the sulfur dioxide extreme value index is negligible. The index, there-
fore, could optionally be calculated as
E =^?-4.
-------
2962 LEGAL COMPILATION — GENERAL
total suspended participates extreme value index
A secondary standard single maximum value not to be exceeded more than
once per year is defined for total suspended particulates. The total suspended
particulates extreme value index has but one term; no annual term is in-
cluded. This index is computed as
~s —
Oj>24
where
A pit is the accumulation of values of those observed 24-hour concentrations
which exceed the secondary standard value and is given by
where
Si is 1 if (CpM)i>iSj»24 and is 0 otherwise, and
Sj>u is the 24-hour secondary standard value (i.e., 150 /ig./m.3).
The Chicago CAMP data for 1965 indicate that 66 Hi-Volume Sampler 24-
hour measurements were taken. Of these, approximately 74.2 percent exceeded
the secondary standard value. The observed accumulated total suspended
particulates concentrations in excess of the 24-hour standard for 1965 at the
Chicago CAMP Station were
The 1965 Chicago CAMP Station data result in an index of
photochemical oxidants extreme value index
This index, like the total suspended particulates index, consists of a single
term. The index is calculated as
EI Aol
& a — ~S~
where
A0\ is the accumulation of values of the observed 1-hour concentrations
which exceed the secondary standard value and is expressed as
where
St is 1 if (COI).-> S0i and is 0 otherwise, and
S0i is the 1-hour secondary standard value (i.e., 0.08 p.p.m. or 160 fig./3)
consistent with the unit of measure of the (C0\), values.
At the Chicago CAMP Station in 1965, 1.8 percent of the observed 1-hour
concentrations of photochemical oxidants exceeded the secondary standard.
The accumulation of these values was
A,,i = 9A5 p.p.m.
-------
GUIDELINES AND REPORTS 2963
The index value is
Bo=^= 118.12.
combined pollutant extreme value index
The individual pollutant extreme value indices are here combined and EVI
calculated for the Chicago CAMP Station in order to illustrate the method of
computation. The EVI is
EVI=V(1803.01)2+(383.07)2+(76.90)2
EVI= 1848.64.
Although this index tends to depict the degree to which the secondary
standards have been exceeded, it is probably most useful as an indicator of
the trend over time of the air quality in a particular locality.
A characteristic of the EVI is its tendency to increase in magnitude as the
number of observations in excess of standards increases. This growth of the
index value is desirable. The index truly depicts the ambient air quality only
if observations are made for all periods of interest (i.e., 1-hour, 3-hour, 8-hour,
and 24-hour) during the year for which secondary standards are defined.
Trend analyses using EVI values based upon differing numbers of observa-
tions may be inadequate and even misleading. Further research is required to
develop statistical techniques for adjusting the index values to compensate for
differing numbers of observations.
The EVI and its component indices always indicate that all standards are
not being attained if the index values are greater than zero. The index value
will always be at least 1 if any standard based upon a "maximum value not
to be exceeded more than once per year" is surpassed.
appendix A — calculation of oraqi index*
The Oak Ridge Air Quality Index is designed for use with all five of the
major pollutants recognized by EPA, but has been modified for use in this
report. It is based on the following formula:
- o noV^ ( Concentration of pollutant i
-
The concentration of the pollutants is based on the annual mean as
measured by the EPA NASN network. These are the same data on which the
MAQI was based.
The EPA standards used in the calculation were the EPA secondary
standards normalized to a 24-hour average basis. For SO*, the standard used
was 0.10 p.p.m.; for NO2, 0.20 p.p.m. ; and for particulates, 150 micrograms/
cubic meter.
The coefficient and exponent values in the ORAQI formula mathematically
adjust the ORAQI value so that a value of 10 describes the condition of
naturally occurring unpolluted air. A value of 100 is the equivalent of all
pollutant concentrations reaching the federally established standards.
•Information In this appendix Is primarily from a communication from Oak
Ridge National Laboratory, Oak Ridge, Tenn.
-------
2964
LEGAL COMPILATION—GENERAL
9ft
ORAQI
Cities
Ratio 61 annual wesfrt to EPA
primary standards
SO*
T8P
NO*
^ *»*
"
246
181
7,3« us
BALTIMORE
1,40
1.64
«2,93
&».
6.95
islis
127
, 117
114
1*07
.79
.68
1,31
1.51
1,78
IM
1.80
BIRMINGHAM
16.13
135
70
.21
.18
.2.44
2,16
2,07
2.46
$.78
1.10
1.13
1.O7
47$
appendix 6—description of enviro control water
pollution analysis
There are several major problems in using existing water quality measure-
ments for trend assessment. First, only periods of record that are relatively
short (in a hydrologic sense, i.e., less than 10 years) are available in any
quantity if one is interested in national coverage. Second, the data are gen-
*Information in this appendix is primarily from Enviro Control, Inc. "National
Assessment of Trends in Water Quality" (1972).
-------
GUIDELINES AND REPORTS
2965
erally not sampled at fixed intervals, nor are the parameters sampled constant
within and between stations. Third, the basic data at a station show a typical
spread of one order of magnitude in pollutant concentration and two orders
of magnitude in flow. If one uses only the pollutant concentration data,
uncorrected for flow, it will be unclear whether changes are due to variations
in flow or in pollution emissions. Finally, the data are, in general, non-
Gaussian, i.e., they do not follow the normal statistical bell-shaped curve of
distribution.
The Enviro Control analysis attempts to deal with these problems by using
the following method:
a. Stations are selected on adequate coverage of key parameters, adequate
sample size for each parameter, and locations of some interest nationally, e.g.,
major rivers or their tributaries.
b. The stations are categorized approximately by the drainage areas they
represent, i.e., little effect of man, mostly agricultural, dense population and
only light industry, dense population with heavy industrial concentrations.
c. For each station and each water quality variable of interest, the con-
centration versus flow function and its uncertainty for a number of time
periods are estimated. Figure A-l shows the nonparametric approach used for
the basic estimation, which consists of categorizing pollutant readings (plotted
on log-log paper) into classes of flow levels (e.g., 3 classes per order of
magnitude), taking the median pollutant concentration in each class, then
fitting a function (not necessarily straight line) throueh the resultant medians.
Figure A-1
Estimation of Concentration vs.
Flow Function
(Example = Willamette River, Oregon, Quality Readings
-1966 to 1968)
total DO4—PPB
500-
50-
Individual Quality
Reading
ISth
10 100 1000
flow in cubic feet per second
10,000
-------
2966
LEGAL COMPILATION—GENERAL
To analyze variability, upper and lower 15th percentiles are also estimated in
each flow category, as seen in the dashed lines of Figure A-l. Finally, concen-
tration versus flow functions are compared for succeeding time periods to
establish percentage change in concentration per unit times high, and low flow,
as shown in Figure A-2. The percentage change is, in general, different for
each of these points.
This basic method permits a number of investigations of interest beyond
simple time trends:
a. The method is quite powerful for detecting differences before and
after major events such as construction, abatement of a pollution source,
etc. In this case, the C versus Q functions are fitted for the before and
after periods, rather than arbitrary 2- or 3-year blocks of time.
b. Where stations measure related variables, e.g., BOD and COD, the
method will determine which one is a more sensitive trend indicator.
c. By iterating the method for decreasing sample sizes (or sampling fre-
quencies), minimum frequencies to achieve given levels of trend detection
can be established.
d. Of considerable interest is the analysis of trends in the upper 15th per-
centile ot pollutant concentrations, rather than medians (where sufficient
sample sizes are available). Such trends represent percent exceedances of
given levels of pollution concentrations which are probably of even greater
interest than median performance.
Figure A-2
Quality Time Trends at
Low and Median Flows
(Example = Willamette River, Oregon)
total DO,—PPB
500
50- l&
10 100 1000
flow in cubic feet per second
10,000
-------
GUIDELINES AND REPORTS 2967
appendix 7—indicator species of wildlife
c, - Environmental aspects of which species
bpecies: is indicative
California Condor Aesthetic quality, endangered species
management.
Golden Eagle Chemical contamination, aesthetic quality.
Bald Eagle Chemical contamination, aesthetic quality.
Osprey Chemical contamination.
Herring Gull Chemical contamination, garbage and filth
contamination.
Robin Chemical contamination, aesthetic quality.
Bluebird Aesthetic quality.
Cardinal Aesthetic quality.
Mockingbird Aesthetic quality.
Starling Garbage and filth contamination, crop
damage, urban degradation.
Red-winged Blackbird Crop damage.
Cowbird Crop damage.
Common Crackle Crop damage.
Domestic Pigeon Garbage and filth contamination, urban
degradation.
Mallard duck Recreation, wildlife management effec-
tiveness.
Redhead duck Recreation, wildlife management effec-
tiveness.
Canvasback duck Recreation, wildlife management effec-
tiveness.
Canada goose Recreation, wildlife management effec-
tiveness.
Mourning dove Chemical contamination, recreation, wild-
life management effectiveness.
Woodcock Chemical contamination, recreation, wild-
life management effectiveness.
Polar bear Aesthetic quality, endangered species
management.
Norway rat Garbage and filth contamination, crop
damage, urban degradation.
Cave bats Chemical contamination.
Prong horned antelope Aesthetic quality, recreation, wildlife
management.
Northern fur seal Wildlife management effectiveness, endan-
gered species management.
Sea otter Aesthetic quality, wildlife management
effectiveness.
Beaver Aesthetic quality, wildlife management
effectiveness.
Alligator Aesthetic quality, endangered species
management.
Source: Smithsonian Institution, "Development of a Continuing Program
to Provide Indicators and Indices of Wildlife and the Natural Environment"
(April 1972).
-------
2968
LEGAL COMPILATION—GENERAL
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JNLI 'I«ili'
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-------
GUIDELINES AND REPORTS
2969
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-------
2970
LEGAL COMPILATION—GENERAL
-------
GUIDELINES AND REPORTS 2971
forecasting
Throughout history man has tried to forecast the future. Although
the techniques have varied—astrology, consultation with oracles,
modern day "think-tanks"—man has had a continuing desire to see
beyond the present.
The purpose of this chapter is threefold. First, it describes
the need for forecasts of current and foreseeable trends in the human
environment. Second, it illustrates the complexity and difficulty of
making such forecasts. Finally, it outlines some of the major fac-
tors that must be considered in making forecasts of environmental
conditions.
the importance of forecasting
Our power to build and destroy has become almost limitless. The
complexity of our technology and institutions has generated decisions
with consequences often not apparent for many years. Given this
power and complexity, predicting the future of modern society has
become a very serious and urgent business. The need to forecast has
been obvious for many years in managing our defense forces. Many
large industrial corporations must plan 5 or 10 years ahead in order
to survive. Throughout society, there is a growing need to turn from
management by reaction to management by anticipation of prob-
lems.1 This anticipatory approach to management requires a sub-
stantial amount of forecasting.
-------
2972 LEGAL COMPILATION—GENERAL
The techniques for forecasting are evolving, and a number of ex-
amples are well known, although we are still at a very primitive stage
with respect to developing adequate forecasting models. The Year
2000, written by Herman Kahn and Anthony Wiener, presents a
wide range of possible future scenarios.2 Almost 20 years ago, Harri-
son Brown, in The Challenge of Man's Future, discussed the avail-
ability of resources in relation to population growth and technology.3
Resources and Man, a projection of the carrying capacity of the earth,
was prepared by the Committee on Resources and Man of the Na-
tional Academy of Sciences in 1969.4 The work of the Commission on
the Year 2000 is another well-known effort dealing with the future.5
A large number of Federal agencies make projections on matters
within their jurisdiction. The Bureau of Mines projects the availa-
bility of minerals, and the Departments of Labor and Commerce
make a wide variety of economic and demographic projections—to
cite just a few examples. Although these projections are highly useful,
most of them are limited in scope. Even with respect to their particu-
lar subject, they take into account only a limited range of factors.
The interrelationships which may exist among the different projec-
tions often are not considered, and yet man's quality of life in the
future will be influenced by many interrelated factors which should
be taken into account. However, the number of factors and the
importance and complexity of their interaction make the forecasting
of future trends very difficult.
Two studies have been released recently that provide some first
halting steps in interrelating the many factors that ultimately deter-
mine future conditions. One of these studies was conducted by re-
searchers at the Massachusetts Institute of Technology for a group
of industrialists and planners known as The Club of Rome.6 Their
report predicted that
if the present growth trends in world population, industrialization, pollu-
tion, food production, and resource depletion continue unchanged, the limits
of growth on this planet will be reached sometime within the next 100 years.
The most probable result will be a rather sudden and uncontrollable decline
in both population and industrial capacity.7
The second study is the report of the Commission on Population
Growth and the American Future.8 The Commission covered a wide
range of subjects but stressed that "There is hardly any social prob-
lem confronting this Nation whose solution would be easier if our
population were larger" and that a stable population, rather than
having any harmful effects, would help solve many public problems.9
Both of these reports are pioneering in the degree to which they
attempt to deal with a large number of interactions relating to
environmental forecasting. But there are major limitations to both,
particularly the Club of Rome study, which make a number of
debatable assumptions about the relevant factors and their
interrelationships.
-------
GUIDELINES AND REPORTS 2973
the club of rome study
The Club of Rome report is based on a computer model of the
interactions among five basic factors—population, food availability,
capital investment and depreciation, pollution, and resource availa-
bility. Starting from an aggregate description of the world in terms
of these five factors, the model traces for about 100 years the impli-
cations of the interactions of these factors.
The key factor influencing the behavior of the model is the assumed
exponential growth of population, pollution, and industrialization
as opposed to the assumed linear growth of the availability of food
and resources.10 The Club of Rome model projects that, if current
policies are continued, there will be a disastrous future caused either
by the exponential increase in pollution or the failure of resources
and food supply to keep pace with population and economic growth.
The Club of Rome model is very simplified and does not
adequately describe at least two key variables—technological develop-
ment and price changes. The model, in effect, assumes that the prob-
lems grow exponentially while our ability to deal with them grows
linearly. Historically, technology has been developed to increase food
supply, expand industrial production, and meet other human needs.
The economic system has encouraged new methods to extract re-
sources, encouraged substitution for scarce materials, and otherwise
greatly expanded our resource base. Nevertheless, technology has
not been able to solve all of our problems and has aggravated or
created others. There is no certainty that technology will be able to
keep pace with all of the wide range of problems that lie ahead.
There is a great need to improve our ability to predict the pace and
direction of technological innovation and adoption. This would en-
able us to identify problem areas in which technology is not likely to
keep pace with the increase in the magnitude of the problem and to
take appropriate steps to encourage technological development in
these areas.
report of the commission on population growth and the
american future
The Population Commission report concludes that no substantial
benefits will come from the continued growth of U.S. population.
The Commission's summary of its findings states that
The Commission believes that the gradual stabilization of population—
bringing births into balance with deaths—would contribute significantly to
the Nation's ability to solve its problems, although such problems will not be
solved by population stabilization alone. It would, however, enable our
society to shift its focus increasingly from quantity to quality.11
The Commission also finds that population stabilization would
reap important economic benefits. The question of population growth
will be discussed in more detail later in this chapter.
-------
2974 LEGAL COMPILATION—GENERAL
the difficulties of forecasting environmental trends
Not only is predicting the interrelated effects of population
changes, economic development, new technology, resource availa-
bility, and social and political considerations difficult, but our ability
to foresee future developments is handicapped by the indirect (sec-
ondary, tertiary, etc.) effects generated by a particular change.
These indirect effects and the time lags that frequently occur between
action and effect contribute substantially to making future fore-
casting both difficult and necessary. Also, periods of rapid change
create a special need for long-term forecasting because during such
periods short-term forecasts are likely to be very deceptive.
secondary effects and time lags
The most important effects of a given action often are not antici-
pated at the time the action is taken. The classic example was the
advent of the automobile. The primary effect was to increase the
speed, convenience, and availability of travel. However, the unin-
tended and unanticipated consequences—the indirect effects—in-
cluded changing the pattern of urban growth, altering the nature of
the economy, and markedly influencing such basic social patterns as
parent-child relationships. It was not foreseen that the automobile
would aggravate problems of economic and racial separation by
concentrating urban growth in the suburbs, that automobile air
pollution would become a health problem, or that deaths on the
highway would outnumber deaths in major wars. In fact, the indirect
effects of automotive technology have probably had more impact
on the society than has the direct effect of increasing the speed of
travel. In the absence of knowledge, or at least intelligent predictions
of such effects, neither policymakers nor the public can be aware
that problems may arise.
The use of heavy metals and some synthetic organic chemicals
presents similar problems. These materials are being used commer-
cially in ever increasing amounts. The metals do not degrade, and
thus when we discover that serious adverse effects may result from
changing the location of a mineral through commercial use, such
as taking mercury from the ground and putting it in the water, it
is often too late to take effective control action. Mercury deposited
in water is converted by microbes into highly toxic methylmercury
which can then enter the food chain primarily through fish. It is
estimated that at the current rate of microbial action, the supply of
mercury now at the bottom of Lake St. Glair, Mich., will continue
to be absorbed into the food chain for several thousand years.12
There are currently no techniques available to prevent this cycle,
although a number are under study.
Some synthetic organic chemicals can be quite persistent in the
environment, and we know even less about their potential adverse
effects than we do about the effects of heavy metals. Thus marketing
and using these chemicals today may have consequences which are
-------
GUIDELINES AND REPORTS 2975
later discovered to be undesirable but which are irreversible in the
short run. The classic case is DDT. It will take many years to rid
the environment of DDT even if all use of the chemical were
stopped immediately. The same is true of PCB's (polychlorinated
biphenyls), a type of chemical with known toxic effects. One can
construct a scenario in which man looses upon himself a substance
which has very damaging effects but for which control measures are
unavailable. Thus prediction and assessment of the future effects of
currently proposed technologies may be a matter of survival.
We are beginning to realize our dependence on the intricate web
of nature of which we are part. We have discovered that man's
continued existence depends on the functions of microscopic bac-
teria and fungi and on the grand natural cycles which govern the
flow of the major elements through the environment. If the intricate
web is somehow damaged by man—through release of a chemical
substance, overpopulation, changes in land use, or excess pollution,
for example—it may be difficult or impossible to repair the injury.
deceptiveness of short-term projections
Everyone who keeps an appointment calendar or who gets up in
the morning and ponders what he has to do that day is engaged
in trying to forecast the future, albeit a short-term future. So too,
policymakers inevitably must engage in future forecasting. Every
new policy proposal is predicated on some implicit or explicit model
of the future. For example, agricultural policy is based on assump-
tions about the future supply and demand for food, the anticipated
reponse of farmers to policy changes, the future availability of fer-
tilizers and new seed varieties, and numerous other factors. However,
in shaping policy, how far into the future we project may be critical.
Forecasts which take into account only the next 2, 5 or 10 years
may be misleading.
Short-term forecasts may be particularly misleading when they
examine phenomena subject to exponential growth. For example,
Figure 1 shows the past and predicted growth of world population.
A consideration of international policy in 1940, based only on the
accurate prediction that population would grow by about 220 mil-
lion in the next 10 years, would have been misleading because
population increased 475 million over the following 10 years, and
600 million over the 10 years after that.
This point is illustrated dramatically by a riddle in the Club
of Rome report:
Suppose you own a pond on which a water lily is growing. The lily plant
doubles in size each day. If the lily were allowed to grow unchecked, it
would completely cover the pond in 30 days, choking off the other forms
of life in the water. ,For a long time the lily plant seems small, and so you
decide not to worry about cutting it back until it covers half the pond. On
what day will that be? On the 29th day, of course. You have 1 day to save
your pond.M
-------
2976
LEGAL COMPILATION—GENERAL
The press of immediate problems sometimes forces policymakers
to behave like the owner of the lily pond. Rather than anticipating
problems, they react to them after the problems have become more
difficult and alternative solutions are more limited or of reduced
effectiveness. The lack of long-range forecasts reinforces this tend-
ency, which is a dangerous one, because by the time society is riding
up the steep side of an exponential curve and the problem has be-
come obvious, it may be too late to take action in the most effective
and efficient manner.
Figure 1
World and U.S. Populations, 1650-2000
World in billions
U.S. in hundreds of millions
1650
1700
1750
1800
1850
1900
1950
2000
Sources: U.S. Department of Commerce, Bureau of the Census, Historical Statistics of the
United states, Colonial Times to 1957; Statistical Abstract of the United States 1970; and
Population Estimates Projections (Nov. 1971). Also, W. S. and E. S. Woytinsky, World Population
and Production, Trends and Outlooks (1953) p. 34 and United Nations Dept. of Economic &
Social Affairs, Growth of the World's Urban and Rural Population 1920-2000 (1969) p 56
-------
GUIDELINES AND REPORTS 2977
While there is a need for long-range forecasting, the further into
the future we attempt to predict, the more inaccurate the predictions
are likely to be. Also, resources committed to avert future problems
are resources that cannot be used to cope with current or immediate
problems. If we were to reduce the production rates of certain
heavily polluting industries to avert a future pollution crisis, we
would lose the benefit of the added production even though everyone
agreed that the loss was worthwhile. Although such factors are
important and should be explicitly considered, they do not negate
the pressing need to try to anticipate future events.
The need to forecast the future and the difficulty of doing so suc-
cessfully can be illustrated by examining some of the basic forces
that will determine future environmental conditions. We have sepa-
rated these forces into what we loosely call "physical forces," tech-
nology, and social and economic factors.
physical forces influencing future environmental
conditions
The physical factors—population, food supply, resources, industrial
growth, and pollution—are all forces that will influence future en-
vironmental conditions. The nature of these forces and some of
their interrelationships are examined below.
population
All of the elements discussed in the previous section—time lag,
irreversibility, and deceptiveness of short-term data—are strikingly
illustrated by the rate of population growth. The time lag results
from the children who will be produced in the future by today's chil-
dren. The consequences are succinctly summarized in the finding of
the Commission on Population Growth and the American Future
that "even if immigration from abroad ceased and couples had only
two children on the average—just enough to replace themselves—our
population would continue to grow for about 70 years." 14 At that
time the U.S. population would be about one-third larger than it is
now. In other words, because of the current size and age composition
of the population, there is a minimum time lag of 70 years between
initiating a stable population policy and the actual achievement of a
stable population level.
The size of a nation's total population is not literally irreversible.
Population could be reduced by war, famine, or disease. But given
the undesirability of that trilogy, the level of population is largely
irreversible when viewed from a public policy standpoint. Small de-
clines may take place due to natural decreases in birth rates, but there
are no examples of a nation experiencing marked declines in overall
population because of lowered birth rates.
The misleading nature of short-term data on population can be
seen in Figure 1. The exponential nature of population growth can
produce massive increases in the absolute number of people added
to the world in a very short period of time. It took thousands of years
-------
2978 LEGAL COMPILATION—GENERAL
for world population to reach the one billion mark, but only about
80 years to add the second billion. At current rates of growth, the
present world population of 3.7 billion will reach 4.7 billion in less
than 15 years.15
Long-term population projections can also be deceptive because of
the difficulty of making long-term forecasts. Changes in societal
values, government policies, and other factors which are difficult to
predict may strongly influence the rate of future population growth.
The long-term projections are often based on short-term trends. This
practice can lead to large forecasting errors, as Figure 2 shows.
The current rate of world population growth poses the basic issue
of rapidly accelerating demand pressing on the limits of a finite planet.
But with population, as with so many of the world's basic problems,
the planetary distribution of difficulties is very uneven. The popula-
tion problem in Bangladesh or India differs sharply in degree and
impact from the population problem in the United States. The
world ecology is overlaid and at the present time largely submerged
by political considerations. One of the key uncertainties of the future
is the extent to which national boundaries will continue to serve as
Figure 2
Predictions of the Annual Number
of Births in England and Wales
ands
1950 1960 1970 1980 1990 2000 2010
Source: Maddox, John, "Problems of Predicting Population" Nature 236:270
-------
GUIDELINES AND REPORTS
2979
barriers for maintaining the present uneven distribution of problems
and resources.
Population distribution within nations is also a critical factor. Both
the developed and less-developed nations have experienced a major
and continuing shift of population from rural to urban locations.
The projected future continuation of this shift in the United States
is illustrated by the data in Table 1.
The overall implications of urbanization are complex. It is often
in urban areas that the most acute social and physical problems exist.
Also, pressures on open space and public facilities and the necessity
for very stringent local pollution controls are sure to accompany
further urbanization. Nonetheless, at least up to a point, there are in-
creased economic opportunities and economies of scale to be achieved
through urbanization.
Much of the debate about urbanization has centered on the ques-
tion of density—usually meaning density of resident population. In
the United States, national population density is increasing. But in
many of the largest cities, the areas of highest residential density,
the resident population is decreasing. Resident, or nighttime, density,
however, tells only a part of the story. Daytime, or employee, density
is also critical to understanding the implications of urbanization.
There are large and growing numbers of people who daily commute
long distances to jobs in the central cities. The economic and physi-
cal forces that produce dense concentrations of jobs, and the re-
sulting commuting, have many environmental implications.
U.S. Metropolitan Areal
population
j%e census.".
•Serfm ft »^j*f|fsi*'> '•'.-* -
. • 1980 ^.;"tr";>"'''::
1990
2000
; 11S,400
_,~pj|.t'ftf.' .1 144,262
- 234.020
: 182,530 '-
aooo
-: viiWt*iif
66
:",^
:ss'
; 77.
m
~w
•' ' 'Series B and E projections of the U.S. Bureau of the Census, U.S. Department
• of Commerce. Series B assumes 3.10 children per woman upon completion of
'. childbearing. Swri«s8'«»5un»*s2.lff^|fJi4*,;Pp-P(™!«i>t-' '=•" Y>i,; --•'•'.'/c ';''-'» '' -'
i f%t»lail«j« Wojeetfohs}*
-------
2980 LEGAL COMPILATION—GENERAL
Attempts to stem the tide of urbanization in European nations
have met with mixed success, at best. In the United States there is
a Federal policy to slow down the inflow of population into large
metropolitan areas.16 But the difficulty of successfully pursuing such
a policy is illustrated by the projections in Table 1, which show that
population growth will increasingly be concentrated in metropolitan
areas. The Population Commission estimates that the maximum pro-
jected population increase of growth centers outside urban regionslr
will be 11 million between 1970 and 2000, compared to an estimated
total U.S. population increase of 62-117 million.18 The same study
concludes that the large urban regions "will be called on to accom-
modate virtually all of the Nation's future population growth." I9
This projected pattern of urbanization obviously will impact heavily
on the quality and nature of life in the U.S. Industrial activity, trans-
portation, and the like will be centered in large, growing metropoli-
tan areas. The encroachment of development on the countryside will
make it extremely difficult to preserve areas of critical environmental
concern, such as wetlands, flood plains, and scenic areas. Given the
environmental and other implications of urban growth patterns, and
the length of time required to change such patterns, it is essential
that we try to anticipate the problems of urbanization and deal with
them before they become intractable.
food supply
The most obvious limit on population growth is food supply. Some
projections, such as the one in Figure 3, show that the world's supply
of arable land and therefore of food will be inadequate to support
future population growth.
The calculation of food supply versus population at first glance
may seem straightforward. The amount of arable land does not
change drastically and the amount of food necessary to feed a person
adequately does not change at all. However, this ignores the influence
of technology.
Developments in fertilizers, pesticides, and high-yield seed strains;
mechanization; and improved management techniques have in-
creased the amount of food that can be produced on an acre of land.
This increase for the United States is shown in Figure 4. A similar in-
crease has occurred in many countries throughout the world. The
total acreage used for farming in the United States has diminished
steadily in the past 20 years and farming acreage in 1970 was less than
it was in 1945, although population has greatly increased during the
same period.20 Thus in the United States it is clear that during the
past two decades advances in agricultural technology have outstrip-
ped population growth.
If the current trends continue, the availability of food will increase
throughout the world. But there is good reason to believe that current
trends might not continue, or at least that the growth of food produc-
tion may not be so rapid in the future—though there is still no imme-
-------
GUIDELINES AND REPORTS
Figure 3
World Supply of Arable Land
2981
arable land
available for
agriculture
•• agricultural land needed
at present productivity level *
double at quadruple
present present '•,
productivity productivity
1650 1700 1750 1800 1850 1900 1950 2000 2050 2100
*1 hectare=2,471 acres
Source: Meadows, et. al., The Limits to Growth (New York, 1972), p. 50
diate fear of the United States running out of food. The great
increases in yield per acre which have been achieved cannot continue
for long through the use of fertilizers alone because eventually a point
of diminishing returns will be reached. We are already witnessing
a decline in the usefulness of some chemical pesticides because pest
species have built up resistance.21 The widespread use of seed varieties
developed for pest resistance may prove to be a mixed blessing because
of their greater vulnerability to plant disease.22 All of these problems
are possibilities, not certainties. New technologies for raising crops
may put these concerns to rest. But the example of food supply
illustrates the critical influence which forecasts about technology have
over attempts to foretell the future.
mineral resources
Determining the availability of mineral resources, like the avail-
ability of food, may at first glance seem to be a simple problem of
comparing the supply of a particular resource to the demand. How-
ever, it is far from simple. Data on the supply of any particular mineral
are uncertain, because it is difficult and expensive to determine the
extent and location of as-yet-undiscovered supplies; because the
availability will depend on the market price of the mineral and on the
technology of extracting and processing it; and because supply may
-------
2982
LEGAL COMPILATION—GENERAL
Figure 4
U.S. Harvested Yield per Acre,
Corn and Wheat, 1870-1970
bushels per acre
70
60
50
40
30
20
10
1870 1880 1890 1900 1910 1920 1930 1940 1950 1960 1970
Source: Agriculture Statistics, 1967 Edition, U.S. Department of Agriculture
1 Excludes net exports
-------
GUIDELINES AND REPORTS 2983
be interrupted by political factors which halt shipment of the resource
from one nation to another. Estimates of demand are also subject to
a large number of variables, including levels of population and in-
dustrialization, technological innovations, the price of the resource,
the degree of recycling, and the extent to which substitute materials
are used.
Table 2 illustrates several of these problems. The range of demand
estimates and the differences between the two sources of data used
(U.S. Bureau of Mines and Resources for the Future) point up the
difficulty of obtaining precise figures. The table shows that a large
proportion of the world demand comes from the United States, al-
though the source of many of the minerals is other countries and is
thus subject to political complications. For example, the United
States uses 25 percent of the world's chromium, but almost none of
the chromium reserves is located within the United States. The situa-
tion is similar for such important resources as tin, cobalt, and
manganese.23
Although the importance of the price of the mineral is not reflected
in Table 2, for many minerals a doubling of the price would more
than double the available reserves. When the price of a particular
mineral rises, lower-grade ore bodies become commercially produci-
ble and, in addition, it generates an incentive to search for and
exploit new sources, to pursue technological innovations for extract-
ing or processing the mineral, and to increase recycling. Previously
uneconomic sources or extraction methods may become economically
viable, and at the same time, the demand for the mineral may decline
as substitute materials or end products become more economically
attractive.
If one looks at the world reserves vs. world demand figures in
Table 2. it appears that some minerals will be in very short supply
and that in the case of others there is little cause for immediate
concern when viewing the world as a whole. However, demand is
rising steeply as population and industrialization increase, and a
comparison of estimated demand in 2000 compared with the de-
mand in 1969 shows that figures for the next 30 years may be quite
deceptive. The cumulative demand between 1969 and 2000 may be
almost insignificant compared with the demand that will follow
between 2000 and 2030, because of the exponential increase in con-
sumption of mineral resources. Alternatively, technological changes,
i.e., new substitute materials and new methods of extraction or proc-
essing, may eliminate resource scarcity, at least as currently defined,
as a serious problem.
Even if ample resources were available, however, their geographic
distribution might still result in political uncertainties creating a
scarcity in particular nations. The interim report of the National
Commission on Materials Policy has noted that, "It is clearly evident
from the commodity summaries and the projections that in the case
of a majority of our basic materials, the gap between our [U.S.]
-------
2984
LEGAL COMPILATION—GENERAL
'; \;,; i^tsifey;;: ^"Ct.li'CJt^fi:
j v ;r^^ff^;J;'xtlj*^?5ftv|'if?;
•< ^'f^jf;?* ll;ii%il'^
.'"; '." '-jiit^^S^^dT^^nfiftt,
, -" '• ,*•$/?, -v.? r-sfs^fW
' !;* ^! «'>"''"'C(H *f'«'Jv 'V '!}= 't 'M'^VCt'^l
7 ', • '.> ^K**!,'^* :>l-'l»J"ft«%Irf5:ES.i
. • . ^s*fsi|5^ P v-S'^ft^'W'J
-------
GUIDELINES AND REPORTS 2985
requirements and the remaining easily accessible world supplies is
widening." 24 The demand for minerals in this country is expected
to increase fourfold by the year 2000. If a large portion of this
increased demand is to be met by foreign mineral sources, questions
concerning balance of payments, national security, employment,
capital investment flow to foreign nations, and other factors will
have to be faced.
industrial growth
The Gross National Product (GNP) is the total of goods and
services produced, and thus serves as a rough indicator of the eco-
nomic development of a nation. Figure 5 shows that the U.S. GNP
is growing very rapidly. Many other countries are also experiencing
rapid growth of GNP.
Economic development or industrialization interacts with environ-
mental quality in several very important ways. It may adversely
affect environmental quality by increasing pollution and by consum-
ing resources. However, it may also aid in improving environmental
quality by providing the necessary capital for control measures and
for technological advances. Further, a certain level of economic de-
velopment is necessary to provide the goods which are a vital com-
ponent in any definition of a satisfactory life. Thus, the tradeoffs
between using resources to solve environmental problems and using
them for other kinds of economic development must be carefully
weighed.
Current measures of economic development do not adequately
reflect these considerations. With regard to economic data, it is
important to note the caution contained in the President's 1972
Environmental Message:
Our national income accounting does not explicitly recognize the cost
of pollution damages to health, materials, and aesthetics in the computation
of our economic well-being. Many goods and services fail to bear the full
costs of the damages they cause from pollution and hence are underpriced.25
Thus, the tradeoff between economic progress and environmental
quality must be made explicitly, for it is not encompassed within the
standard indicators of economic development. When forecasting
future developments, the interaction between economic factors and
other important environmental values must be carefully considered.
pollution
Future pollution levels will be determined by the physical factors
discussed above as well as by the technological and social factors
discussed below. The projections of water pollution, using alternative
assumptions, in Figure 6 point out the importance of these factors.
The amount of pollution will hinge on changes in total population,
level of GNP, the stringency of abatement policies, the adoption
of new industrial technologies, and other factors, such as urbaniza-
tion and hydrological cycles, which are not shown in the table.
-------
2986
LEGAL COMPILATION—GENERAL
Figure 5
U.S. Gross National Product1 by Sector, 1930-1971
in billions
of 1958 dollars
800
600
400
200
*j»? >v -s* ^-' T. . / in&W j^ji^AtSTl; fffi»«i_t -ft-L^jiia.)^-^**^
*?i«iJ(^J" i'fiTHw .• "
INVESTMENT'
1930
1940
1950
1960
1971
1 Excludes net exports.
Source: Council of Economic Advisors, Annual Report 1971
Because both U.S. population and GNP will rise between 1970 and
2000, perhaps the key question in forecasting future pollution loads
is the extent to which the pollution increases, caused by population
and GNP growth, will be counterbalanced by changes in industrial
processes and by tighter pollution controls. If new industrial tech-
nologies are widely utilized and secondary treatment of wastes is re-
quired, then projected water pollution in the year 2000 will be less
than it is now. If tertiary treatment were required, year 2000 levels
would fall dramatically below current levels.
-------
GUIDELINES AND REPORTS
2987
Figure 6
Water Pollution, Year 2000
Under Alternative Assumptions
0
1970 ESTIMATED LEVEL
BIOCHEMICAL OXYGEN DEMAND
H—I—I—hH—I—I—I—I
100 200 300 400 1600 1700 1800 1900 2000
Assumptions
1. Census Bureau Population projection "B" (3-child family), high GNP($2.6tnllion),
current levels of waste treatment, current production technology
2. Same as assumption 1 except Census Bureau projection "E" (2-child family)
3. Same as assumption 1 except production technology equal to current most ad-
vanced technology available
4. Population and GNP assumptions same as #1, secondary treatment of all waste,
production technology equal to current most advanced technology available
5. Same as assumption #4 except assumes advanced treatment (rather than
secondary treatment) of all waste.
Sources- Based on data from L. Ayres and I. Gutmanis, "A Model for the Strategic Alloca-
tion of Water Pollution Abatement Funds" (1971), prepared for the Brookmgs Institution;
and International Research and Technology Corp , "Effects of Technological Change on, and
Environmental Implications of an Input-Output Analysis for the U S., 1967-2020" (1971), pre-
pared for Reseources for the Future The Council was assisted by I. Gutmanis in computing
this data.
-------
2988 LEGAL COMPILATION—GENERAL
Abatement policies are probably the most important factor in deter-
mining future pollution loads. However, changes in the technology of
industrial production also are a critical variable, because such changes
are important in curbing waste discharged by a plant. For example,
in pulp production, a major source of water pollution, there has been
a significant shift from use of the sulfite to the sulfate (Kraft) pro-
duction process. Between 1945 and 1969 the proportion of total wood-
pulp production using the sulfite process declined from 23 percent to
9.5 percent. The proportion produced by the Kraft process increased
from 44 percent to 67.5 percent.26 Substitution of the Kraft for the
sulfite process reduces considerably the dissolved organic compounds
and waste water load, as well as SO2 emissions. On the other hand, it
increases certain other kinds of pollutants.
The data in Figure 6 cover only gross pollutants, not contaminants
such as metals or synthetic organic chemicals found in trace (small)
amounts. But the trace contaminants may be more important to pub-
lic health—and there are a large number of them. For example, auto-
mobile exhaust, a major source of air pollution, may contain, besides
the major air pollutants, lead, ethylene dichloride, phosphorus and
boron compounds, alkylated phenols, alcohol, ammonia derivatives.
and a variety of other substances.27
the critical role of technology
The future of all the physical factors discussed above depends to a
great extent on the future development of technology. At least since
the invention of the wheel, man has used technology to overcome
physical limitations. By prudent use of improved technology, land
can be made to grow more food, substitutes can be developed for
scarce natural resources, birth control methods can be improved, and
devices can be made for controlling pollution.
However, new technology also can create many new and often un-
anticipated problems. Automotive air pollution, persistent pesticides,
and nondegradable solid wastes, for example, are the fruit of tech-
nological innovations.
For good or ill, the contemporary world is and will continue to be
substantially shaped by technology. Thus any attempt to look at
what lies ahead must consider new technological developments, and
we must improve our ability to assess and deal with the impacts of
new technologies.
Predicting future technological trends is perhaps the most critical
component of any forecast of the future. But it is also the most diffi-
cult to calculate. Many eminent men have made totally wrong pre-
dictions about future technological developments. For example, H.
G. Wells, one of our better prophets, writing about the airplane in
1902, predicted that "aeronautics will never come into play as a
serious modification of transport and communications."2S
J. B. S. Haldane, one of the foremost interpreters of modern sci-
ence, wrote in 1925 that
-------
GUIDELINES AND REPORTS 2989
If we could utilize the forces which we now know to exist inside the atom
we would have such capacities for destruction that I do not know of any
agency other than divine intervention which would save humanity from com-
plete and peremptory annihilation. But . . . the prospect of constructing such
an apparatus seems to me so remote that, when some successor of mine is lec-
turing to a party spending a holiday on the moon, it will still be an unsolved
(though not, I think, an insoluble) problem.29
In 1937 the National Research Council issued a report on Tech-
nological Trends and National Policy. As Robert Ayres has noted,
the report recognized that
intelligent long-range planning requires insight into the social, technologi-
cal, and military environments which will exist in the future. Yet this study
failed to foresee atomic energy, radar, antibiotics, or jet propulsion, all of
which were under high-priority engineering development or in practical use
5 years later.™
Unlike physical factors, technological innovation is dependent upon
a creative process. Some individual or group must come up with the
new ideas, the new solution to a problem, which eventually results in
the application of new technology. It is difficult, if not impossible,
to predict precisely the rate or direction of this creative process. The
nature and timing of scientific and technological developments and
their rate of application remain subject to many unpredictable
factors.
Past trends are not very useful for predicting the rate of tech-
nological innovation or the contributions which technology will make
toward solving particular problems. Technological applications tend
to grow out of basic scientific discoveries, and the basic scientific
breakthroughs are limited to particular areas. Thus the pace of in-
novation often is very different for different areas. Basic discoveries
about genetic biology in the past few years make it likely that the
coming years will see innovations in dealing with birth control, pre-
vention of birth defects, and similar problems. Thus an area which
20 years ago was producing little in the way of new technologies
is now producing, and probably will continue to produce, a variety
of innovations. Conversely, the period of 1940-50 produced many
new chemical pesticides, whereas there has been little innovation in
this area in recent years, and there is no indication that such innova-
tion is forthcoming. Not only is the pace of technological innovation
different for different areas, but the rate and time required for the
widespread adoption of new technologies vary widely.
Even if one knows the nature of a particular technological innova-
tion, it may be extraordinarily difficult to predict what its impact on
the world will be. We have already discussed this with respect to
the automobile. To take a more elementary example, it is quite doubt-
ful that the inventor of the fly screen foresaw that in many less-
developed countries his invention would markedly improve public
health—because of reduced disease transmission from insects to
humans—leading to a reduction in the death rate, a significant in-
crease in population size, a great strain on the economy, and political
-------
2990 LEGAL COMPILATION—GENERAL
instability, among other things. If he had tried to think of all these
consequences, he might not have had time to invent the fly screen
in the first place.
The key question is whether technological innovation will keep
pace with population, industrial growth, and changing life styles.
There are two lines of argument suggesting that it will. The first is
that it has experienced very large growth in the past, at least in
some of these areas, such as food production. The second is that the
base of scientific knowledge needed to permit technological innova-
tion is increasing rapidly. For example, the number of scientific
articles published, and (until the last few years) the number of
scientists and engineers employed in research and development have
been growing rapidly. Most of the scientists who ever lived are still
alive today. However, both of these factors are offset in part by the
uneven pace of development in different areas. If the rate of tech-
nological innovation taken as a whole could be measured, it might
be growing at an adequate rate. But we might still suffer because
the necessary technology in a particular field had not developed suf-
ficiently fast.
Techniques to forecast the introduction of new technology more
accurately are being developed, but we must also improve our meth-
ods for assessing the impact of new technologies. For example, if there
were to be significant advances in the technology for underground
tunneling, it is likely that there would also be a significant increase in
subways and in underground urban highways. Analysis should be
able to project the impact of these developments on the economy of
central cities, on residential patterns both in the central city and the
suburbs, and on air pollution levels in metropolitan areas. We must
do better in assessing these secondary impacts before the widespread
adoption of the new technology—even when we suspect the results
to be favorable.
We must also develop the institutional mechanisms capable of
making such assessments, although care must be taken not to stifle
the development of new technology. The environmental impact state-
ment process under the National Environmental Policy Act and the
advanced testing requirements in the proposed Toxic Substances Con-
trol Act are two examples of institutional mechanisms for technology
assessment. A variety of other mechanisms exists, but their effective-
ness in examining secondary and tertiary effects must be improved,
and the knowledge that this brings must be better utilized.
social and economic factors
Although we have labeled the basic factors discussed at the begin-
ning of this chapter "physical" forces, they are, in fact, strongly
influenced by human actions and attitudes. Man exercises considerable
control over his destiny. Thus the role of political, economic, and
other institutions must be considered as independent and powerful
influences over the future condition of the world.
-------
GUIDELINES AND REPORTS 2991
the distribution of resources and problems
The uneven distribution among nations of the pressures of popula-
tion growth has already been noted. Great disparities in both re-
sources and problems exist among nations, and these disparities are
growing. Projections in the Club of Rome report indicate that if
current trends in population and GNP growth continue, by the year
2000 the per capita GNP in Japan will be $23,000, in the United
States, $11,000, but in India, only $140, and in China, $100.31 These
figures, of course, represent simply a projection of current trends and
are not likely to work out that way. Looking at the problem from
another perspective, the United States, with a high standard of
living, has a per capita energy consumption six times the world aver-
age. The United States produces two-thirds of the world's telephones
and half of the world's transistors.32
These disparities trace back in part to variations in natural re-
sources and population levels within particular countries. And in part
they represent differences in institutional and technological develop-
ment among nations. These disparities are aggravated by the cumula-
tive growth of national economies and technological skills which
leads to much greater absolute growth in the developed nations than
in the less developed ones. The increase in the U.S. GNP between
1970 and 1971 was greater than the total 1970 GNP of all of Africa.33
The GNP of almost all nations is increasing, but at the same time,
the gap is widening between the rich and the poor.
The dominant role played by social and economic factors in solving
the world's basic problems is most apparent In the obstacles that
hinder the exchange of resources and goods between nations. The
balance of payments and relationships between imports and exports
are major policy issues in almost every nation of the world, and
they are issues which hinder efficient exchange of resources. One
need only look at the extraordinary difficulties of distributing United
States surplus food to nations which need additional food to see the
impact which international economic considerations can have on
the satisfaction of basic needs. To take another example, there is
presently no worldwide shortage of oil, but economic and political
considerations make oil supply a major and growing problem for
many of the developed nations.
Within nations, social factors also can be a determining factor and
should be considered in predicting the effects of a given action. Even
when the technology is available to solve basic problems, cultural
mores and institutional inadequacies often interfere. Adoption of new
agricultural practices, which are part of the "Green Revolution" to
increase the food supply in less developed countries, has been retarded
in some nations by religious and cultural factors. For example, it has
been reported that in much of India, rice is the prestige crop, both
for production and consumption, and thus a change to coarser grains
may be resisted even though far more food could be grown that way.34
Although cheap and easy-to-use birth control methods are available,
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2992 LEGAL COMPILATION—GENERAL
they have not had a significant impact on population in Latin
America, India, and other nations because of a variety of cultural
and institutional barriers. Within the United States, technology is
available to control many, if not most, of the worst forms of pollution,
but it has not been fully applied.
Social disruption within a nation often creates acute problems.
The most glaring instances of mass starvation, such as in Biafra, for
example, have been caused not by any absolute lack of food but
by wartime disruption of harvesting and distribution of the food.
National and international institutions and cultures also may be
quite effective in easing or solving problems. For example, the work-
ings of the marketplace tend to reduce problems of resource scar-
city. As a resource becomes scarcer, the price rises, thereby reducing
the demand and making it profitable to switch to available sub-
stitutes or to develop new ones. Religious and cultural prac-
tices have let man adapt to a variety of conditions in many
ingenious ways by adjusting his expectations to the condition of his
environment.
Currently we are undergoing significant changes in goals, values,
and life styles. As noted by the National Goals Research Staff, "We
have rising expectations and changing values concerning the goals
we should set for ourselves both in resolving existing inequities and
in improving the quality of our lives." 35 Within the limits of avail-
able resources, such changes in values, goals, and life styles can help
solve society's problems. Whether their impact is positive or nega-
tive, changing values will play a key role in almost all major aspects
of the future.
Government policies also have a role. Governments pursue a vast
variety of policies and programs designed to alleviate problems
ranging from hunger to traffic congestion. They sponsor research to
develop needed technology; control, or at least influence, the output
of the economy: and pass laws directed at the variety of problems
faced by the society.
In the context of forecasting the future, government policies are
the social equivalent of individual free will, i.e., they are the factors
which allow a creative response to the conditions created by all
of the other factors. What actions governments will take and how
effective they will be are to a great extent unpredictable. In part
this is because the actions will be influenced by all of the other trends,
actual or predicted, and in part it is because all of the other trends
can be influenced by governmental action.
interrelationship of factors determining the future
All of the factors discussed above—population, food supply, re-
source availability, industrial growth, pollution, technology, eco-
nomic, government policy, and other social factors—are closely
interrelated, and they directly help shape our future environment.
They may be separated for some analytical purposes, but in fact they
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GUIDELINES AND REPORTS 2993
are part of a single, constantly changing world, and if we are to
look into the future, they must be understood and treated as part
of one dynamic system.
The interrelationships emerge in any examination of the factors.
Population determines, in part, the availability of food and resources,
industrial growth, and the degree of pollution. And in turn each of
these factors can influence the level of population. The same mutual
interrelationship exists for all of the physical, technological, social
and economic factors. The relationships are not simple one-direc-
tional, cause-and-effect relationships but rather mutually interacting
aspects of a dynamic system.
The complex nature of each of the factors, combined with the
intricacy of their interrelationships, makes the task of tracing alter-
native paths into the future very difficult. However, systems analy-
sis, the computer, and other tools are making it possible to do a
better job of forecasting by allowing us to deal simultaneously with
a large number of variables. We can never be sure how accurate
forecasts are. Although models can be tested with respect to the
present by using actual past data, the patterns of the future may
be very different from those of the past. There is no way to prove
the validity of predictions except to wait until they are no longei
predictions, but realities. But as our methods of analysis become
more sophisticated and our data are improved, there is increasing
reason to rely more heavily on the results of our forecasting.
There are many who question the usefulness of long-range fore-
casting. They argue that forecasting very far into the future is illusory
because the results will often or possibly always prove to be wrong;
that resources have been and will continue to be allocated efficiently
and effectively by market forces; that technological innovation has
and will continue to keep pace with the world's problems; and that
man is ingenious in solving problems and will be able to surmount
any difficulties that arise. We cannot take such a sanguine view.
Modern science and contemporary institutions have eliminated many
problems, but they have the potential to greatly magnify man's mis-
takes as well as his progress. They have not solved many pressing
problems of today—pollution, urban decay, or traffic congestion.
Even adequate nutrition for the bulk of the world's population still
defies economic and institutional solution, although progress in all
these areas is being made. Although we do not predict inexorable dis-
aster for the human race, we do not believe that technology and the
marketplace will automatically solve all problems.
The need to look ahead is imperative. The present period of his-
tory is not like any period of the past, and we can be sure that the
future will be very different from the present. Thus many mistakes
will be made in trying to look ahead. But we are able to foresee
many problems and opportunities, and as we engage in future fore-
casting, our predictive skills will improve still more.
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2994 LEGAL COMPILATION—GENERAL
Man is not a captive of uncontrollable forces. He can exercise a sig-
nificant degree of control over his future if he has some idea of the
problems which lie ahead. Population control, greater recycling of
resources, improved methods of technology assessment, and a va-
riety of other policies and practices can be utilized now if they are
necessary to deal with future problems. What is at stake is the quality
of life for our children and for the human race. With such stakes
we cannot afford to limit our vision to the present or the short-range
future, even though they may seem to present more than enough
problems to utilize our capability fully.
footnotes
1. See National Goals Research Staff, Toward Balanced Growth: Quantity
with Quality (1970).
2. H. Kahn and A. Wiener, The Year 2000 (1967).
3. H. Brown, The Challenge of Man's Future (1954), p. 265.
4. National Academy of Sciences, Committee on Resources and Man, Re-
sources and Man (1969).
5. Commission on the Year 2000, Toward the Year 2000: Work in Progress,
Daedalus, Summer, 1967.
6. Meadows, et al., The Limits to Growth (1972).
7. Id., p. 23.
8. Commission on Population Growth and the American Future, Popula-
tion and the American Future (1972).
9. Id., p. 1 (Signet edition).
10. Exponential growth is growth that takes place at a certain percentage
each year (for example, a bank account which collects interest at 5 per-
cent annually without additions t3 the principal other than the annual
interest) whereas linear growth takes place through the addition of a
certain amount each year (for example, a bank account which collects no
interest but to which is added $100 a year). Over a long enough period
of time, exponential growth always will outstrip linear growth. Because
exponential growth involves a percentage increase, an exponential growth
rate can also be expressed in terms of a constant doubling time, the
amount of time it will take to double the quantity of the units involved.
This way of expressing exponential growth also brings out the rapidity
with which such growth can take place. If one puts a penny on the first
square of a checkerboard, two pennies on the next square, four pennies
on the next, and so on, doubling the amount each time, on the last square
of the checkerboard one would have to put down approximately $92,100
trillion.
11. Commission on Population Growth and the American Future, Population
and the American Future—Themes and Highlights (1972), p. 9.
12. Communication from Prof. John Wood, University of Illinois.
13. Meadows, et al., supra note 6 at p'. 29.
14. Commission on Population Growth and the American Future, supra note
8 at p. 15.
15. Calculation based on United Nations Department of Economic and
Social Affairs, Growth of the World's Urban and Rural Population
1900-2000 (1969), p. 56.
16. P.L. 91-524, the Agricultural Act of 1970, states that the Congress com-
mits itself to a sound balance between rural and urban America and
directs heads of all executive departments and agencies of Government
to locate new offices and facilities in areas or communities of lower popu-
lation density. The President's proposals for rural community develop-
ment revenue sharing and rural development credit sharing are intended
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GUIDELINES AND REPORTS 2995
to help States and local governments slow the outmigration of population
from rural areas. The President's State of the Union Message of Janu-
ary 20, 1972, spoke to the problem of rural areas being emptied of people
and stated that, "we should work to reverse this picture by including rural
America in a nationwide program to foster balanced growth." The Presi-
dent's message to the Senate on March 5, 1971, on special revenue sharing
stated: "We are taking a number of steps to encourage more development
and settlement in less densely populated areas of our country."
17. An "urban region" is defined as a coterminous area containing a total
population of at least one million. It can be one or more contiguous
metropolitan areas and adjacent to intervening counties with relatively
high population density. Or it can be single counties of lower density
which contain a major transportation corridor linking two or more
metropolitan areas.
18. Pickard, U.S. Metropolitan Growth and Expansion 1970-2000, with
Population Projections, p. 37.
19. Id., p. 38.
20. U.S. Bureau of the Census, 1971 Statistical Abstract, table No. 924, p.
573.
21. Brown, A. W. A., 1968. "Insecticide Resistance Comes of Age." Bulletin
of (he Entomological Society of America, 14: 3-9; U.S. Department o{
Agriculture, Symposium on Economic Research on Pesticides for Policy
Decision Making, April, 1970, speech by C. H. Hoffman. Also see the
Council on Environmental Quality, Integrated Pest Management, 1972
(forthcoming).
22. Food and Agriculture Organization of the United Nations (1968). The
State of Food and Agriculture, Rome, Italy, p. 205.
23. National Commission on Materials Policy, Towards a National Materials
Policy (1972).
24. Id., p. 3.
25. Environmental Protection, February 8, 1972, House of Representatives
Document No. 92-247, p. 6.
26. American Paper Institute, Statistics of Paper (1964, Supp. 1970).
27. Communication from EPA.
28. H. G. Wells, Anticipations (1902), p. 208.
29. J. B. S. Haldane, Callinicus: A Defense of Chemical Warfare (1925).
30. Robert Ayres, Technological Forecasting (1969), p. 12. The Wells and
Haldane examples are also from this source.
31. Meadows, et al., supra note 6 at p. 43.
32. United Nations, Growth of World Industry, VII.
33. U.S. GNP increase was $72.7 billion (Economic Report of the President
(1972), p. 195); 1970 GNP for Africa was $61.9 billion. (Office of
Statistics and Reports, USAID, Reports Control No. 137 (April 1, 1972),
P-1.)
34. D. G. Dalrymple, Survey of Multiple Cropping in Less Developed Na-
tions, USDA, Foreign Economic Development Service, 56-59 (October
1971).
35. National Goals Research Staff, supra note 1 at p. 36.
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2996
LEGAL COMPILATION—GENERAL
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GUIDELINES AND REPORTS 2997
international aspects
of environmental
quality
According to a Swedish report presented to the United Nations
Conference on the Human Environment in June, most of the sulfur
emissions from Swedish industries are carried abroad, while Sweden's
rivers, forests, and property are being damaged by "acid rains" from
the sulfur emissions of British, German and other nations' industries.
Two months before, the United States and Canada agreed on a wide
range of actions to control pollution of the Great Lakes, which span
their common border. Earlier, in February, 12 European nations
signed the Oslo Convention, aimed at curbing ocean dumping in
the Northeast Atlantic and the North Sea. These recent events well
illustrate that many environmental problems override international
borders, that pollution from one country may affect another, and
that the collective pollution from many nations may jeopardize im-
portant common resources such as the oceans and the atmosphere.
Extended discussions at the U.N. conference vividly pointed out that
a nation's domestic pollution cleanup program may affect interna-
tional commerce and that pollution control measures may alter the
demand for natural resources domestically and internationally.
This chapter is divided into four sections. The first reviews sig-
nificant international activities of the past year. The second dis-
cusses pollution of the oceans—a major pollution issue of interna-
tional scope. The third section analyzes environmental standards
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2998 LEGAL COMPILATION—GENERAL
and their effects on national economies and international trade. The
last section addresses a number of wildlife issues of international
interest.
major developments of the past year
The past year was a landmark year for international cooperation
in attacking environmental problems. The Stockholm conference
was the first meeting of almost all of the world's nations—both de-
veloped and developing—to agree on common principles and to es-
tablish international mechanisms for global environmental improve-
ment. In addition to its major role in the conference, the United
States pushed ahead with two major bilateral environmental agree-
ments—with Canada and with the Soviet Union. This section high-
lights these and several other key international accomplishments of
the past year.
the u.n. conference on the human environment
At the June 5-16, 1972, U.N. Conference in Stockholm, represen-
tatives of 113 nations—encompassing most of the world's people—
joined in meetings that mirrored the complexities of winning world-
wide consensus on all aspects of environmental protection. More im-
portant, the conference produced some concrete first steps in institu-
tionalizing international concerns and in coming to grips with sev-
eral major substantive issues of worldwide concern. It achieved
nearly every goal established for it in the preparatory papers and
meetings, including almost all the U.S. proposals. The U.S. delega-
tion, led by Russell E. Train, Chairman of the Council on Environ-
mental Quality, included delegates from the executive branch, the
Congress, the States, and the private sector. The conference agreed
on the following major points:
• A new permanent organization will be established within the
United Nations to coordinate international environmental ac-
tivities. The new Environmental Secretariat will be headed by an
Executive Director with a small staff of about 30 to 50 persons.
It will be supported by a Governing Council, composed of repre-
sentatives of 54 nations, which will report to the General Assem-
bly through the Economic and Social Council (UNESCO).
• A U.N. environmental fund, financed by voluntary contribu-
tions from member governments, will be established. This fund
was initially proposed by President Nixon in his Environmental
Message to the Congress on February 8, 1972. It will be used to
finance the major projects of the new U.N. Environmental Sec-
retariat, such as the worldwide monitoring network approved by
the conference. The initial goal for the fund is $100 million over
the first 5 years. The United States is prepared to commit $40
million over this period on a matching basis, subject to Con-
gressional appropriation. Other countries have already indi-
cated that they will also contribute to the fund.
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GUIDELINES AND REPORTS 2999
' The conference endorsed completion of a convention to control
ocean dumping of shore-generated wastes. Such a convention
was called for by President Nixon in his 1971 Environmental
Message and when he submitted domestic ocean dumping legis-
lation to the Congress. The conference agreed to refer the draft
prepared in April and May of this year to the U.N. Seabed
Committee July-August session for information and comment.
It also called upon interested governments to convene a con-
ference before November 1972 to negotiate a convention for
signature before the end of the year. This conference would be
convened by the United Kingdom in consultation with the
Secretary General of the United Nations.
The conference urged that the International Whaling Com-
mission (IWC) adopt a 10-year moratorium on commercial
whaling. The conference also recommended that the IWC be
strengthened and that international research efforts be increased.
This moratorium was rejected by a 6-to-4 vote (with four absten-
tions) by the IWC at its meeting in London on June 26-30.
The United States, which had proposed the moratorium, cast
one of the four favorable votes. Although the moratorium was
rejected, the Stockholm recommendation and the firm U.S.
position made it possible to secure significant reductions in
quotas and improvements in the IWC and its procedures.
The conference approved the Earthwatch Program—a coordi~
nated plan to use and expand existing monitoring systems to
measure pollution levels around the world and their effects on
climate. As part of this program, a network of 110 monitoring
stations will be set up throughout the world under the auspices
of the U.N. World Meteorological Organization (WMO). The
network will monitor changes in the earth's climate and will
chart levels of air pollution. It will include 10 "baseline" sta-
tions in remote areas to contrast the air quality there and in
developed areas. The Earthwatch Program also includes plans
to monitor the oceans, radioactive wastes, food contamination,
and changes in the numbers of plants and animals which might
indicate hazardous conditions in the environment.
The conference endorsed proposals for conservation conven-
tions:
• The World Heritage Trust Convention was proposed by
President Nixon in his Environmental Message of Feb-
ruary 8, 1971. It is based on the concept that some areas
of the world are of such unique natural, historical, or cul-
tural value that they are part of the heritage of all mankind
and should be given special recognition and protection.
The Stockholm conference endorsed the draft convention
developed under UNESCO auspices and invited govern-
ments to complete work on it "with a view to adoption"
at the next general session of UNESCO to be held in Paris
this fall.
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3000 LEGAL COMPILATION—GENERAL
• The Endangered Species Convention is designed to protect
species of plants and animals threatened with extinction.
It would impose strict controls on the export, import, and
transnational shipment of endangered species. It was en-
dorsed in principle by the conference, with the recom-
mendation that an international conference be held as soon
as possible to adopt a convention.
• The conference adopted a 26-point declaration of environ-
mental principles calling for commitments by countries to deal
with environmental problems of international significance. An
example is Principle 21, which declares that states have "the
responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other
states or areas beyond the limits of national jurisdiction."
• The conference adopted a recommendation calling for com-
pensation by the developed countries to the less-developed
countries for trade damages stemming from environmental fac-
tors. The United States voted against this proposal, pointing out
that many forces affect export earnings and that to single out
any of these, such as environmental actions, for compensatory
treatment is wrong in principle and would create a disincentive
for environmental improvement.
Although most of the Stockholm recommendations require further
action by the U.N. General Assembly, the proposed U.N. Environ-
mental Secretariat, or other international bodies, the conference for
the first time provided a forum for almost all the nations of the world
to deal with a broad range of environmental problems. Considering
the diversity of goals, political systems, and stages of development of
the nations at the conference, the success in reaching consensus on
so many issues was significant.
oecd guidelines
Recognizing that environmental measures can have important
economic implications, the Organization for Economic Cooperation
and Development (OECD)—composed of Japan, Australia, and
the industrialized nations of Western Europe and North America—
asked the Environment Committee that it formed in 1970 to suggest
ways to minimize the impacts of environmental protection measures
on international trade. Based on committee recommendations, the
OECD Council at its ministerial meeting in May 1972 adopted a set
of guiding principles on the international economic aspects of envi-
ronmental policies. These principles, reprinted as Appendix 1 to this
chapter, follow the general recommendations made in July 1971 by
the President's Commission on International Trade and Investment
Policy.1
The OECD guidelines espouse the "polluter pays" principle, which
states that the cost of pollution controls should be reflected in the
costs of making products the use or production of which causes
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GUIDELINES AND REPORTS 3001
pollution. Under this principle some portion of the environmental
protection cost is ultimately borne by the consumer of the product.
The guidelines also include another important principle—that gov-
ernments should frame their environmental protection measures in a
way that avoids creating nontariff barriers to trade. The guidelines
further urge harmonization of national environmental standards
when reasons for differences do not exist—an issue that is explored
later in this chapter.
imco's efforts to control pollution from ships
The Intergovernmental Maritime Consultative Organization
(IMCO), a U.N. specialized agency, is the primary institution
through which the maritime nations reach agreement on controlling
pollution from ships. It has continued its efforts to prevent and
reduce oil pollution from tanker collisions, groundings, and inten-
tentional discharges of oily ballast and bilge water. In October 1971,
IMCO adopted standards to reduce oil outflow from tanks ruptured
in vessel casualties. In May 1972, the President submitted to the
Senate for its advice and consent convention provisions to implement
these standards.2
In December 1971, the United States and a number of other
nations agreed to compensate victims damaged by oil spills by es-
tablishing a compensation fund supported by contributions from
oil cargo receivers.3 This convention was also developed by IMCO.
In October 1971, IMCO resolved to make the complete elimination
of international pollution from oil and noxious substances and the
minimization of accidental spills the main objectives of its 1973
Conference on Marine Pollution. Through IMCO's Subcommittee
on Marine Pollution, the United States is helping to develop a
new international convention to replace the 1954 Convention for the
Prevention of Pollution of the Sea by Oil.4 The new convention's
goal will be to eliminate intentional discharges of oil and hazardous
substances from ships by 1975, if possible, or at the latest, by the
end of the decade. This goal was first proposed by the United States
at a meeting of NATO's Committee on the Challenges of Modern
Society in late 1970.
committee on the challenges of modern society (ccms)
The North Atlantic Treaty Organization's CCMS, established in
1969 at the President's recommendation, has extended its multilateral
"pilot project" approach to a number of environmental programs.
In the field of air quality, for example, with the United States as the
pilot country, CCMS adopted a resolution for NATO nations to use
a systems approach to develop air quality management programs.
In addition, it has published air quality criteria documents for sulfur
oxides and particulates and plans to publish additional documents
on carbon monoxide, nitrogen oxides, and photochemical oxidants.
This is the first time an international body has been able to agree
on publication of such criteria. The committee is planning a second
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3002 LEGAL COMPILATION—GENERAL
international conference on advanced low-pollution engines for
motor vehicles.
In the field of water quality, a Canadian-led project is developing
a model approach to dealing with water quality in an interjurisdic-
tional setting. Using the St. John's River Basin on the U.S.-Canadian
border between Maine and New Brunswick, the project will establish
a cooperative program involving Provincial, State, and local govern-
ments. A conference on the problems of cooperation in an interna-
tional river basin will be held this fall in Maine. A British-led project
on advanced sewage treatment has been built around a demonstra-
tion plant using the advanced physical-chemical treatment process.
Germany and France are undertaking a similar program em-
ploying the pure oxygen process. In addition, a program is underway
to model pollution in the North Sea in connection with the CCMS
ocean pollution project. Led by Belgium, the project is also over-
seeing implementation of its goal of ending deliberate oil discharges
by the end of the decade. This was the goal adopted as the basis for
a convention being prepared by IMCO.
CCMS is expanding its environmental efforts beyond pollution
control. For example, a French-led project is examining various ap-
proaches to land use planning as it relates to environmental quality,
with recommendations expected at the end of this year. And the
Committee is considering the possible establishment of an Interna-
tional Cities Institute to deal with common urban problems on a
systems basis.
u.s. bilateral actions
The United States entered into two unprecedented bilateral agree-
ments in 1972. An agreement with Canada to restore and protect
the Great Lakes and an agreement with the Soviet Union on a
broad range of environmental concerns. In addition, the United
States recently agreed with Mexico to take new steps to protect
the quality of the water in the Colorado River as it flows from the
United States into Mexico.
united states-canadian great lakes water quality agreement—
The United States-Canadian Great Lakes Water Quality Agree-
ment,5 signed by President Nixon and Prime Minister Trudeau on
April 15, 1972, in Ottawa was a major bilateral action to address a
common environmental problem.
Pollution of the Great Lakes, especially Lake Erie, has been a
matter of intense United States and Canadian concern. The lakes
are not just a critical natural resource but are also a center of com-
mercial and industrial activity for both nations. Because the interna-
tional boundary passes through four of the five lakes and through
the three connecting channels, pollution of these waters cannot be
abated successfully except by cooperative action.
The basic U.S.-Canadian agreement on the Great Lakes is articu-
lated in the Boundary Waters Treaty approved by the U.S. Senate
in 1909.6 In 1964, the two governments asked the International Joint
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GUIDELINES AND REPORTS 3003
Commission (IJC), a joint U.S.-Canadian organization established
under the 1909 Treaty, to investigate and report on the condition
of the waters in Lake Erie, Lake Ontario, and the international sec-
tion of the St. Lawrence River and to recommend actions to improve
water quality. The IJC submitted its final report to the governments
in 1970, urging specific joint action. The report and its recommenda-
tions were reviewed by a U.S.-Canadian joint working group com-
posed of Federal, State, and Provincial agency representatives. It
reported its conclusions to a ministerial level meeting in Washington
on June 10, 1971. The United States and Canada then negotiated
and concluded the agreement.
The agreement calls on the United States and Canada to adopt
both general and specific water-quality objectives. The general objec-
tives are described in terms of five freedoms: freedom from toxic
substances; freedom from nutrients in quantities which stimulate
growth of unsightly weeds and algae (accelerated eutrophication) ;
freedom from oil, floating debris, scum and other floating materials;
freedom from material producing odor, color, or other nuisance
conditions; and freedom from objectionable sludge deposits.
The agreement prescribes as specific objectives maximum ambient
concentrations for specific pollutants and maximum loadings for
phosphorous. U.S. and Canadian water quality standards and regula-
tory requirements must conform to these objectives, which in some
cases are stricter than existing Federal-State water-quality standards.
The IJC is charged with monitoring both U.S. and Canadian prog-
ress in fulfilling the goals of the agreement.
The two governments agreed that by December 31, 1975, certain
programs and measures either will have been completed or will be
in process. However, control of pollution in the Great Lakes will be
a continuing demand on both nations long after that. New programs
will be implemented and old ones revised as necessary.
The cost of preventing and cleaning up pollution in the Great
Lakes is influenced by increasing population, industrial growth,
intensified agriculture, and many other factors. Accordingly, no one
sum may be given as the cost to clean up the lakes. The United
States will furnish funds to construct municipal waste treatment
plants and to help finance State water pollution control programs on
the Great Lakes. This year approximately $400 million of Federal,
State, and local funding will be provided for the Great Lakes treat-
ment program. New water pollution legislation, now being con-
sidered by the Congress, would permit expanded construction and a
more intensified enforcement program.
the environmental protection agreement between the united
States and the soviet union—On May 23, 1972, President Nixon
and President Podgorny signed an agreement on environmental mat-
ters 7 that is significant both environmentally and politically. The
agreement not only is a potential model of how two nations can work
together to understand and protect the environment, but it also
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3004 LEGAL COMPILATION—GENERAL
strengthens cooperative efforts between two of the world's great
powers.
The two countries have agreed to work together in 11 problem
areas ranging from air and water pollution and the urban environ-
ment to the influence of environmental change on climate, earth-
quake prediction, and arctic and subarctic ecological systems. The
scope of the agreement reflects the fact that the United States and
the Soviet Union, both industrial nations with large and diverse land
areas, experience almost every type of environmental problem. It goes
far 'beyond past arrangements between the United States and Russia
for exchanging visits and research information. It calls explicitly for
joint action programs and active cooperation on specific projects.
Although early efforts will focus on the 11 specific areas, the agree-
ment envisions great flexibility in extending programs to other areas.
The long-term nature of environmental problems is reflected in the
5-year term of the agreement, which will continue to be extended
for successive 5-year periods unless one party wishes to stop. The
full text of the agreement is reproduced as Appendix 2 of this chapter.
united states-mexican communique on salinity—In a further
move toward environmental accord with an immediate neighbor, the
United States has initiated new steps to deal with Colorado River
salinity that Mexico has determined damages agriculture in its Mex-
icali Valley. In a joint communique issued on June 17, 1972, with
visiting Mexican President Echeverria, President Nixon announced
that the United States will take several immediate measures to reduce
salinity and that he will appoint a special representative to investi-
gate the entire problem in order to propose by the end of 1972 a de-
finitive solution for the approval of the U.S. Government.8
In the 1944 Mexican Water Treaty,8 the United States agreed to
deliver annually 1.5 million acre-feet of Colorado River water, which
might come "from any and all sources," without mention of quality.
However, after the Wellton-Mohawk Irrigation and Drainage Dis-
trict began a pumped drainage operation in 1961 in southwestern
Arizona, Mexican farmers complained of an increase in the concen-
tration of salts, the Mexican Government contending that the water
was too saline to be acceptable under the Treaty and was contami-
nated contrary to international law. The United States took meas-
ures at once to reduce the salinity. In a 1965 agreement with Mex-
ico, the United States agreed to take further measures to upgrade
the river's quality,10 which was done at a cost of $12 million. How-
ever, the Mexican Government complained that despite the remedial
measures taken, the salinity of the Colorado River in Mexico is still
too high for proper agricultural use and that the disparity is too great
between the quality of its water and that used by major water users
in the United States near the border.
The June 1972 communique, in addition to dealing with the issue
of Colorado River salinity, contained an agreement by the two Presi-
dents to have policy-level officials from the United States and Mexico
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GUIDELINES AND REPORTS 3005
meet regularly to discuss other environmental problems of natural
concern and methods for dealing with them more systematically.
pollution of the oceans
Many pollutants eventually end up in the world's oceans. They
are carried there by the winds and wash in with rain or snow, and
they flow from the rivers or outfalls which drain the land. The dump-
ing of dredge spoils and other wastes in the oceans and discharges
of oil and other hazardous substances from ships are further path-
ways that pollutants follow into the marine environment.
Sometimes no immediately visible problems arise from man's use
of the oceans as a common dumping ground. Often the oceans seem
capable of forever diluting and rendering harmless the wastes pour-
ing into it. There is disturbing evidence, however, that the waters of
the open ocean—and especially the biologically rich coastal waters
and estuaries—are becoming more and more polluted.
At times marine pollution appears principally as a national prob-
lem, as when the coast of a particular country becomes polluted. At
other times the problem is regional, as with the pollution of the Baltic,
Black, Mediterranean, and North Seas. But in the final analysis, ma-
rine pollution is fundamentally an international concern. The seas
play a vital role in maintaining the world's environment, making a
home for a rich variety of life, contributing to the oxygen-carbon
dioxide balance in the atmosphere, altering global climate, and pro-
viding the base for the world's hydrologic system. Marine resources
are economically vital to man. And because they are used by man-
kind as a whole, national and international action to protect them
becomes mandatory.
We do not know as much as we should about the dimensions and
severity of marine pollution. We do not fully understand the path-
ways of pollutants in the marine environment and the rate at which
they are removed or assimilated. Further, we have only limited data
on the harm caused by pollution, especially that resulting from long-
term exposure to potentially harmful substances in small concen-
trations. For this reason, it is extremely important that much more
research and monitoring be undertaken for accurately measuring
the degree of marine pollution that we now have, to discover its
routes, and to chart the long-term hazards inherent in current and
even greater levels of pollution. At the same time, protective actions
can and should be taken now. One of the principles outlined in the
Declaration on the Human Environment, adopted at the U.N. Con-
ference in Stockholm, deals with national responsibilities to prevent
pollution of the oceans. It provides that:
States shall take all possible steps to prevent pollution of the seas by sub-
stances that are liable to create hazards to human health, to harm living re-
sources and marine life, to damage amenities or to interfere with other legiti-
mate uses of the sea.
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3006 LEGAL COMPILATION—GENERAL
marine pollution from the atmosphere
Many pollutants enter the seas by way of the atmosphere. It is
estimated, for example, that more than 90 percent of the petroleum
polluting the oceans each year comes not from tanker breakups or
other disasters but from the vaporization of gasoline and other pe-
troleum products ashore.11 The washout of heavy metals and syn-
thetic organic chemicals from the atmosphere is also important. Lead
and DDT inputs into the marine environment from the atmosphere
may be as large as or larger than inputs from rivers.12
Pollutants can persist in the atmosphere for varying lengths of
time, and some drift over great distances. Sulphur dioxide, for ex-
ample, has an average lifetime of 2 or 3 days in the atmosphere be-
fore dropping out in precipitation. There is evidence that during this
period it can travel hundreds of miles from its original source. Ni-
trogen oxides, water vapor, and particulate matter discharged into
the stratosphere by high-flying aircraft can stay aloft for at least a
year and can be dispersed over great distances.13
Although marine pollution is an international problem, the first
line of defense is national. There are no international mechanisms
for controlling air pollution from individual countries, and it seems
unlikely that such mechanisms are forthcoming in the near future.
Existing international organizations have no enforcement powers.
They can merely encourage member nations to develop their own
air quality standards to curb the pollutants that they discharge into
the air. This situation argues for strong national legislation, standard
setting, and enforcement—with international effects taken into con-
sideration. Otherwise, marine pollution from all sources, including
the atmosphere, will continue to worsen in the years ahead.
pollution from rivers
Pollution from rivers—from municipalities, industries, and land
runoff—is the principal route by which most pollutants reach the
oceans. River banks are the site of heavy industrial and municipal
concentrations whose effluents often are insufficiently treated before
they are discharged. Land runoff pours nutrients, pesticides, and or-
ganic wastes into the rivers, which eventually flow into the oceans.
There the pollutants that they carry are joined by pollutants from
other rivers and ocean outfalls.
As in the case of pollution from atmospheric sources, pollution
from land runoff is essentially a problem to be solved at the national
level. Some countries already have taken important actions to clean
up their rivers. These actions benefit estuaries, coastal regions, and
the open sea. The United States, for example, has Federal-State
water quality standards, which are enforced by regulating industrial
and municipal effluents. Funds are made available to localities to
build sewage treatment facilities. Comprehensive new water quality
legislation remains to be hammered out in a Congressional confer-
ence committee.14
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GUIDELINES AND REPORTS 3007
A dramatic example of a new national effort can be seen in Brit-
ain, where a massive campaign to fight water pollution was an-
nounced early this year. Britain will spend some $3.8 billion over
the next 5 years—nearly 50 percent more than it spent during the
last 5 years—to clean up over 2,000 miles of seriously polluted rivers.
CCMS has launched river basin studies,15 and other international
organizations, such as the U.N. Economic Commission for Europe
(ECE) are seeking ways to reduce water pollution within Eastern
and Western Europe. OECD has agreed to undertake a pilot study
of coastal degradation and pollution in the Mediterranean. On the
national level, many governments have plans to clean up their
rivers with better sewage treatment.
But marine pollution from rivers also lends itself to regional solu-
tions. Certain areas—the Baltic, Black, and North Seas, for example—
are seriously polluted and demand cooperation between nations
whose rivers drain into them. The recently concluded agreement
between the United States and Canada to clean up the waters of the
Great Lakes furnishes a model for this kind of cooperation.
ocean dumping
The dumping of wastes at sea—dredge spoils, industrial wastes,
sewage sludge, and solid wastes—is only a part of a broad problem
of marine pollution. But it is one which requires national and inter-
national action before the practice gets out of hand. The United
States has moved to curb marine pollution through domestic legis-
lation to regulate ocean dumping of shore-generated wastes. The
legislation has passed both the Senate and the House and has been re-
ported out by a conference committee.16
The United States has also been working with other nations on
an international convention to control ocean dumping. The conven-
tion would only allow dumping in accordance with a permit system
adminitsered by national authorities.
The U.N. Conference at Stockholm urged a special meeting be-
fore November 1972 to ready the convention for signature by the
end of the year. In the meantime, the Oslo Convention, an important
regional convention signed in February 1972 by 12 European coun-
tries, will help to end dumping of hazardous wastes by ships and
plans in the Northeast Atlantic and the North Sea.17
Ongoing efforts to achieve a worldwide ocean dumping convention
illustrate the technical and political difficulties that may beset efforts
to shape international environmental agreements. It has been difficult
to reach agreement on which toxic substances should be banned al-
together from dumping. There has also been disagreement on how
to handle contaminants such as mercury, which may be present in
trace amounts in dredge spoils and municipal wastes. At the present
time, there is no international body with sufficient technical exper-
tise to set tolerance levels for such trace pollutants or to oversee
a system of dumping permits for materials that exceed agreed-upon
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3008 LEGAL COMPILATION—GENERAL
tolerances. The United States has therefore proposed that a U.N.
body, the Intergovernmental Maritime Consultative Organization,
develop this kind of technical and administrative capability. Pre-
liminary work in this area has been initiated by the Joint Group of
Experts on the Scientific Aspects of Marine Pollution, a special orga-
nization affiliated with the United Nations.
pollution from ships
Shipboard discharges of oil, garbage, and other wastes into the
seas is a growing problem. Oil is particularly vexing because a small
amount spread over wide reaches of ocean may well cause serious
environmental damage. Discharges from ships can also severely con-
taminate waters in ports, bays, and ship channels and along coasts.
Thus, pollution from shipping is another problem with both interna-
tional and national overtones and one for which international action
is particularly crucial.
The recent work of the United States and other nations through
IMCO to control pollution from ships was described in the first sec-
tion of this Chapter. Another approach to marine pollution, adopted
by Canada, is the unilateral establishment of a pollution control
zone at sea. Canada has claimed a 100-mile zone of this kind in the
area above 60° N. latitude, arguing that the Arctic region is in need
of special protection from oil and other spills because the intense
cold causes pollutants to persist for a long time. The United States
has taken the position that such zones go well beyond the traditional
breadth of the territorial sea, have no sanction in international law,
and are not the best way to control ocean pollution effectively be-
cause they involve fragmented unilateral actions rather than inter-
nationally agreed upon arrangements. The issue of pollution-control
zones will be a major item of interest for participants in the U.N.
Law of the Sea Conference planned for 1973.
international uniformity of pollution control standards
The new water pollution-control legislation recently passed by the
House of Representatives and the Senate 18 directs the President to
pursue international agreements for uniform effluent standards for
new facilities and for toxic and ocean discharges. This directive
raises a broader question of potentially critical environmental, eco-
nomic, and political consequences: To what extent should nations
throughout the world make various pollution-control standards
uniform? The question already has been debated vigorously within
the Committee on the Environment of the OECD and in other inter-
national forums.
The first consideration is the extent to which uniform standards
can be justified on an environmental protection basis. Air quality
standards, for example, can be considered at two different levels—•
protection of health and protection of property, vegetation and
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GUIDELINES AND REPORTS 3009
aesthetic values, as is the case under the Clean Air Act in the United
States.19
Except to the extent that people in various geographical areas may
respond substantially differently to a particular ambient concentra-
tion of common pollutants because of variations in altitude, climate,
and the like, uniform minimum air quality standards to protect
public health may have merit. In setting standards to protect prop-
erty, vegetation and aesthetics, however, each country will tend to
weigh its social, political, and economic values much more heavily
in deciding the level of air quality compared to other national goals.
Water quality standards.are based upon the designation of bene-
ficial uses for specific bodies of water and portions thereof. The de-
sired uses are likely to vary to some extent among nations. Water
quality criteria—based on use designations—specify the concentra-
tions that must be achieved (as in the case of dissolved oxygen) or
must not be exceeded (as in the case of biochemical oxygen demand).
Even within a nation, such as the United States, where there are
many types of waterways and aquatic populations, the criteria to
protect a particular use designation (e.g., fishing, domestic water
supply, and swimming) vary with the pecularities of the water body.
These factors apparently were recognized in the pending Senate and
House water quality bills, which do not call for uniform interna-
tional water quality standards.
The strongest argument for common air or water quality standards
is made when pollution from one country crosses into another. Such
standards need be uniform only in the sense that common objectives
are agreed upon in order to protect one nation from pollution
originating in another.
In both existing air quality legislation and pending water quality
legislation at the Federal level in the United States, there are re-
quirements for new facilities to meet minimum emission or effluent
limits based on the performance of demonstrated technology.20 These
controls are independent of limits based on ambient air and water
quality standards for various pollutants—frequently mandating
higher levels of abatement than such standards would require. The
rationale in both cases is that advanced pollution control technology
can be most economically employed in new facilities in order to pre-
vent future growth from degrading environmental quality. There
may well be merit in such a technologically based control strategy for
new facilities on an international basis. The actual level of technology
might vary among nations according to such relevant factors as the
rate, nature, and concentration of growth.
It does not make sense from an environmental standpoint, how-
ever, to demand the same degree of emission control internationally
on all new automobiles. For example, some nations do not need
standards as stiff as the United States with its large and concentrated
automobile and urban populations.
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3010 LEGAL COMPILATION—GENERAL
Toxic pollutants in both air and water are sufficiently dangerous
to health and environment'in almost any quantities to warrant con-
trols that prevent or at least minimize their release into the environ-
ment rather than setting a tolerable ambient concentration in air or
water. Thus, like new facilities, toxic emisisons and effluents
appear amenable to uniform international standards. Similarly,
all discharges into the oceans—shared resources for all man-
kind—ought logically to be governed by uniformly accepted prin-
ciples and criteria. This approach has been adopted by the United
States in seeking an international convention on ocean dumping.21
In the case of pesticides, the desirability of uniform standards hinges
largely on the type of pesticide under consideration. Persistent
pesticides such as DDT and other chlorinated hydrocarbons can have
effects throughout the world. Because of their long life and nonde-
gradability, these pesticides tend to accumulate in the oceans and in
animal and plant life, where their concentrations are magnified. In
view of their widespread impact, it appears that persistent pesticide
use should be confined to health protection or other essential uses
for which no feasible alternative is available. With nonpersistent
pesticides, different ecological systems, food chains, application prac-
tices, and other factors probably warrant substantial latitude for con-
trols among different nations. The use of such pesticides particularly
involves a weighing of benefits and risks, such as the prevalence or
absence of a pest-carried disease problem (malaria, for instance) and
the need to assure an adequate food supply.
As shown, many factors must be considered in assessing the
desirability—scientifically and environmentally—of international as
compared to national controls over pollution. Even when uniform
international environmental protection standards can be justified on
purely scientific grounds, there are substantial social and political
constraints. Individual countries differ tremendously in their priori-
ties, stage of economic and technological development, and cultural
values. Although it would be shortsighted for any nation to pursue
industrial development and ignore the inevitable side effects of pollu-
tion, the exact degree of environmental controls will vary from one
nation to another. The factors that will decide this include the na-
tion's stage of economic development, its need for industrial expan-
sion, and its difficulty in attracting industries.
A nation with an extremely low standard of living and the need
to build a strong industrial and commercial base may be more tolerant
of environmental abuses than a more highly developed nation. More-
over, nations with relatively limited resources may decide that basic
health care services or education, and not the environment, has the
highest priority.
To some extent, a less-developed country might seek to justify be-
coming a pollution haven because it desperately needs the jobs that
foreign investment would bring. It might set low environmental
standards designed to attract industrial investment. It might fur-
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GUIDELINES AND REPORTS 3011
ther argue that setting weak standards is fully within its prerogatives
as a sovereign nation and that so long as its pollution does not cross
national frontiers or unduly contaminate global air and water re-
sources, its actions are beyond reproach. But in the long term, it is
doubtful that such a country's overall economic development would
be helped. While the immediate economic benefits of unregulated
industrialization could temporarily speed its development, the heavy
social cost in increased diseases, mortality, and degradation of re-
sources could slow down development over the long run. If develop-
ment continued unchecked, it would be only a matter of time before
a less-developed nation became so polluted that it would be forced
to adopt, however belatedly, environmental measures similar to those
of developed nations. But by then, irreparable physical, social, and
economic harm might already have been done. Firms in such coun-
tries that developed markets based on production without pollution
control might have trouble adapting to new standards. Such transi-
tional problems could hamper development further.
The environmental and economic hazards of a nation's adopting
lax pollution control standards are real, but they do not necessarily
lead to the conclusion that uniform standards are needed. Interna-
tional uniformity of pollution control standards has the most validity
in certain areas—toxic pollutants, persistent pesticides, controls on
new facilities. Uniform air quality standards to protect health may
also have merit.
But it may be much more useful and feasible to concentrate pri-
marily on the development of uniform—and more important, compre-
hensive—international criteria for environmental protection
standards. Such criteria would assimilate the best available scientific
data on the environmental and health dangers of various pollutants
at different levels of concentration in the environment. The World
Health Organization and CCMS have already done work to develop
and publish such criteria.
International criteria, along with informational guidelines on avail-
able control technologies and their performances, could serve as the
basic underpinning for appropriate standards in individual nations.
And if some form of international standards were deemed desirable
at a future time, the criteria would provide a scientific basis for their
development.
international economic effects of
environmental controls
Practically all measures to maintain and improve the environment
have an economic impact. There are a number of specific issues that
bear directly on international trade and investment and that, unless
resolved satisfactorily, could damage international economic rela-
tions and set back efforts to improve the environment. The issues
include how to prevent pollution controls and their costs from distort-
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3012 LEGAL COMPILATION—GENERAL
ing international trade, what policy to adopt toward the movement
of capital investment to pollution havens, how to reconcile real
and imagined conflicts between environmental imperatives and eco-
nomic development, and how to avoid damaging the export markets
of less-developed countries (LDC's) with environmental programs of
developed countries.
effects on trade
Some industrialists worry that firms subject to strict environmental
standards will be put at a competitive disadvantage with foreign
competitors that are not. There is a corresponding concern that
nontariff barriers, such as frontier charges and export subsidies, may
be established by nations with high environmental standards to equal-
ize environmental costs with trade competitors. Such action could
trigger a series of retaliatory trade actions. Further consideration of
this problem may be found in the 1971 report to the President by the
Commission on International Trade and Investment Policy.22
The United States is hopeful that the guiding principles agreed
to in the OECD, which seek to harmonize to the extent practical
the environmental policies and practices of member countries, will
help avoid or minimize such trade problems.
A significant element of the guidelines is the "polluter pays" prin-
ciple, which provides that the cost of pollution controls should be
reflected in the costs of goods the use or production of which cause
pollution and should not be financed by subsidies. The guidelines
permit certain exceptions to the "polluter pays" principle, particularly
for transitional periods, provided that they do not lead to significant
distortions in international trade and investment. Adherence to this
principle will both contribute to a more efficient allocation of pro-
ductive resources and, by promoting uniform practices for the fi-
nancing of pollution-control costs, help avoid trade distortions.
The OECD guidelines also address international differences in
environmental standards, discussed earlier in this chapter. They rec-
ognize that even if all nations follow the "polluter pays" principle,
international trade distortions may be caused by widely disparate
standards, especially if some countries become pollution havens—
setting inadequate environmental standards in order to attract in-
dustrial investment or to gain a competitive advantage for their
export industries. While recognizing that in many cases valid rea-
sons exist for differences among national environmental standards,
the OECD guidelines recommend that whenever appropriate, gov-
ernments should harmonize national environmental policies. They
also urge worldwide movement toward effective standards. The
guidelines suggest that harmonization among nations of the timing
and general scope of regulations for specific industries is particularly
appropriate from the standpoint of preventing trade distortions.
The Environment Committee of the OECD is now working on
a notification and consultation procedure for member governments
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GUIDELINES AND REPORTS 3013
to use in consulting with each other on their observance of the
guiding principles. Information that American firms can supply the
U.S. Government regarding foreign environmental standards and
policies will be useful in such considerations involving our
Government.
It is too early to evaluate how successful these OECD measures
will be in minimizing distortions of international trade. Although
member nations of the OECD have agreed in principle to follow the
"polluter pays" philosophy and to consult with other governments
in standard setting, putting these concepts into practice will not be
easy. The logistics of international consultation will often be com-
plicated by domestic demands and legislative requirements. Some
firms may seek exceptions to the "polluter pays" rule and pressure
their governments to relax the rule for them. Although a certain
flexibility in administering the "polluter pays" principle is necessary,
leniency in interpretation and numerous exceptions will defeat its
purposes.
effects on development
The economic implications of environmental controls are of par-
ticular interest and concern to the less-developed countries. The
LDC's are mainly worried that their economies will be adversely af-
fected in two respects: higher development costs caused by environ-
mental safeguards imposed by donor nations for specific aid projects
and programs and reduced exports of materials for which world de-
mand may be reduced by domestic environmental controls adopted
by developed nations. There were sharp discussions of these issues in
preparatory meetings for the Stockholm Conference on the Human
Environment, and the subject was in the forefront of LDC thinking
at the conference.
Over the opposition of almost all aid-donor countries, the LDC's
won approval at Stockholm of a recommendation calling for an in-
crease in assistance "adequate to meet the additional environmental
requirements" of developed countries. The main basis for the U.S.
vote against this recommendation was that there is no rationale for
singling out environmental protection costs from among others for
special accounting in giving aid. At U.S. initiative, the Development
Advisory Committee of the OECD has begun discussions aimed at
coordinating donor nation policies on the environmental ramifica-
tions of development aid to the LDC's.
Developing nations that depend mainly on exports of primary re-
sources are concerned that the demand for such resources will be
reduced as a result of actions by developed countries to safeguard
the environment. Thus, LDC's that produce lead and sulfur, for
example, fear that as lead is phased out of gasolines and paints and
as sulfur is recovered from coal and oil desulphurization processes
and from the stack gas removal of sulfur oxides, the worldwide de-
mand for these materials will decline.
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3014 LEGAL COMPILATION—GENERAL
If recovery and recycling of waste materials become more wide-
spread in industrialized countries, developing countries are afraid
that the rate of growth in the use of many natural resources, in-
cluding iron ore, timber, and bauxite, will slow down. To meet this
problem, developing countries believe that the developed countries
should be prepared to pay "compensation" to cover any decline in
export earnings that is caused by actions taken in the developed coun-
tries to protect the environment. A recommendation to this effect
was also adopted at the TJ.N. conference.
The United States voted against this proposal because as a matter
of principle it opposes compensating countries for declines in their ex-
port earnings for whatever cause and believes that a commitment
to pay such compensation would serve as a disincentive to environ-
mental controls. However, the United States made it very clear that
it will take all practical steps in carrying out environmental programs
to prevent reduced access to our markets and will not use environ-
mental concerns as a pretext for discriminatory trade policies. The
United States also said that it was fully prepared to deal with any
claim that U.S. environmental actions violated its General Agree-
ment on Tariffs and Trade (GATT) obligations in accordance with
established GATT procedures.
conservation of natural resources
Although the international aspects of marine pollution are very
clear, conservation is often thought of primarily in a limited national
sense—such as preserving animals and their habitats in a particular
country. However, conservation has a broader meaning. For- ex-
ample, some ocean resources, such as whales, are international in
nature. Certain animal species such as spotted cats or natural areas
such as the Serengeti Plains of East Africa, found in individual
nations, are resources of interest to all mankind.
Conservation is not merely a concern of the upper and middle
classes in developed countries—it can either foster or hinder both the
long-term plans of the LDC's for overall development and a favor-
able balance of payments. Tourism from abroad is a major earner
of foreign exchange and occupies an important position in the
economies of some LDC's. Wild animals in their natural settings are
often a focal point of tourism.
animals of special concern
whales—Marine mammals, including whales, dolphins, seals, and
polar bears, are increasingly endangered by man's onslaughts. Of
these mammals, some species of whales are probably in the greatest
jeopardy.
Technological developments over the years—such as ships powered
by engines instead of the wind, the invention of the explosive har-
poon gun, and the later development of fast killer ships, huge factory
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GUIDELINES AND REPORTS 3015
ships, radar and sonar, and helicopters—all combined to increase
the efficiency of whale killing greatly.
The effect on whale stocks of this accelerated killing was predicta-
ble. In the peak year of 1930, almost 30,000 blue whales were killed,
out of a total population estimated at 100,000.23 By 1964, when the
International Whaling Commission (IWC) prohibited further tak-
ing of blue whales by member nations, less than 5 percent of their
original estimated population of 200,000 was left. Along with the
blue whale, four other species—right, bowhead, humpback, and
gray—have also been overharvested, and their harvest has also been
banned. Some stocks of four other species of large whales—fin, sei,
sperm, and Bryde's—are significantly depleted but are still harvested.
The population of the fin whale is severely reduced from its estimated
original size. Commercial harvesting of whales is actually no longer
necessary in view of the fact that there are now substitute raw mate-
terials for virtually all products fabricated from whales. Soap, marga-
rine, cosmetics, machine oil, transmission fluid, fertilizer, food, and
pet food—for which whale products are used—can easily be made
from other substances. However, some countries still rely rather
heavily on whale meat for human food.
Because of the increased national concern for the protection of
whales, in 1971 the Senate and House of Representatives both passed
resolutions calling for a 10-year moratorium on the killing of all
whales.24 On December 2, 1970, the Secretary of the Interior put
eight species of commercially hunted whales on the Endangered Spe-
cies list.25 This action banned the import of whale products as of
December 1971, thus removing about 20 percent of the world's de-
mand for such products. The last remaining U.S. whaling opera-
tion was terminated as of December 1971, when the Secretary of
Commerce announced that no further licenses for commercial whal-
ing by U.S. citizens would be granted.
Similar efforts to save whales have not been undertaken by either
Japan or the Soviet Union, which in the 1969-70 season together
accounted for 85 percent of the 42,000 whales killed.26 The main
international organization concerned with whaling—the IWC—has
not taken effective action in the past to halt the precipitous decline in
whale populations.
Today some species stand on die edge of extinction. The IWC's ap-
proach to protecting endangered whales has been to try to manage
them, on a sustained-yield basis, by setting quotas on takings low
enough to permit depleted populations to recover. However, the
limits set at the June 1971 IWC meeting were unsatisfactorily high.
And although it was agreed that international observers would ac-
company whaling fleets beginning with 1971-72 Antarctic season, the
Russian and Japanese fleets sailed without any observers.
The United States has advocated a 10-year moratorium on all
whaling, both to let presently depleted stocks recover and to gen-
erate needed scientific data on whales. The U.N. Conference on the
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3016 LEGAL COMPILATION—GENERAL
Human Environment endorsed this proposal, calling upon the IWC
to implement it. While pressing for the moratorium, the United
States also strengthened its participation in the IWC. In April 1972,
the President appointed the Chairman of the Council on Environ-
mental Quality as his special representative to the IWC and urged
other governments to take steps to buttress the works of the
Commission.
At the IWC meeting in June 1972, the Commission rejected the
proposed moratorium by a 6-to-4 vote, with four abstentions. How-
ever, it agreed to significant reductions, from 8 to 38 percent, in
the 1973 quotas for catches of fin, sei, and sperm whales in the
North Pacific and Antarctic Oceans. It also extended the current
ban on hunting humpback and blue whales. Other seriously threat-
ened whales—the bowhead, right, and gray whales—continue to re-
ceive protection as well. For the first time, the IWC agreed to set
quotas by individual species, stocks, and in some cases, by sex, to
permit management tailored to specific problems. Further, the Com-
mission agreed in principle to expand its $16,000 annual budget
to about $100,000 and to initiate action for an International Dec-
ade of Whale Research. The Soviet Union and Japan agreed to
allow international observers on their ships to check for compliance
with quotas and other IWC regulations.
Other marine mammals—Tuna fishermen have long known that
dolphins and certain species of tuna often travel together, apparently
in some kind of feeding association. When tuna were only taken by
long lines or by poling, there was little danger that dolphins would be
caught inadvertently. But in the last decade, tuna fishermen have
turned to using huge purse seine nets. Although these nets do catch
more tuna, in tuna fishing by U.S. fishermen in the Pacific, it is
estimated that from 100,000 to 900,000 porpoises are accidentally
drowned each year when trapped in tuna nets. In addition, some
countries, notably Japan, hunt dolphins and porpoises commercially,
principally for human consumption. The result has been a marked
reduction in the number of porpoise schools, and some types of por-
poise may soon face severe depletion unless they are protected. Al-
though no solution to this problem has been developed to date, efforts
are now underway to perfect new fishing methods, including new
types of tuna nets which will kill fewer dolphins.
An estimated 10,000 to 20,000 polar bears now live in the Arctic
region.27 The extent of recent hunting—estimated at about 1,300
animals in 1969 28—has caused concern that annual kills may be too
high. Because these bears live part of the time on pack ice which is on
the high seas, their conservation requires international agreement
among the five governments on whose land or waters polar bears
are found: Canada, Denmark, Norway, the United States, and the
Soviet Union. The Soviet Union has banned sport hunting of polar
bears for some years, both on its soil and on the high seas, and some
limited regulations to protect polar bears domestically are already in
-------
GUIDELINES AND REPORTS 3017
effect in the other four countries. But international agreement is
necessary to fully protect bears on the high seas.
In the fall of 1971, the United States sounded out the four other
governments on the possibility of negotiating a convention to conserve
polar bears. It was hoped that this could be done in time for signature
at the June 1972 U.N. conference. But the effort was delayed because
of the claim by some of these countries that more scientific data on
polar bears must first be collected. New information has been devel-
oped and made available to governments by the International Union
for Conservation of Nature and Natural Resources. Based on this
information, a polar bear convention may be developed by these five
nations in the coming year.
Existing international law does not protect or regulate wildlife on
the Antarctic high seas or on the pack ice. Consequently, this area is
open to sealing by any nation. The Norwegians took about 1,000 seals
there in 1964,29 and they and several other nations are reportedly
considering commercial operations in 1973. The United States has
taken the lead in developing a convention to protect Antarctic seals
at a conference in London in February 1972, and it was signed by the
United States and other nations in June.30
The convention completely protects three species of seals, sets low
limits on three others, and establishes closed seasons and bans har-
vesting in certain areas. While the convention allows harvest of
some seals in the Antarctic, it establishes conservation measures where
none now exists.
spotted Cats—The United States has also moved to protect an-
other threatened group of animals—spotted cats. The continued kill-
ing of these cats for their fur led the Secretary of the Interior in
March 1972 to place several additional species of spotted cats that
are threatened with worldwide extinction on the Endangered Species
List.31 These cats, their parts, or products made from them are al-
lowed into the United States only for scientific, zoological, and
related purposes. The animals involved are the cheetah, ocelot,
margay, tiger cat, leopard, tiger, snow leopard, and jaguar.
By effectively removing sales of furs made from these creatures
from the American market, the economic incentive to hunt them is
greatly reduced.
endangered species convention
The United States and many other nations are working to set up
a meeting to draft an Endangered Species Convention to protect
plant and animal species threatened with extinction. The Conven-
tion, endorsed at the Stockholm conference, will impose strict control
on the export, import, and transnational shipment of these species.
It will both correct the present overexploitation of endangered species
and prevent other plants and animals from being decimated to the
point at which they are officially considered to be endangered.
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3018 LEGAL COMPILATION—GENERAL
world heritage trust
In his 1971 Environmental Message,32 President Nixon indicated
that it would be fitting for all nations to agree to the principle that
some areas of the world are of such unique natural, historical, or cul-
tural value that they are part of the heritage of all mankind and
should be accorded special recognition and protection as part of a
World Heritage Trust. Such an arrangement would not impose lim-
its on national sovereignty but would extend international recogni-
tion to areas that qualify. Technical assistance would be made avail-
able to protect and manage such areas.
A final draft of a convention for a World Heritage Trust, embody-
ing the President's proposals, was completed by a group of experts at
a UNESCO meeting in April 1972 and was endorsed at the U.N,
conference. It will be ready for signature at UNESCO's General
Conference in Paris in late 1972.
The Convention will lend much needed protection and manage-
ment assistance for many of the outstanding areas of the world, which
may be lost or irrevocably destroyed unless the world's nations take
effective action. The Trust could include such natural areas as the
Grand Canyon, the Serengeti Plains of East Africa, and the Galapa-
gos Islands. Historic and cultural sites such as the pyramids, the
Acropolis, Angkor Wat, and Stonehenge might also be included.
conservation of genetic resources
The widest possible diversity of and within species should be main-
tained for ecological stability of the biosphere and for use as natural
resources. The survival of all species, including man, depends upon
the diversity of existing gene pools. But man's exploitation of new
areas is destroying or displacing many important genetic resources.
For example, wild species and primitive domesticated plants are
being lost, especially in areas of the developing world that tradition-
ally have had large numbers of wild varieties. Because of the enor-
mous range of species involved and the dimensions of monocultural
agriculture, international action is called for to preserve the world's
genetic resources. The Stockholm conference recommended that in-
ternational programs be launched to preserve these resources, includ-
ing establishment of a system of natural reserves to protect unique
ecosystems.
conclusion
The first international conference on the global environment and
major bilateral agreements involving the United States highlight the
past year of unprecedented international activity to protect the en-
vironment. These and other accomplishments have built institutional
foundations for future action. The new U.N. Environmental Secre-
tariat and the mechanisms established in the U.S.-Canadian agree-
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GUIDELINES AND REPORTS 3019
ment on the Great Lakes, for example, should furnish the essential
framework for the actions agreed to at Stockholm in June and
in Ottawa last April. Similarly, the U.S. agreement with the Soviet
Union outlines types of actions and a number of specific substantative
areas for pooling the resources of these two world powers. And the
Oslo convention on ocean dumping provides an important regional
step toward the international convention that is needed.
There has been considerable discussion and action regarding the
international economics of environmental protection measures.
OECD has adopted guidelines for its industrialized member nations.
They call for a "polluter pays" approach to financing environmental
controls and for strengthening and maximizing appropriate harmoni-
zation of national standards, all to minimize distortions of trade re-
lationships. The U.N. conference mirrored the desire of the LDC's
that environmental requirements imposed on them or affecting their
exports not impair their economic development or their international
markets. The international economics of the environment is still a
very live issue.
Despite the many still-unresolved environmental problems of
international scope—such as ocean pollution and preservation of
endangered species—the overall assessment of the past year is dis-
tinctly positive. The year's activities have brought the world much
closer to the conventions and other international measures needed
to deal with these problems. In the thorny areas of economics, there
are obviously strong opposing viewpoints on how the overall costs
and economic impacts of environmental protection should be borne,
but there is little basic disagreement on the need to protect and
restore the environment. The road toward global concern and con-
certed actions to make our environment more livable is a long one.
The actions taken in the past year represent major strides. But with
a host of conflicting economic pressures and the complexity and
pervasiveness of the task of restoring the world's environment, success
will require the diligence, patience, and tenacity of all nations.
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3020 LEGAL COMPILATION—GENERAL
footnotes
1. Commission on International Trade & Investment Policy, United States
International Economic Policy in an Interdependent World, pp. 129-139
(1971).
2. Executive K, 92d Cong., 2d Sess. (1972), 118 Cong. Rec. 57428 (1972).
3. International Convention on the Establishment of an International Fund
for Compensation for Oil Pollution Damage, Brussels, Dec. 18, 1971. See
Executive K, supra, note 2.
4. International Convention for the Prevention of Pollution of the Sea by Oil,
London, May 12, 1954 [1961] 3 U.S.T. 2989, T.I.A.S. No. 4900, 327
U.N.T.S. 3.
5. Agreement with Canada on Great Lakes Water Quality, Ottawa, April 15,
1972.
6. Treaty with Great Britain Relating to Boundary Waters Between the
United States and Canada, Jan. 11, 1909, 36 Stat. 2448 (1911), T.S.
No. 548.
7. Agreement on Cooperation in the Field of Environmental Protection with
the Union of Soviet Socialist Republics, Moscow, May 23, 1972.
8. Joint Communique Following Talks Between Richard Nixon, President
of the United States of America, and Luis Echeverria, President of the
United Mexican States (June 15-16, 1972), June 17, 1972.
9. Treaty with Mexico Relating to Utilization of the Waters of the Colorado
and the Tiajuana Rivers and of the Rio Grande, Feb. 3, 1944, 59 Stat.
1219 (1945), T.S. No. 994.
10. Minute No. 218, International Boundary and Water Commission, estab-
lished pursuant to the 1944 Treaty, supra, note 9.
11. Ocean Science Committee of the NAS-NRC Ocean Affairs Board, Marine
Environmental Quality, pp. 7~8 (1971).
12. Id.; Royal Ministry for Foreign Affairs and Royal Ministry of Agricul-
ture, Air Pollution Across National Boundaries: The Impact of the En-
vironment of Sulfur in Air and Precipitation, Sweden's Case Study for the
United Nations Conference on the Human Environment (1971).
13. The Study of Critical Environmental Problems (MIT), Man's Impact
on the Global Environment, pp. 58-59, 68 (1970).
14. S. 2770, 92d Cong., 1st Sess. (1971).
15. Committee on the Challenges of Modern Society, Inland Water Pollu-
tion Project, NATO Document AC/274-D/11, Apr. 13, 1971; Committee
on the Challenges of Modern Society, "Summary Record of a Meeting
held at NATO Headquarters, Brussels, Sept. 8-10, 1971," NATO Docu-
ment AC/274-D/8, Feb. 11, 1972.
16. H.R. 9727, 92d Cong., 1st Sess. (1971).
17. International Convention for the Prevention of Marine Pollution by
Dumping from Ships and Aircraft, Oslo, Norway, Feb. 15, 1972.
18. See note 14, supra, § 5; see § 7 of S. 2770 as passed by the House, 92d
Cong., 2d Sess. (1972).
19. 42 U.S.C. § 1857, et seq.
20. Id., § 1857c-6; S. 2770, supra, note 14, § 306.
21. "Report of the Intergovernmental Meeting on Ocean Dumping," adopted
at London, England, May 31, 1972.
22. See note 1, supra.
23. Committee for Whaling Statistics, Bureau of International Whaling Sta-
tistics, "International Whaling Statistics," p. 14 (1964).
24. S.J. Res. 115, 92d Cong., 1st Sess. (1971) ; H.C. Res. 387, 92d Cong.,
1st Sess. (1971).
25. 35 Fed. Reg. 18319 (1970).
26. International Commission on Whaling, "21st Report of the Commission,"
London (June 1970).
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GUIDELINES AND REPORTS 3021
27. Survival Service Commission, "Notes of the 3d Meeting of the Polar Bear
Specialist Group of the Survival Service Commission of the I.U.C.N.,"
Merges, Switzerland, Feb. 7-10, 1972.
28. Id.
29. Communication from Dr. Niles A. Orisland, University of Oslo, Norway,
May 25, 1972.
30. International Convention for the Conservation of Antarctic Seals, Lon-
don, Feb. 11, 1972.
31. 37 Fed. Reg. 6476 (1972).
32. Council on Environmental Quality, Environmental Quality: Second
Annual Report, p. 302 (1971).
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3022 LEGAL COMPILATION—GENERAL
appendix 1
organization for economic co-operation and develop-
ment—recommendation of the council on guiding
principles concerning international economic aspects
of environmental policies
Adopted by the Council at its 293rd meeting on 26th May, 1972
The Council,
Having regard to Article 5(b) of the Convention on the Or-
ganisation for Economic Co-operation and Development of 14th De-
cember, 1960;
Having regard to the Resolution of the Council of 22nd July, 1970
Establishing an Environment Committee [C(70) 135];
Having regard to the Report by the Environment Committee on
Guiding Principles Concerning the International Economic Aspects
of Environmental Policies [C(72)69];
Having regard to the views expressed by interested committees;
Having regard to the Note by the Secretary-General [C(72)122
(Final)];
I. RECOMMENDS that the Governments of Member countries
should, in determining environmental control polices and measures,
observe the "Guiding Principles Concerning the Internationoal Eco-
nomic Aspects of Environmental Policies" set forth in the Annex to
this Recommendation.
II. INSTRUCTS the Environment Committee to review as it
deems appropriate the implementation of this Recommendation.
III. INSTRUCTS the Environmental Committee to recommend
as soon as possible the adoption of appropriate mechanisms for notifi-
cation and/or consultation or some other appropriate form of action.
annex
guiding principles concerning the international economic
aspects of environmental policies
Introduction
1. The guiding principles described below concern mainly the
international aspects of environmental policies with particular refer-
ence to their economic and trade implications. These principles do
not cover for instance, the particular problems which may arise
during the transitional periods following the implementation of
the principles, instruments for the implementation of the so-called
"Polluter-Pays Principle", exceptions to this principle, trans-frontier
pollution, or possible problems related to developing countries.
-------
GUIDELINES AND REPORTS 3023
a. guiding principles
(a) Cost Allocation: the Polluter-Pays Principle
2. Environmental resources are in general limited and their use
in production and consumption activities may lead to their deteriora-
tion. When the cost of this deterioration is not adequately taken into
account in the price system, the market fails to reflect the scarcity of
such resources both at the national and international levels. Public
measures are thus necessary to reduce pollution and to reach a better
allocation of resources by ensuring that prices of goods depending on
the quality and/or quantity of environmental resources reflect more
closely their relative scarcity and that economic agents concerned
react accordingly.
3. In many circumstances, in order to ensure that the environment
is in an acceptable state, the reduction of pollution beyond a certain
level will not be practical or even necessary in view of the costs
involved.
4. The principle to be used for allocating costs of pollution pre-
vention and control measures to encourage rational use of scarce
environmental resources and to avoid distortions in international
trade and investment is the so-called "Polluter-Pays Principle". This
Principle means that the polluter should bear the expenses of carrying
out the above mentioned measures decided by public authorities to
ensure that the environment is in an acceptable state. In other words,
the cost of these measures should be reflected in the cost of goods and
services which cause pollution in production and/or consumption.
Such measures should not be accompanied by Subsidies that would
create significant distortions in international trade and investment.
5. This Principle should be an objective of Member countries;
however, there may be exceptions or special arrangements, par-
ticularly for the transitional periods, provided that they do not lead
to significant distortions in international trade and investment.
(b) Environmental Standards
6. Differing national environmental policies, for example with re-
gard to the tolerable amount of pollution and to quality and emis-
sion standards, are justified by a variety of factors including among
other things different pollution assimilative capacities of the environ-
ment in its present state, different social objectives and priorities
attached to environmental protection and different degrees of
industrialisation and population density.
7. In view of this, a very high degree of harmonisation of environ-
mental policies wihch would be otherwise desirable may be difficult
to achieve in practice; however it is desirable to strive towards more
stringent standards in order to strengthen environmental protection,
particularly in cases where less stringent standards would not be fully
justified by the above mentioned factors.
8. Where valid reasons for differences do not exist, Governments
should seek harmonisation of enivronmental policies, for instance
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3024 LEGAL COMPILATION—GENERAL
with respect to timing and the general scope of regulation for par-
ticular industries to avoid the unjustified disruption of international
trade patterns and of the international allocation of resources which
may arise from diversity of national environmental standards.
9. Measures taken to protect the environment should be framed
as far as possible in such a manner as to avoid the creation of non-
tariff barriers to trade.
10. Where products are traded internationally and where there
could be significant obstacles to trade, Governments should seek com-
mon standards for polluting products and agree on the timing and
general scope of regulations for particular products.
National Treatment and Non-Discrimination
11. In conformity with the provisions of the GATT, measures
taken within an environmental policy, regarding polluting products,
should be applied in accordance with the principle of national treat-
ment (i.e. identical treatment for imported products and similar do-
mestic products) and with the principle of non-discrimination (ident-
ical treatment for imported products regardless of their national
origin).
Procedures of Control
12. It is highly desirable to define in common, as rapidly as possi-
ble, procedures for checking conformity to product standards estab-
lished for the purpose of environmental control. Procedures for
checking conformity to standards should be mutually agreed so as to
be applied by an exporting country to the satisfaction of the import-
ing country.
Compensating Import Levies and Export Rebates
13. In accordance with the provisions of the GATT, differences in
environmental policies should not lead to the introduction of com-
pensating import levies or export rebates, or measures having an
equivalent effect, designed to offset the consequences of these differ-
ences on prices. Effective implementation of the guiding principles
set forth herewith will make it unnecessary and undesirable to resort
to such measures.
b. Consultations
14. Consultations on the above mentioned principles should be
pursued. In connection with the application of these guiding princi-
ples, a specific mechanism of consultation and/or notification or some
other appropriate form of action should be determined as soon as
possible taking into account the work done by other international
organizations.
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GUIDELINES AND REPORTS 3025
appendix 2
agreement on cooperation in the field of environmental
protection between the united states of america
and the union of soviet socialist republics
The Government of the United States of America and the Gov-
ernment of the Union of Soviet Socialist Republics:
Attaching great importance to the problems of environmental
protection;
Proceeding on the assumption that the proper utilization of con-
temporary scientific, technical and managerial achievements can,
with appropriate control of their undesirable consequences, make
possible the improvement of the interrelationship between man and
nature;
Considering that the development of mutual cooperation in the
field of environmental protection, taking into account the experience
of countries with different social and economic systems, will be ben-
eficial to the United States of America and the Union of Soviet
Socialist Republics, as well as to other countries;
Considering that economic and social development for the benefit
of future generations requires the protection and enhancement of the
human environment today;
Desiring to facilitate the establishment of closer and long-term
cooperation between interested organizations of the two countries
in this field.
In accordance with the Agreement between the United States of
America and the Union of Soviet Socialist Republics on Exchanges
and Cooperation in Scientific, Technical, Educational, Cultural, and
Other Fields in 1972-1973, signed April 11, 1972, and developing
further the principles of mutually beneficial cooperation between
the two countries;
Have agreed as follows:
article 1
The Parties will develop cooperation in the field of environmental
protection on the basis of equality, reciprocity, and mutual benefit.
article 2
This cooperation will be aimed at achieving the most important
aspects of the problems of the environment and will be devoted to
working out measures to prevent pollution, to study pollution and its
effect on the environment, and to develop the basis for controlling
the impact of human activities on nature.
It will be implemented, in particular, in the following areas:
Air pollution;
Water pollution;
Environmental pollution associated with agricultural produc-
tion;
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3026 LEGAL COMPILATION—GENERAL
Enhancement of the urban environment.
Preservation of nature and the organization of preserves;
Marine pollution;
Biological and genetic consequences of environmental pollution;
Influence of environmental changes on climate;
Earthquake prediction;
Arctic and subarctic ecological systems;
Legal and administrative measures for protecting environmental
quality.
In the course of this cooperation the Parties will devote special at-
tention to joint efforts improving existing technologies and develop-
ing new technologies which do not pollute the environment, to the
introduction of these new technologies into everyday use, and to the
study of their economic aspects.
The Parties declare that, upon mutual agreement, they will share
the results of such cooperation with other countries.
article 3
The Parties will conduct cooperative activities in the field of en-
vironmental protection by the following means:
Exchange of scientists, experts and research scholars;
Organization of bilateral conferences, symposia and meetings of
experts;
Exchange of scientific and technical information and documen-
tation, and the results of research on environment;
Joint development and implementation of programs and proj-
ects in the field of basic and applied sciences;
Other forms of cooperation which may be agreed upon in the
course of the implementation of this Agreement.
article 4
Proceeding from the aims of this Agreement the Parties will en-
courage and facilitate, as appropriate, the establishment and devel-
opment of direct contacts and cooperation between institutions and
organizations, governmental, public and private, of the two countries,
and the conclusion, where appropriate, of separate agreements and
contracts.
article 5
For the implementation of this Agreement a US-USSR Joint
Committee on Cooperation in the Field of Environmental Protection
shall be established. As a rule this Joint Committee shall meet once a
year in Washington and Moscow, alternately. The Joint Committee
shall approve concrete measures and programs of cooperation, desig-
nate the participating organizations responsible for the realization of
these programs and make recommendations, as appropriate, to the
two Governments.
Each Party shall designate a coordinator. These coordinators, be-
tween sessions of the Joint Committee, shall maintain contact be-
tween the United States and Soviet parts, supervise the implementa-
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GUIDELINES AND REPORTS 3027
tion of the pertinent cooperative programs, specify the individual
sections of these programs and coordinate the activities of organiza-
tions participating in environmental cooperation in accordance with
this Agreement.
article 6
Nothing in this Agreement shall be construed to prejudice other
agreements concluded between the two Parties.
article 7
This Agreement shall enter into force upon signature and shall
remain in force for five years after which it will be extended for
successive five year periods unless one Party notifies the other of the
termination thereof not less than six months prior to its expiration.
The termination of this Agreement shall not affect the validity of
agreements and contracts between interested institutions and organi-
zations of the two countries concluded on the basis of this Agreement.
DONE on May 23, 1972 at Moscow in duplicate, in the English
and Russian languages, both texts being equally authentic.
FOR THE UNITED STATES FOR THE UNION OF SOVIET
OF AMERICA: SOCIALIST REPUBLICS:
RICHARD NIXON N. V. PODGORNY
President of the United States Chairman of the Presidium of the
of America Supreme Soviet of the U.S.S.R.
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-
.\
- // A.
/'. H-:
Ulltlllfl
I r F i
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GUIDELINES AND REPORTS 3029
the past year —
expanding
federal role
A great deal of progress has been made in the past year in imple-
mentation of the far-reaching Clean Air Amendments of 1970, in
enforcement of other environmental laws, in Congressional consid-
eration—but not passage—of a wide range of environmental legisla-
tion, and in the conclusion of several significant international agree-
ments. The Federal Government is also moving ahead with a variety
of other activities, from protecting wildlife, to acquiring parks and
natural areas, to using Government procurement as an incentive for
greater recycling.
The Environmental Protection Agency (EPA) promulgated a
series of proposed and final regulations spelling out requirements of
the Clean Air Amendments of 1970. The plans of all 50 States and
other jurisdictions to implement EPA's national ambient air quality
standards have been given partial or final approval. Two of the year's
most dramatic developments were EPA's denial of the auto
industry's request for a 1-year extension of the 1975 auto emission
standards and its cancellation of most uses of DDT as of Decem-
ber 31, 1972.
Both the House and the Senate passed comprehensive new water
quality bills. They would greatly increase aid to States and localities
for building waste treatment facilities and would set new goals for
cleanup of our rivers, lakes, and other waters. However, a Congres-
sional conference committee has not yet resolved the differences be-
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3030 LEGAL COMPILATION—GENERAL
tween the two pieces of legislation. The Marine Protection Act, a bill
to regulate ocean dumping of wastes, has also passed both Houses
and awaits final action.
The Justice Department filed numerous criminal and civil actions
under the Refuse Act of 1899 against violators of water quality
standards.
In April 1972, President Nixon and Prime Minister Trudeau of
Canada signed an agreement to cooperate in cleaning up the Great
Lakes, and in May the President signed an environmental agreement
with President Podgorny of the Soviet Union. Chapter 3 of this re-
port, on international aspects of the environment, discusses these
agreements.
The House passed legislation to curb noise pollution and control
the use of pesticides, and the Senate is considering action on these
measures. The Senate passed, and the House is considering, legisla-
tion to expand Federal control over the manufacture and use of toxic
substances. Expenditures to abate pollution from Federal facilities
continue to climb.
Many of the President's 1971 land use control proposals are being
transformed into legislation. They include proposals for a national
land use policy, control of powerplant siting and mined areas, tax
incentives to discourage wetlands development and to preserve his-
toric buildings, and a national policy for the use and management
of Federal public lands.
Momentum is building behind efforts to extend and preserve parks
and wilderness areas and to shield wildlife from man's destructive
ways. More Federal surplus properties have been made available for
State and local parks. New Wilderness Areas have been designated
by the Congress since last year, and others have been identified and
proposed by the President. New legislation has been proposed by the
President to protect endangered species. And the President has
banned the use of poisons to control predators on Federal lands.
This chapter describes the significant Federal achievements, devel-
opments, and initiatives of the past year. It also assesses the present
status of organizational reform and Congressional activity. The chap-
ter includes information on activities occurring up to July 1, 1972.
controlling pollution
air quality
implementing the 1970 clean air amendments—The Federal
program to enhance air quality moved forward as EPA and the States
began to implement their numerous regulatory responsibilities under
the comprehensive Clean Air Amendments of 1970.1 The broadest
effort centered on the submission, review, and approval of State plans
to implement national ambient air quality standards. There were
other important developments concerning the 1975-76 automobile
emission standards, low emission vehicles, hazardous air pollutants,
stationary sources of air pollution, and lead in gasoline.
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GUIDELINES AND REPORTS 3031
State plans—In April 1971, EPA established primary and sec-
ondary national ambient air quality standards for six of the most
widespread air pollutants—particulate matter, sulfur oxides (SOX),
carbon monoxide (CO), hydrocarbons, oxides of nitrogen (NOX)
and photochemical oxidants.2 The Glean Air Amendments call on
States to develop plans to achieve, within 3 years after their approval
by EPA, primary standards to protect public health. Secondary stand-
ards—to safeguard aesthetics, vegetation, and materials—are to be
achieved within a reasonable time period.
States submitted their plans early in 1972.
On May 31, 1972, EPA approved 14 plans and partially approved
41 plans3 covering all States and five other jurisdictions.
Eighteen States were given 2-year extensions to meet primary
standards. These States encompass urban areas with severe pollution
from automobiles. EPA also granted 13 States 18-month extensions—
to July 30, 1973—to submit plans for implementing secondary
ambient air quality standards for 31 air quality control regions.
EPA's decisions have been challenged in the courts by both industry 4
and environmental groups.5
On May 30, 1972, the day before EPA's deadline to approve or
disapprove State implementation plans, a Federal district court
ruled that the Administrator could not approve a plan that would
allow significant deterioration of existing air quality in areas where
the air already is cleaner than under the standards set by EPA.6 The
basic issue involved is whether, under the 1970 amendments, EPA
must require States to maintain the quality of air that is already
clean or whether States must merely prevent ambient pollution levels
from exceeding Federal standards. The court's order did not prevent
EPA from announcing its actions on State plans, but required the
Administrator to revise EPA's regulations on this matter, and to
advise States of any additional measures needed to prevent deteriora-
tion of clean air. EPA has appealed the decision.
Among the most challenging of the standards that States must
meet by the 3-year deadline are those for automotive pollutants—
CO, hydrocarbons, and NOX. Although the Federal Government
has been regulating new automobile exhaust emissions since the 1968
model year and the regulations have been growing progressively
more rigorous, the stringent emission standards set by the 1970
amendments will not take effect until the 1975 and 1976 model years.
To meet ambient standards, some States will need to abate the
substantial pollution which results from emissions of older automo-
biles, which do not fall under Federal standards. Many States sub-
mitted plans calling for strict controls over vehicular traffic in cities
and for expanding mass transit to help reach primary ambient air
quality standards.
1975-76 auto emission standards—The 1970 amendments re-
quire 1975 standards for new car emissions of CO and hydrocar-
bons to be 90 percent below the 1970 standards. They also require
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3032 LEGAL COMPILATION—GENERAL
the 1976 standard for NOX emissions to be 90 percent below 1970
emission levels, which were uncontrolled. However, the law allows
a 1-year extension if the EPA Administrator determines that such an
extension is essential to the public interest or public health and wel-
fare of the United States; that all good faith efforts have been made
to meet the standards for which the extension has been requested;
that the applicant has established that effective control technology,
processes, operating methods, or other alternatives are not available
or have not been available for a sufficient period of time to achieve
compliance prior to the effective date of the standards; and that a
study and investigation by the National Academy of Sciences (NAS)
have indicated that such alternatives are not available to meet the
standards.
In March and April of 1972, A. B. Volvo, International Harvester
Co., Chrysler Corp., Ford Motor Co., and General Motors Corp.
applied to EPA to suspend the 1975 emission standards for 1 year.
On May 12, 1972, after 3 weeks of public hearings, the Administra-
tor denied the suspension requests.7 He acknowledged that the stand-
ards were difficult for the companies to meet but stated that they
had failed to establish, as required by law, that the necessary tech-
nology does not exist. Pointing to progress in building and using
catalytic systems to control emissions, he concluded that the neces-
sary technology may well be available for 1975 model cars. U.S. auto
manufacturers have appealed his decision in a Federal court of
appeals.8
regulating lead and phosphorous in gasoline—In February
1972, EPA issued proposed regulations to make one grade of lead-
free and phosphorous-free gasoline generally available by July 1, 1974.
The agency also called for a phased reduction in the lead content of
regular and premium gasolines.9 Lead in gasoline fouls the catalytic
emission control devices likely to be used to meet the 1975-76 stand-
ards for CO, hydrocarbons, and NOX. EPA's regulations aim to
assure that a gasoline compatible with such devices will be ready, as
well as to protect public health.
Specifically, the proposed regulations provide that one grade of
gasoline of not less than 91-octane shall be lead-free and phosphorous-
free after July 1, 1974. They would also require that the lead content
of higher octane regular and premium grades be limited to a maxi-
mum of 2.0 grams per gallon after January 1, 1974, 1.7 grams after
January 1, 1975, 1.5 grams after January 1, 1976, and 1.25 grams
after January 1, 1977. The proposed regulations define lead-free as a
maximum 0.05 gram per gallon and phosphorus-free as a maximum
0.01 gram per gallon.
other motor vehicle pollution regulations—The 1970 amend-
ments require the Government to purchase certified low emission
vehicles. However, their cost cannot exceed 150 percent—200 per-
cent if the vehicle is powered by an inherently low-polluting propul-
sion system—of the cost of the vehicle that they are to replace. In
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GUIDELINES AND REPORTS 3033
October 1971, EPA published final regulations spelling out conditions
under which the Federal Government will buy low emission vehicles
at a premium price to stimulate development of emission control
systems that go beyond what current standards require.10 The vehicles
must be found by EPA to have low emissions and must be certified
by an interagency board as a suitable substitute for a,conventional
vehicle. In addition to meeting 1973 and 1974 automotive emission
standards, the EPA regulations currently require achievement of
either 1975 standards for CO and hydrocarbons or 1976 standards
for NOX.
Auto makers are now required to provide instructions for properly
maintaining air pollution control systems to assure that vehicles con-
tinue to comply with Federal emission standards throughout their
useful life. In its final regulations on maintenance, EPA defined
useful life as 5 years or 50,000 miles for light-duty vehicles and heavy-
duty gasoline engines, and 5 years or 100,000 miles for heavy-duty
diesel engines.11 The regulations require the instructions to include
information on the exhaust, crankcase, and evaporative-emission
control system, as well as methods of identifying and correcting
malfunctions in the system.
developing a clean car—In cooperation with EPA's Advanced
Automotive Power Systems program and with some EPA funding,
the U.S. Army has developed two prototype stratified charge engines
which have met the 1975-76 emission levels in initial tests. The test
engines power a jeep developed under contracts with Texaco and
Ford Motor Co. Tests are continuing on these vehicles to determine
if satisfactory achievement of emission reductions can be maintained
through the required 50,000-mile durability test period.
The stratified charge engine resembles in many respects a conven-
tional internal combustion engine—with certain differences in the
combustion chamber design and the fuel injection system. The engine
in the test vehicles are 72 horsepower, have four cylinders, and use 91-
octane unleaded gasoline with an exhaust gas recirculation system and
a catalytic muffler. Although it is the cleanest engine system tested to
date, its durability remains to be established.
EPA is also supporting the development of three types of Rankine
cycle engines (including a steam engine) as very low emission alter-
natives to the standard internal combustion engine. In addition, EPA
is helping develop solutions to technical problems of the automotive
gas turbine engine, one potential replacement for the internal com-
bustion engine.
The Urban Mass Transit Administration (UMTA) of the Depart-
ment of Transportation (DOT) is sponsoring the development and
demonstration in passenger service of steam powered transit buses
in Oakland, Calif. The city of Lansing, Mich., under a grant from
UMTA, is purchasing six electric battery powered buses for its
municipal bus system.
-------
3034 LEGAL COMPILATION—GENERAL
Through its dual fuel test program, the General Services Adminis-
tration (GSA) has moved to reduce pollution from automobile emis-
sions. Dual fuel is a unique method of powering vehicles with either
regular gasoline or low polluting gaseous fuels, including compressed
natural gas (CNG), liquefied natural gas (LNG), and liquid petro-
leum gas (LPG). Tests indicate that operating on gaseous fuels can
trim noxious vehicular emissions by as much as 87 percent from emis-
sions with gasoline. This reduction often meets or exceeds 1975
Federal new car standards for all emissions except nitrogen oxides.
GSA now has close to 1,250 vehicles converted to dual fuel across
the country. This program could demonstrate that clean burning
gaseous fuel use will be practicable for fleet operations in urban areas
and will provide side benefits by reducing engine maintenance costs.
aircraft smoke reduction—The aircraft industry is cutting smoke
pollution from existing airplane engines. The industry entered a
voluntary agreement in 1970 with the Department of Health, Edu-
cation, and Welfare (HEW), which then administered the air pollu-
tion control program, and with DOT to retrofit the widely used
JT8D jet engines with smoke reduction devices. Over 3,000 Boeing
727's and 737's and Douglas DC-9 aircraft engines are involved.
As of March 31, 1972, 2,625 engines, or 78 percent of the total, had
been retrofitted. The schedule calls for the program to be substan-
tially completed by the end of 1972. Retrofit involves installing new
combustors for more efficient burning of fuel in the engines. This in
turn significantly reduces particulate matter, carbon monoxide, and
hydrocarbon emissions. All JT8D engines produced since February
1970 have been equipped with smokeless combustors.
Stationary sources—Late in 1971, EPA spelled out final air pollu-
tion performance standards for fossil fuel steam generators, sulfuric
and nitric acid plants, portland cement plants, and large incinera-
tors.12 The standards apply to new plants and to existing plants
that increase or alter the nature of their emissions. They limit
emissions for particulate matter, sulfur dioxide, nitrogen oxides, and
sulfuric acid mists, as well as visible emissions. EPA's stationary source
standards have been challenged in court by industry 13 for, among
other things, EPA's alleged failure to comply with section 102(2) (C)
of the National Environmental Policy Act (NEPA)." EPA has also
proposed emission standards for three hazardous air pollutants—
asbestos, beryllium, and mercury—the first such standards set under
the 1970 Clean Air Amendments.15 Public hearings on the proposed
standards were held early in 1972, and a final decision is expected
early in 1973.
enforcement—In its first use of the enforcement authority in section
113 of the Clean Air Act, EPA moved against the alleged violation
of Delaware's air quality implementation plan by the Delmarva
Power and Light Co. of Delaware City, Del. The company allegedly
uses 6.5-7.0 percent sulfur fuel in producing electricity and steam.
In 1969, according to EPA, Delmarva emitted 71,630 tons of sulfur
-------
GUIDELINES AND REPORTS 3035
dioxide into the air, equivalent to 37.7 percent of total sulfur dioxide
emissions in New Castle County.
To comply with the State's approved implementation plan, the
utility would have had to switch to 3.5 percent sulfur fuel by Jan-
uary 1, 1972, and then cut down to 1 percent by January 1973. The
company sought a variance from the Delaware plan, but its request
was denied by the State following a hearing. Delmarva got a State
court order preventing the State from enforcing its implementation
plan pending the court's review. It was at this point that EPA entered
the case, and on March 6, EPA issued a violation notice. On April 17,
EPA issued an order requiring compliance by May 1. Enforcement
of EPA's order has been stayed pending the outcome of an appeal
heard in Federal court on June 23,1972.le
In December 1971, EPA invoked its emergency powers under
the Clean Air Act to restrain industrial activity during an air pollu-
tion episode in Birmingham, Ala. A combination of climatic condi-
tions and emissions from industrial sources had created the emergency
condition. Pollution was measured at a level of 771 micrograms of
particulate matter per cubic meter of air in 1 day and 758 micro-
grams the following day. EPA's particulate matter "alert" level is a
24-hour average measurement of 375 micrograms; the "warning"
level is 625 micrograms; and the "emergency" level is 875 micro-
grams. The emergency level is considered a peril to health. Section
303 of the Clean Air Act grants EPA emergency powers to seek re-
straining orders to halt air pollution when there is "an imminent and
substantial danger to the health of persons"—which EPA considered
the case in Birmingham.
The Jefferson County Department of Health, having been unsuc-
cessful in getting the industries to curtail operations, invited an EPA
team of scientists and lawyers, accompanied by representatives of the
Department of Justice, to come to Birmingham. Acting under sec-
tion 303, at EPA's request, the Justice Department obtained a tem-
porary restraining order from the U.S. District Court in Birmingham
requiring 23 local industries to halt their emissions of air pollutants.17
attack on sulfur Oxides—In his Environmental Message of Feb-
ruary 8, 1971, the President pointed out that sulfur oxides are among
the most damaging air pollutants. They cost society billions of dol-
lars annually in damage to human health, materials, vegetation,
and property. At that time the President said a charge on emissions
of sulfur into the atmosphere would be a major step in applying
the principle that the costs of pollution should be included in the
price of the product. On February 8, 1972, after further study by
the Council on Environmental Quality (CEQ), the Treasury De-
partment, and EPA, the President submitted the Pure Air Tax Act
of 1972 to the Congress.18
The proposed bill would levy a tax, beginning with calendar year
1976, on emissions of sulfur into the atmosphere. The tax rate for
1976 would be based on 1975 air quality, the year in which the Clean
-------
3036 LEGAL COMPILATION—GENERAL
Air Amendments require compliance with primary ambient air qual-
ity standards. In years after 1976, the tax rate—applied to that year's
emissions or fuel purchases—would be determined by a region's air
quality in the preceding year. The tax would be imposed directly on
the sulfurous emissions of those sources large enough to measure and
monitor their emissions. Emitters of small amounts would pay the
tax on the sulfur content of their fuel.
In regions failing to meet both the national primary and secondary
air quality standards for sulfur oxides the tax rate would be 15 cents
per pound of sulfur emitted into the atmosphere. The tax would be
10 cents in regions where there was no violation of the primary
standards during the preceding calendar year but the secondary
standards were violated. There would be no tax in regions where
neither the primary nor secondary standard were violated.
The Pure Air Tax would spur reduction of sulfur oxides to meet
both primary and secondary standards. It should stimulate firms to
develop and install control technology and to use clean fuels as
quickly as possible to minimize their tax liability. Although most State
implementation plans provide for meeting both standards at the
same time, deadline extensions are possible. The proposed sulfur
oxides tax creates a strong financial incentive for companies to meet
secondary standards by 1975, or as soon thereafter as possible, speed-
ing the drive to achieve higher air quality.
water quality
pending water quality legislation—The President proposed com-
prehensive water quality legislation in February 1970 and again in
1971. These proposals, as revised in 1971, are detailed in last year's
Annual Report.19 After extensive hearings the Senate and House, in
November 1971 and March 1972 respectively, passed comprehensive
water quality bills that are now being considered by a joint confer-
ence committee.20
The Senate and House bills both embody many features proposed
by the President: extending the Federal-State program to all naviga-
ble waters; setting effluent standards for individual facilities;
making mandatory the use of the best available technology in new
facilities; issuing stringent Federal standards for toxic discharges;
strengthening and streamlining Federal enforcement procedures;
levying stiff fines; letting citizens bring legal actions to enforce stand-
ards; and requiring self-sufficient municipal financing of treatment
plants once the current backlog of municipal needs has been met.
Both bills also give EPA new legislative authority to continue the
important nationwide permit program which the President initiated
administratively in December 1970 21 under the Refuse Act of 1899,22
the only authority then available.
Despite their similarity on many points, the Senate and House bills
differ in some important respects. Foremost among these, they dis-
agree on the basis for establishing effluent limitations and on how
-------
GUIDELINES AND REPORTS 3037
much the Federal Government will control the permit program after
State permit programs have been approved. The Senate bill would
base effluent limitations on levels of available technology—"best prac-
ticable" technology by 1976 and "best available" by 1981—with a
"no discharge" policy to take effect by 1985. Accepting the 1976 goal,
the House bill provides that no action will be taken on the 1981 and
1985 goals until the National Academies of Engineering and Science
have made a 2-year study of the economic, social, and environmental
effects of achieving or not achieving the goals. Action on these goals
could only be taken if a new law were passed after the submission of
the Academies' report. The House bill would allow EPA to grant a
2-year extension to the 1976 deadline to individual dischargers under
certain narrow conditions, while the Senate bill does not provide for
such an extension. For the permit program, the Senate bill allows
a Federal veto of individual permits issued by States with approved
permit programs, while the House bill seeks to give States more lati-
tude on individual permits. The House bill also includes provisions
that industrial dischargers who voluntarily install best available tech-
nology before 1 year following the National Academies' report will
have no more stringent effluent standard imposed upon them for
either 12 years or the period of amortization of a facility, whichever is
shorter; thermal discharges are to be the subject of specific regulation
apart from the general regulatory authority of the Act; and citizen
standing to sue the Government would be more limited than provided
by the Senate bill.
pending ocean dumping legislation—Based on a CEQ report
in October 1970 the President called for a comprehensive national
policy on ocean dumping.23 In February 1971 he recommended
legislation to ban unregulated dumping and to strictly limit disposal
of any materials harmful to the marine environment. This legisla-
tion would require a permit from the Administrator of EPA to trans-
port and dump any wastes originating in the United States into
estuaries, the Great Lakes, and the oceans anywhere in the world.
It would prohibit dumping by U.S. and foreign nationals in our terri-
torial waters and in the contiguous zone—out to the 12-mile limit.
The Administrator would also be empowered to ban ocean dump-
ing of certain materials and to designate safe disposal sites for others.
Transportation for dumping in violation of these regulations, dump-
ing without a permit, or dumping in violation of a permit would be
subject to civil and criminal penalties. The Coast Guard would be
given authority to monitor compliance and enforce the regulations.
Both the House and Senate have passed bills largely incorporating
the President's proposals.24 A joint House and Senate conference com-
mittee has resolved differences between the two versions.
Other proposed legislation.—The President has proposed new legis-
lation to deal with two important potential or actual sources of
water pollution that are inadequately covered under the existing Fed-
-------
3038 LEGAL COMPILATION—GENERAL
eral Water Pollution Control Act—sediment control and land dis-
posal of toxic wastes.
The Sediment Control Act25 would install controls over non-
agricultural land-disturbing activities, primarily building and road
construction. The urban concentration of such activities and
their substantial per-acre yield of sediment often lead to par-
ticularly severe water quality problems. The Act calls upon States
to implement a sediment control regulatory program, including per-
mits where appropriate, to control land-disturbing activities that
prevent attainment of water quality standards. EPA would be au-
thorized to issue and enforce appropriate regulations in States that
fail to implement approved programs and would be empowered to
enforce State regulations when a State itself fails to do so.
As disposal of toxic substances directly into surface waters and the
oceans is curbed, the land becomes the last receptacle for disposal
of such wastes. Some highly toxic wastes already are being injected
into the ground in deep wells, creating potential hazards for future
years. The Toxic Waste Disposal Control Act,26 calls for a nationwide
program to regulate both land and underground disposal of wastes
hazardous to human health. The Act would authorize the Adminis-
trator to set regulations on locations and procedures for toxic waste
disposal and would require State permit and regulatory programs.
Except in cases where a State fails to meet EPA guidelines, the pro-
gram would be administered by the States. In those cases EPA would
issue the necessary regulations.
marine sanitation regulations—In June 1972, EPA published final
standards laying out a number of steps to curtail discharges
of vessel sewage into U.S. navigable waters.27 The standards
cover approximately 500,000 recreational boats as well as Navy
and merchant ships. Coast Guard regulations for enforcing the stand-
ards will be published early in 1973. EPA's standards require that
2 years from the date of the Coast Guard regulations new vessels with
marine toilets must also be equipped with holding tanks to retain
sewage on board for discharge into shore-based pumping stations and
subsequent disposal into municipal treatment systems. Existing vessels
will have 5 years from the same date to comply with the standards and
under certain circumstances can substitute on-board primary treat-
ment devices for holding tanks. States may completely prohibit vessel
discharges immediately, if EPA approves. Thirty-one States now have
some kind of controls over vessel sewage.
oil and hazardous substances spills—In 1971, the Coast Guard
received 8,496 reports of polluting discharges in U.S. waters com-
pared to 3,711 reported spills in 1970.28 The great difference in the
number of reported spills is the result of new reporting requirements.
Although the number of spills reported increased substantially, the
volume of spillage dropped sharply from approximately 15 million
gallons in 1970 to about 9 million gallons in 1971. The Coast Guard
-------
GUIDELINES AND REPORTS 3039
is currently analyzing the data to determine the reasons for the de-
crease in spillage. See Table 1 for further 1971 spill data.
A number of Federal agencies act to prevent oil spills and to cope
with them when they do occur. The National Oil and Hazardous
Substances Pollution Contingency Plan, which was revised and pub-
lished in August 1971, embodies procedures for coordinated Federal
action against spills through implementation of regional and local
contingency plans.29 Of the 8,496 spills reported in 1971, 3,518 re-
sulted in activation of spill containment procedures set out in the
plan. Major cleanup and disposal actions were involved in 1,132
cases.
In December 1971, the Coast Guard issued notice of proposed
regulations to tighten standards for the design, construction, and
operation of vessels and of bulk oil transfer facilities,30 The regula-
tions would reduce accidental or intentional release of oil into U.S.
waters during normal vessel operations and transfer operations, and
would establish construction standards designed to limit oil outflows
from minor accidents.
federal grants for waste treatment facilities—The greatest single
category of Federal spending for environmental quality is for con-
structing or improving waste treatment plants and interceptor sewers
to convey wastes to the plants.
For fiscal year 1972, the President proposed $2 billion for water
pollution control construction grants. However, the Congress appro-
priated only $1.65 billion. The largest single grant went to Chicago
and totaled more than $21 million.
enforcement
the refuse act—The Refuse Act of 1899,31 which outlaws the
discharge of pollutants other than municipal sewage into navigable
waters without a permit from the Army Corps of Engineers has
been increasingly used for water pollution control enforce-
ment. Criminal and civil suits under the Refuse Act have
continued to mount. During the first 6 months of fiscal year 1972, 81
criminal actions were initiated. During the same period, 130 convic-
tions were won, primarily in cases that were initiated in previous
years. (See Table 2 for comparative data on Refuse Act and other
enforcement actions.)
The use of civil injunctions has also been an important enforce-
ment tool against major industrial polluters. During the first 6 months
of fiscal year 1972, 52 civil suits were filed.
A Federal court injunction issued against Armco Steel Corp. in
September 1971 halted the discharge of cyanide, phenol, and other
hazardous substances into the Houston Ship Channel and imposed
strict cleanup requirements on the company.32 Also in September
1971, the Florida Power and Light Co. agreed to the entry of a con-
sent decree requiring it to construct a cooling system and to take
other steps to abate the thermal pollution of water by its fossil fuel
and nuclear powerplants. This settlement concluded the first civil
injunction action initiated under the Refuse Act.33
-------
3040
LEGAL COMPILATION—GENERAL
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-------
GUIDELINES AND REPORTS 3041
•" '••• •• •
I*)***'-' • , ".'>;>, '•' * '"• '•''".' ,•' '- '-'?". ?&:>s
Water Pollution Enforcement Actions ; f ^
1967 1968 1969 1970
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56 *i 48 129 191 ,84;. .V.,'
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Sources: EPA, Department of Justice.
In December 1970, the President announced a program to con-
trol water pollution from industrial sources by requiring firms and
individuals to file for Refuse Act permits. Since then^ approximately
20,000 applications have been received from discharges accounting
for more than 90 percent of industrial effluents. To get a permit, an
industrial discharger must specify the type and amount of effluent he
intends to discharge and, if the effluent does not meet applicable
water quality standards, an abatement plan and compliance sched-
ule. Violators of water quality standards or compliance schedules, as
well as dischargers without permits, are liable to enforcement action.
As of June 1, 1972, 2,559 applications had been processed by the
Corps, reviewed by EPA, and referred to appropriate State agencies
for certification. Because of the complexities of the program, many
incomplete forms had to be returned to applicants for further
information.
On December 21, 1971, the U.S. District Court for the District of
Columbia in the case of Kalur v. Resor,34 enjoined further granting
of permits until Corps regulations were amended to require environ-
mental impact statements under section 102(2) (C) of NEPA.35
The court also held that permits could not be issued under the Act
for discharges into nonnavigable tributaries of U.S. navigable waters.
The permit program, which calls for EPA's concurrence on water
quality aspects, had been excluded from environmental impact state-
ment requirements in accordance with section 5(d) of CEQ's guide-
lines 36 and the legislative history of NEPA. (See Chapter 7, on the
National Environmental Policy Act, for a discussion of the Kalur
decision.)
-------
3042 LEGAL COMPILATION—GENERAL
On May 30, 1972, another court decision further complicated the
use of the Refuse Act to control water pollution. The Third Circuit
Court of Appeals, in the case of U.S. v. Pennsylvania Industrial
Chemical Corp. (PICCO),37 ruled that the company could not be
held criminally responsible under the Refuse Act for discharges prior
to the existence of a Federal permit program. Because, under Kalur,
permits are presently unavailable, the PICCO ruling may mean that
prosecution of current polluters is barred. The combined effect of
both decisions has been to impede implementation of the Refuse Act.
In order to resolve the issues, EPA has asked the Department
of Justice to seek a rehearing in the PICCO case and an expedited
appeal in the Kalur case.
other enforcement authorities—The Refuse Act is an impor-
tant mechanism for enforcing water quality standards because it per-
mits swifter and more clear-cut action against polluters than does the
Federal Water Pollution Control Act (FWPCA) ,38 The two present
FWPCA enforcement mechanisms for pollution abatement are lim-
ited and cumbersome. The first is a three-step procedure starting
with a conference of Federal, State, and interstate water quality
agency representatives, and followed, if necessary, by a public hear-
ing, and finally court action.
The Federal Government cannot call a conference, except at
State request, unless pollution from one State damages either water
quality in another State or if shellfish are endangered. The enforce-
ment conference is a mechanism for bringing to light widespread and
longstanding pollution situations in a significant section of a river
basin, for example. After the conclusion of a conference, which is
similar to a public hearing, recommendations for action are drawn
up and transmitted to the States by the EPA Administrator. If action
is not forthcoming, the Administrator may reconvene the conference
or call a formal public hearing. If action is still not forthcoming after
a hearing, the Federal Government can then go into court.
Six new enforcement conferences were called by EPA in fiscal
year 1972. One covered pollution of Pearl Harbor at Honolulu,
Hawaii, and was called at Federal initiative because of damage to
shellfish. Two covered pollution of the Ohio River and its tributaries
in Pennsylvania. West Virginia, and Ohio. Other conferences ad-
dressed: mercury pollution of the waters of western South Dakota;
damage to shellfish from pollution of Mount Hope Bay in Massa-
chusetts and Rhode Island; and pollution of the Savannah River in
Georgia and South Carolina. EPA also reconvened and convened
additional sessions of seven conferences in fiscal year 1972 covering
pollution in Dade County, Fla.; the Monongahela River in West
Virginia, Maryland, and Pennsylvania; Boston Harbor, Mass.; Gal-
veston Bay, Tex.; Mount Hope Bay in Massachusetts and Rhode
Island; the Escambia River and Bay in Alabama and Florida; and
the Colorado River in several Western States.
-------
GUIDELINES AND REPORTS 3043
The second enforcement procedure under the FWPCA, also appli-
cable primarily to interstate pollution, calls for a 180-day notification
both to the violator of water quality standards and to interested
parties, followed by court action if necessary. This process, although
much faster, is not capable of the same geographic scope as the con-
ference. The 180-day notice gives violators the opportunity to comply
voluntarily. In the first 9 months of fiscal year 1972, EPA served 180-
day notices to 82 entities—26 to industries and 56 to municipalities.
One of the most publicized enforcement actions under the 180-day
notice procedure was against the Reserve Mining Co. of Minnesota.
After an enforcement conference, begun in 1969, failed to produce
results acceptable to EPA, the agency gave Reserve a 180-day notice
in April 1971. EPA alleged that Reserve's daily discharges into Lake
Superior—67,000 tons of taconite tailings from its iron ore process-
ing operations, a volume many times greater than the total volume
of solids carried into the lake by its tributaries—violated water
quality standards. EPA concurrently employed a consulting firm to
determine if alternative methods of total or partial land disposal
were feasible. The consultant reported five alternatives, all of them
rejected by Reserve. Because the 180-day notice also failed to produce
a remedy, EPA requested the Department of Justice to bring court
action against Reserve. On February 17, 1972, the Department filed
suit in a Federal district court requesting a schedule from the com-
pany on its plans to abate its discharges into Lake Superior. On
May 4, 1972, the Department added to its complaint that Reserve's
discharges constituted a public nuisance abatable through Federal
common law. (See discussion of the Supreme Court decision in Illi-
nois v. Milwaukee later in this chapter.)
cleanup of federal facilities
Last year's Annual Report traced the progress of the Federal Gov-
ernment's efforts to clean up air and water pollution from its own
facilities. This is a direct outgrowth of extensive efforts triggered by
Executive Order 11507, issued by President Nixon on February 4,
1970.39 That Order directs Federal agencies to complete or to have
underway by December 31, 1972, actions to achieve compliance with
existing air and water quality standards.
Since that Executive Order was issued, Federal agencies have been
working hard to identify pollution problems and to plan, design, and
initiate necessary abatement projects for facilities under their juris-
diction. In fiscal year 1971, the first year of the accelerated cleanup
program, the President's budget devoted $115.7 million for such proj-
ects—compared to an average of $52 million for the 3 prior fiscal
years. In fiscal year 1972, $280.4 million was budgeted. And the Pres-
ident has asked the Congress for $314.6 million for fiscal year 1973.
Federal agencies are involved in a range of activities to control
pollution from their facilities. Among them are construction or
modification of waste treatment plants, fuel conversion or stack gas
-------
3044 LEGAL COMPILATION—GENERAL
cleaning for air pollution control, and cooperative projects with
States and communities for solid or liquid waste disposal.
At Eglin Air Force Base in Florida, the Air Force has leased 150
acres of land to Okaloosa County for a pilot spray irrigation project
for sewage effluent disposal. This spray irrigation treatment will halt
direct discharges into Choctawhatchee Bay.
The Defense Supply Agency is studying the feasibility of using re-
cycled lubricating oils in Government vehicles and equipment. Of the
1.25 billion gallons of used lubricating oil generated annually from
all sources, an estimated 750 million gallons are dumped into land-
fills, burned, or allowed to drain into sewers.
The Navy is converting its ship boilers to enable the use of Navy
distillate fuel (a clean^burning light fuel oil) rather than the conven-
tional Navy special fuel oil (a heavy residual fuel). This conversion
program will result in major reductions in the discharge of particu-
late matter and sulfur oxides.
Section 306 of the Clean Air Act of 1970, specifies that no Fed-
eral agency may enter into any contract to procure goods, materials,
or services when the contract is to be performed at a facility con-
victed of intentionally violating clean air standards. This prohibition
continues until the Administrator of EPA certifies that the condition
causing the conviction has been corrected.
To implement section 306, the President issued Executive Order
11602 on June 30, 1971.40 It requires the Federal Government to use
its procurement activities, grants, and loans to achieve air pollution
control goals. EPA is developing regulations to guarantee that Fed-
eral financial assistance goes only to those who comply with clean
air requirements. The pending legislation to revise the Federal Water
Pollution Control Act would place similar requirements on Federal
agencies contracting with firms violating water quality standards.
environmental health
pest control—EPA has stepped up administrative actions to pro-
tect public health and the environment from harmful pesticides.
The President has proposed legislation, now being considered by the
Congress, to more effectively regulate chemicals used for pest control
and has ordered administrative actions to promote use of integrated
pest management.
regulatory actions—The Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA)41 requires that all pesticides shipped in
interstate commerce be registered with EPA. The agency may cancel
a registration when the label of the product, if complied with, is
inadequate to prevent injury to "man and other vertebrate animals,
vegetation, and useful invertebrate animals." A registrant can appeal
EPA's cancellation notice through a complicated process that may
include public hearings and review by a scientific advisory group.
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GUIDELINES AND REPORTS 3045
Suspension of a pesticide registration which, unlike cancellation, stops
interstate shipments immediately can be initiated only when the prod-
uct presents an "imminent hazard."
In 1971 EPA initiated registration cancellation proceedings under
FIFRA against DDT, Mirex, 2,4,5,-T, aldrin, and dieldrin. After
extensive hearings, on June 14, 1972, EPA banned nearly all uses
of DDT.42 The Administrator said that the continued use of DDT
over the long term, except for limited uses, posed an unacceptable
risk to man and the environment. Because of DDT's persistence
in aquatic and terrestrial environments, its insolubility in water, and
its propensity to accumulate in the food chain and to be passed
up to higher forms of life, the Administrator found that no warn-
ing, even if followed, could prevent injury to man and other ani-
mals. EPA's order will not be effective until December 31, 1972,
to allow time for training people in the application of substitutes,
most of which are highly toxic but which degrade more quickly. An
appeal of the order has been filed by DDT manufacturers 43 seeking
revision of EPA's decision. The Environmental Defense Fund has also
filed an appeal44 seeking an immediate ban and reversal of EPA's
decision to consider permitting use of DDT on three minor crops.
The EPA Administrator has limited the use of Mirex against the
fire ant,45 an insect that inhabits certain parts of the Southern United
States. Not only do fire ants have a painful bite, but they also build
mounds which interfere with agricultural machinery. EPA's decision
prohibits aerial spraying and broadcast application of Mirex in
coastal counties and bans its use near water areas generally. Ground
broadcast application by private users is allowed if the equipment
used is calibrated to deliver recommended label dosages.
An advisory group report on 2,4,5-T found that the herbicide itself
is not a substantial health hazard but that, without proper produc-
tion quality control, it can contain excessive levels of a dangerous
impurity. EPA is reviewing the findings of the report and is proceed-
ing with public hearings.
On June 26, 1972, EPA decided to continue cancellation proceed-
ings against all registered uses of aldrin and dieldrin, with the except-
tion of deep-ground insertions for termite control, dipping of roots
and tops of nonfood plants, and mothproofing of woolen textiles and
carpets.46 An advisory group report on aldrin and dieldrin had rec-
ommended banning aerial application and foliar spraying of these
pesticides and would have curbed certain uses around the home and
near streams, ponds, and waterways, but said that seed treatment
and direct application to soils need not be halted. Producers and
formulators of these pesticides are expected to seek a review of EPA's
decision.
In the fall of 1971, EPA canceled the registration of three mercury
based pesticides used to kill algae in swimming pools and in a variety
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3046 LEGAL COMPILATION—GENERAL
of industrial situations.47 EPA took the action after its original no-
tice of cancellation was reviewed by a scientific advisory committee
which found that continued use would emperil health. EPA's decision
was not appealed. Following up on the mercury hazard, EPA on
March 24, 1972, suspended and cancelled interstate shipment of 12
mercury-based products used for a variety of farm, garden, and
antimildew purposes. EPA acted on the grounds that continued sales
would endanger health and lead to serious environmental contamina-
tion through buildup of mercury in the food chain.48 At the same
time, EPA issued registration cancellation notices for other mercury-
based pesticides and antimildew products—some 750 in all. The sus-
pensions and cancellations cover mercury used in paint, agricultural,
and antimildew products, and in other industrial uses—approxi-
mately 1 million pounds of a total of 5.3 million pounds—or 18
percent of all uses of mercury in 1970.
EPA has begun an extensive review of three persistent chlorinated
hydrocarbon insecticides—benzenehexachloride (BHC), lindane,
and endrin. The purpose of the review is to determine if the use
of these substances, particularly around homes and gardens and on
pets and humans, endangers the environment.
EPA has proposed new rules for conducting administrative hear-
ings on pesticide registration cancellations and suspensions.49 The
new rules call for further administrative review and public hearings
on pesticide decisions that the public may regard as unfavorable and
potentially harmful to human health and the environment. Previ-
ously, the right to initiate review had been limited to the pesticide
manufacturer whose product was threatened with removal from
interstate marketing. The new rules would also require that scientific
advisory committees set up by EPA to review pesticide actions solicit
scientific data from public interest groups. Furthermore, the public
would have the right to submit comments on an advisory committee
report.
An agreement last year between EPA and the Department of
Health, Education, and Welfare (HEW) clarified Federal agency
responsibilities to regulate use of pesticides, drugs, and food addi-
tives.50 The memorandum of agreement pointed out that EPA regu-
lates economic poisons, including pesticides, under FIFRA and the
Food, Drug, and Cosmetic Act.51 Drugs and food additives which are
not economic poisons are regulated by the Food and Drug Adminis-
tration (FDA) under the Food, Drug, and Cosmetic Act. Because
some chemical applications may be subject to regulation by both
agencies, the agreement makes clear that neither agency will approve
the marketing of a product if it does not fully comply with the re-
quirements of the law administered by the other agency.
In his February 1972 Environmental Message, the President di-
rected the Departments of Labor and HEW to use their authorities
under the Occupational Safety and Health Act52 to develop stand-
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GUIDELINES AND REPORTS 3047
ards to protect agricultural workers from pesticide hazards. A spe-
cial task force is currently at work on this project.
proposed legislation—In February 1971, the President trans-
mitted a proposed Federal Environmental Pesticide Control Act of
1971 to the Congress. That comprehensive pesticide control legisla-
tion contains a number of important provisions: authority to control
pesticide use through "restricted" and "permit only" categories,
which would require a much larger State role; streamlining of pro-
cedures for cancellation and suspension of pesticides; and authority
for the Administrator of EPA to regulate the disposal or storage of
pesticides and pesticide containers. The bill has passed the House 53
with some changes. The Senate Agriculture and Commerce Commit-
tees have reported versions of the bill.
integrated pest management—In his 1972 Environmental
Message, the President initiated a series of actions to encourage inte-
grated pest management. This approach calls for the maximum use
of natural pest population controls—such as parasites, predators,
and pest-specific diseases—combined with the judicious use of selec-
tive chemical pesticides. The objective is control of pest population
levels rather than complete pest eradication. Integrated pest manage-
ment offers the prospect of improved pest control and minimum ad-
verse environmental impact at lower cost to users.
The President's new program expands field testing of promising
techniques. It also includes a new comprehensive crop-oriented re-
search program and training of more integrated control specialists. It
broadens federally supported monitoring of pest population levels to
minimize pesticide applications. A forthcoming CEQ report will out-
line the rationale and benefits of the program and describe the con-
cept of integrated pest management in more detail.
toxic substances
pcb's—In the past few years, largely because of dramatic contami-
nation of food or food products, PCB's (polychlorinated biphenyls)
has become a household word. Actually, PCB's have been used
throughout the world for over four decades in a variety of industrial
and consumer uses. PCB's are particularly effective coolants and in-
sulators for electrical transformers and capacitators. Until their use
was discontinued, PCB's had been the ingredient that made carbon-
less duplicating paper work.
On May 12, 1972, a Federal Government task force, headed by
CEQ and the Office of Science and Technology (OST) recom-
mended that all current uses of PCB's, except for electrical capacita-
tors and transformers, be discontinued.54 While the sole U.S.
producer, the Monsanto Co., has already voluntarily limited manu-
facture of PCB's for use in capacitators and transformers, the task
force found that imported PCB's represented a potential problem.
At the same time, EPA announced that it will recommend dis-
approval of Refuse Act permit applications from industries whose
discharges raise ambient levels of PCB's in rivers and lakes to 0.01
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3048 LEGAL COMPILATION—GENERAL
part per billion or more.55 Previously, on March 18, 1972, the Food
and Drug Administration proposed new and more stringent levels for
PCB's in food and food packaging and new measures to prevent
contamination from accidents in food plants.56
The task force found that the major regulatory gap in dealing
with PCB's is the absence of any broad Federal authority to obtain
information, to restrict use or distribution, and to control imports.
It recommended enactment of the Administration's proposed Toxic
Substances Control Act, now pending before the Congress, to provide
the necessary authority.
pending legislation—Based on a CEQ report on Toxic Sub-
stances 57 the President's proposed Toxic Substances Control Act5S
would authorize EPA to curb the use of hazardous materials in com-
mercial products and processes. Its aim would be to control problems
of environmental contamination for which air and water pollution
laws are inapplicable—such as PCB contamination—or for which
such laws provide only belated, after-the-fact controls. It would
empower die Administrator of EPA to restrict or prohibit use or
distribution of a chemical substance if necessary to protect health
and the environment. The Administrator would also prescribe test
standards for certain types of chemicals which manufacturers must
perform before they can market such new chemicals. The Admin-
istrator would be required to consult with an independent board
of scientists before proposing action to restrict a substance or before
proposing test standards.
On May 30, 1972, the Senate passed a bill embodying most of
the features of the President's proposal. The House has yet to com-
plete action.
lead in paint—Last year's Annual Report chapter on Inner City
Environment discussed the serious problem of lead poisoning of inner
city children who eat paint chips that have flaked off the walls of
deteriorating buildings. Under the Lead-Based Paint Poisoning Pre-
vention Act of 1971,59 HEW's Bureau of Community Environmental
Management (BCEM) administers a comprehensive program, in-
cluding grants, scientific research, and developmental activities,
which aims to reduce or eliminate lead-based paint poisoning. To
date, over $6.5 million in grants has been awarded to 40 communi-
ties. Local programs are designed to detect and eliminate lead-based
paints from all interior surfaces, porches, and other exterior surfaces
of residential housing on or near which children may play.
The Lead Paint Act directs the Secretary of Housing and Urban
Development to study the extent of the lead-based paint problem, to
determine the most effective methods of removing the paint from
surfaces, and to report on results of his research to the Congress.
HUD's report will be published in the summer of 1972.
The Lead Paint Act also requires HEW to move to prohibit the use
of lead-based paint in residential structures constructed or rehabili-
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GUIDELINES AND REPORTS 3049
tated by the Federal Government or with Federal assistance. HEW's
regulations fulfilling this directive were published in March 1972.60
In December 1971, HUD, whose programs account for the majority
of Federally assisted, owned, or mortgaged residential housing, pro-
hibited the use of paint containing more than 1 percent lead by weight
of the dried paint film.61
FDA, acting under the Federal Hazardous Substances Act,62 has
set even stricter limits on the amount of lead contained in paint
shipped in interstate commerce.63 Effective December 31, 1972, paint
or other surface coating containing lead in excess of 0.5 percent of the
total weight of contained solids or dried paint film is banned from
interstate commerce. One year later, on December 31, 1973, the ban
tightens further, limiting lead content to 0.06 percent. The FDA
standards cover all household paints, interior and exterior, and also
cover painted toys or other articles intended for use by children.
needs program—CEQ's Second Annual Report described the
Neighborhood Environmental Evaluation and Decision System
(NEEDS), a new approach to identifying and dealing with the per-
vasive environmental health problems of inner city communities.
NEEDS' first priority is to identify neighborhoods undergoing
severe environmental and social deterioration as reflected in pollu-
tion, housing, noise, crowding, and health. Then, with the aid of
community participation, in-depth physical surveys and household
interviews are conducted. The results of the surveys and interviews
are analyzed to determine the nature and extent of problems and to
serve as a basis for recommending and implementing solutions.
NEEDS is administered by BCEM. To date, BCEM has selected
neighborhood target areas in 22 cities. Seven cities have completed
the survey and interview stage. By the end of fiscal year 1973, this
first group of cities will have completed the program analysis stage
and will begin implementing recommendations.
radiation
EPA is responsible for setting ambient radiation standards for air
and water to protect public health and for advising Federal agencies
on radiation matters. In cooperation with HEW, the Atomic Energy
Commission (AEC), and the Department of Defense (DOD), EPA
is now conducting a major review of all existing Federal radiation
protection criteria, standards, guidelines, and policies. The review,
which will be finished this year, includes contract efforts with the Na-
tional Academy of Sciences and the National Council for Radiation
Protection and Measurement.
In its 1970 report, Ocean Dumping—A National Policy, CEQ
said :
Because of the need to keep all sources of radioactivity at the lowest pos-
sible level, ocean disposal of radioactive waste should be avoided except when
no alternative offers less harm to man or the environment.
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3050 LEGAL COMPILATION—GENERAL
Consistent with this policy, the AEG amended part 20 of its
regulations for the dumping of radioactive waste at sea.64 Under
this amendment, the AEG cannot approve any disposal of radio-
active materials at sea unless the applicant shows that ocean dis-
posal threatens man or the environment less than other practicable
alternatives. Under existing AEG policy no new licenses to dis-
pose of radioactive waste at sea have been issued since 1960. The new
amendment buttresses the existing policy.
The AEG has implemented a radioactive effluent reduction pro-
gram for all AEC-owned facilities. These facilities are already dis-
charging radioactive effluent in concentrations well below Federal
radiation guide standards. The Commission has established a pro-
gram to attempt to reduce radioactivity still further by certain
changes in processes and technology. AEG will review and upgrade
its monitoring and control of the volume of effluents in order to
reduce the total radioactivity from large volume discharges.
The Food and Drug Administration has proposed regulations to
equip medical and dental X-ray diagnosis equipment with new con-
trol features to cut down patient and operator exposure to radiation
during X-ray examination.65 Ninety percent of all human exposure
to manmade radiation comes from the diagnostic use of the X-ray
machine. The new regulations would limit the radiation beam to
approximately the size of the body area under examination and
require certain technical improvements—both to reduce exposure.
These changes could reduce the genetically significant dose from diag-
nostic X-rays by as much as 50 percent or more. The proposed stand-
ards would also sharply limit the amount of radiation leakage from
X-ray sources and other diagnostic equipment. Previous HEW pro-
grams already have had a significant effect on reducing X-ray ex-
posure. (See Chapter 1, on environmental indices.)
solid waste
Stimulating recycling—Solid wastes are a growing environmen-
tal problem that spawns unsightly open dumps, pollutes air and
water, and litters the landscape. Much of its growth stems from
mounting production and consumption of materials that eventually
become wastes, coupled with a decline in the percentage of material
that is reused or recycled.
The key to greater recycling is to improve the economics of waste
materials compared to virgin materials. At current solid waste dis-
posal and reclaimed material costs, this may be accomplished by mak-
ing recycling cheaper or by incentives for the use of waste in consumer
products.
industrial development bonds—As directed in the President's
1972 Environmental Message, the Treasury Department's Internal
Revenue Service (IRS) has clarified the availability of tax-exempt
industrial development bonds for recycling facilities.66 This ruling
permits private firms to use tax-exempt municipal bonds to finance
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GUIDELINES AND REPORTS 3051
facilities to recycle and dispose of municipal wastes or to recover
their own wastes for reuse or for sale to another company. IRS ruled
that such bonds qualify for tax-exempt status where a minimum of
65 percent of the material recycled is solid waste.
This clarification will help put recycling on a more favorable
footing with traditional disposal methods. By making recycling oper-
ations more economically competitive, it will offer an incentive to
industry to use its expertise to help solve municipal solid waste disposal
problems.
gsa paper recycling—In the past year, GSA has implemented
the President's February 1971 directive to step up Federal Govern-
ment purchase of recycled paper and paper products. GSA now re-
quires that reclaimed fibers ranging from 3 percent to 100 percent be
used in most paper and paper product specifications, representing ap-
proximately $52 million or 63 percent of annual sales to Federal
agencies under GSA paper specifications.
Recycled paper for stationery and reports is usually made from
high quality paper mill waste materials (such as envelope clippings)
or from high grade homogeneous postconsumer wastes (such as used
computer cards). It usually does not include low-grade postconsumer
wastes such as newspapers and paper boxes. For example, this report
is printed on paper made in part from materials recycled from such
sources. Unfortunately such recycling does not now directly attack the
major solid waste problem of mixed postconsumer wastes, which must
be separated and are likely to contain some contaminants.
An increasing number of GSA-controlled specifications will require
a minimum percentage of reclaimed fibers from postconsumer waste
resources, that is, those that have been discarded after use by fac-
tories, retail stores, office buildings, and homes. GSA has also devel-
oped a program to increase the amount of Government-generated
wastepaper available for recycling. Several large Federal office
buildings are currently segregating recyclable wastepaper into sepa-
rate wastebaskets. This program is geared to generate greater revenue
to the Federal Government from increased wastepaper sales and
diminished waste disposal costs. It promotes environmental quality
by lessening the quantity of wastes destined for already overburdened
landfills and incinerators.
epa solid waste program—EPA's Office of Solid Waste Man-
agement is actively promoting solid waste innovations through plan-
ning and demonstration grants and technical aid to municipalities.
"Currently 46 States, 5 interstate agencies, and 8 regional agencies
have EPA planning grants to improve the management and financing
of waste collection and disposal systems. The emphasis of EPA's solid
waste demonstration grant program has shifted from hardware de-
velopment to improving markets and managerial and institutional
practices using currently available technology. Resource recovery—
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3052 LEGAL COMPILATION—GENERAL
or recycling—demonstration grants will be keyed to commercially
viable systems based on a realistic asssessment of market conditions.
Other agencies—To improve the economic attractiveness and tech-
nical feasibility of solid waste recycling technology, the Bureau
of Mines of the Department of the Interior has supported research
and development programs. A Bureau of Mines process for recovery
of mineral resources from municipal incinerator residue has been
tested successfully at the pilot plant stage and is ready for operation
on the demonstration plant scale.
DOT's Federal Highway Administration has mounted a series of
demonstration projects using waste products to build and maintain
highways. The first phase of this program was to construct, test, and
evaluate waste products as roadbuilding materials at TRANSPO
1972, held May 27 to June 4, 1972, at Dulles International Airport
near Washington, D.C. One of the parking lots, approximately 100
acres in area, was surfaced with "supersludge," a mixture of fly ash,
waste sulfate sludge, and hydrated lime. Also, crushed glass bottles,
old shredded rubber tires, and burned garbage were mixed with con-
crete to pave roads. The Dulles experience will help develop future
demonstrations and may eventually show industrial and consumer
wastes to be a practical and economically competitive substitute for
conventional roadbuilding materials.
noise
pending legislation—In his 1971 Environmental Message, the
President proposed a Noise Control Acte7 which would empower
EPA to set standards limiting the noise-generation characteristics of
construction and transportation equipment and other equipment
powered by internal combustion engines. The standards would cover
such major sources of noise as automobiles, trucks, motorcycles, com-
pressors, and off-road vehicles. The legislation would also require
EPA concurrence on Federal Aviation Administration (FAA) air-
craft noise standards. The bill would authorize the Administrator of
EPA to require labeling of household products and appliances, such as
air conditioners, garbage grinders, and vacuum cleaners. It would
also direct EPA to coordinate existing Federal noise research and con-
trol programs and to publish criteria and control technology docu-
ments relating to noise. The House has passed a bill based primarily
on the President's proposals,68 and the Senate has completed hearings.
epa noise hearings and report—The Clean Air Amendments of
1970 established an Office of Noise Abatement in EPA and re-
quired a report to Congress on noise problems and impacts. EPA's
report was released early in 1972 after a series of public hearings in
eight major cities.69 It concluded that noise increases the risk of hear-
ing impairment; interferes with conversation, sleep, recreation, and
the general quality of American life; and possibly induces lasting
physiological effects in people exposed to high levels over a long-term
period.
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GUIDELINES AND REPORTS 3053
regulatory actions—On August 4, 1971, the Department of
Housing and Urban Development (HUD) issued noise abatement
and control regulations for its programs.70 These rules set noise levels
for HUD-fmanced dwelling units and discourage construction of
dwelling units on sites that have or are projected to have unaccept-
able noise exposure. If applicants do not comply with its noise stand-
ards, HUD will withhold all forms of aid.
There are a number of instances in which the new HUD policy
has prevented noise problems. A proposed new community in the
vicinity of the Dallas-Fort Worth International Airport—currently
under construction—would have been in the path of noisy jet air-
craft. As a result of noise projections made for the airport, the land
use plan for the new community was revised to exclude residences
and certain other uses from the noisiest areas. In addition, HUD
delineated a projected noise zone for the proposed Los Angeles In-
ternational Airport at Palmdale. The Department will refuse to in-
sure mortgages or give other forms of assistance for incompatible uses
in noisy areas around the airport.
HUD has required structural alterations in projects slated for
existing urbanized areas to assure quiet inside dwelling units. For
example, it required that central air conditioning and double glazed
windows be installed in a New York City nursing home as a condi-
tion for eligibility for mortgage assistance.
gsa noise abatement—GSA has set maximum allowable noise
levels for selected construction equipment at Federal building con-
struction sites. Solicitations for construction bids issued after June 30,
1972, will include noise level limits for equipment such as tractors,
bulldozers, power shovels, cranes, derricks, graders, trucks, air com-
pressors, and pneumatic-powered tools. The noise abatement require-
ments will become progressively tougher at specified future dates.
This action will not only have the immediate effect of reducing noise
at Federal construction sites but will also spur the development of
quieter equipment.
improving land use
national land use policy
In his 1972 Environmental Message to the Congress, the President
reaffirmed his commitment to national land use policy legislation and
proposed two significant amendments 71 to strengthen the land use
policy bill he had proposed in his 1971 Environmental Message.72
The original legislation would require the States, as a condition of
obtaining Federal financial assistance, to assume responsibility for
land use decisions which typically have an impact beyond the local
jurisdiction where the development decision is made. States would
be required to protect areas of critical environmental value such as
coastal wetlands and historic districts; control land use around public
facilities such as airports, highway interchanges and major recreation
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3054 LEGAL COMPILATION—GENERAL
areas; and assure that regionally needed development such as water
treatment plants or low and moderate income housing is not excluded
by local governments.
The amendments which the President proposed in 1972 require
that the State agency administering the State land use program have
responsibility for site location for major airports, highways, and parks,
as well as authority for land use controls around such facilities. States
which fail to develop adequate land use programs would lose 7 per-
cent of the Federal highway, airport, and park acquisition funds to
which they would otherwise be entitled. The money withdrawn from
a State beginning in 1975 could increase to 21 percent by the third
year of noncompliance. Such funds would be made available to States
complying with the land use policy law. The net effect of the pro-
posed new amendments would be to bring the State land use agency
into earlier involvement with the siting and design of facilities affect-
ing regional growth and development.
The Senate Interior Committee has reported a bill largely incorpo-
rating the President's 1971 and 1972 proposals.73 The House Interior
Committee has reported a bill with similar land use provisions, but
with additional provisions dealing with the public lands.74
managing the public lands
Although the Federal Government itself owns approximately 450
million acres of public domain land, it has never been equipped with
specific legislation setting forth a policy for its management, reten-
tion, and disposal. The basic tools for managing the public domain
were forged when Federal ownership was expected to be short-lived
and when the Federal role was that of a temporary custodian. The
President proposed legislation in 1971, the National Resource Land
Management Act,75 directing the Secretary of the Interior to manage
the public domain lands to protect the quality of the environment
and declaring a policy in favor of retention of these lands.
tax incentives toward better land use
The President has proposed using the tax laws to provide incen-
tives for better land use decisions. The proposed Environmental Pro-
tection Tax Act of 1972 76 would discourage development of the
biologically productive coastal wetlands by limiting certain tax deduc-
tions for new developments in these areas.
The Act also includes incentives that would minimize the differ-
ence in tax treatment between demolition and rehabilitation to en-
courage more rehabilitation of attractive and historic buildings.77
Current favorable tax treatment for new construction often leads
developers to raze attractive older buildings rather than rehabilitate
them, thereby destroying significant buildings and changing the char-
acter of neighborhoods.
The President has made proposals to encourage the retention and
restoration of historically significant buildings listed on the National
Register of Historic Places.78
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GUIDELINES AND REPORTS 3055
He has also proposed tax deductions for gifts of ecologically and
environmentally important lands to nonprofit organizations or to
State and local governments. Such deductions would be allowed for
all donated conservation related easements—even those granted for
less than perpetuity.79
other pending land use proposals
The Congress is continuing its review of the Administration's other
1971 proposals for land use controls. These include: the Power Plant
Siting Act,80 which would require long-term planning of sites by utili-
ties and approval of final sites by a State agency; the Mined Area
Protection Act,81 which would require State regulation of surface
and underground mining; and the Mining Law82 and the Mineral
Leasing Law83 both of which would reform Federal mining and min-
eral leasing practices on public lands.
key federal land use decisions
alaska native claims settlement act—Of Alaska's 375 million
acres, 97 percent, or 363 million acres, remains in Federal hands. The
Department of the Interior manages about 330 million of those Fed-
eral acres—in National Parks, National Monuments, Wildlife Ref-
uges and Ranges, and unappropriated public domain. Other Federal
holdings include National Forests, administered by the Department
of Agriculture, and areas set aside for the armed forces.
The 1958 Act that gave Alaska its Statehood84 said that the State
could select up to 103 million acres for its own needs, a large portion
of which has already been selected. The 1971 Alaska Native Claims
Settlement Act85 provided that the Native Alaskans (approximately
90,000 Indians, Eskimos and Aleuts, of which 55,000 still live in
Alaska) could select 40 million acres in fee title and receive $962.5
million over a period of years in settlement of their aboriginal claims.
The 1971 Act gave the Secretary of the Interior 90 days from its
effective date, December 18, 1971, to review Alaska's unreserved
public lands and determine whether any portion of these lands should
be withdrawn. It also directs the Secretary to make withdrawals of
up to 80 million acres of land which he finds suitable for addition to
or creation as units of the National Park, National Forest, Wildlife
Refuge, and Wild and Scenic Rivers Systems.
On March 9, 1972, the Secretary withdrew 80 million acres for
further study of their suitability for these four systems.86 He also
withdrew an additional 45 million acres from all appropriation ex-
cept metalliferous mining. These lands embrace acreages potentially
valuable for a wide variety of possible uses, including any of the four
systems, multiple use for timber and minerals management, hunting,
and recreation. They will be studied for disposal or retention by the
Federal Government.
Finally, the Secretary withdrew some 40 million more acres for
native selections in addition to the 59 million acres already withdrawn
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3056 LEGAL COMPILATION—GENERAL
by the Act. This gives the natives some 99 million acres from which
to choose their final 40 million acres. Some of the remainder there-
after could be selected by the State. The Native Claims Act also
established a Joint Federal-State Land-Use Planning Commission,
which is critical to sound land use planning in Alaska.
alaska pipeline—On May 11, 1972, after more than 2 years of
study and the filing of a multivolume final environmental impact
statement, the Secretary of the Interior announced his decision to
grant a right-of-way permit to a private consortium of oil companies
to build a trans-Alaska pipeline. The Secretary considered an alter-
nate route through Canada, but noted that some environmental risks
would be involved with either route. He pledged that the Department
would take strict measures to minimize potential pollution from the
Alaskan pipeline. He also said that the Alaska route was in our best
national interest because it would guarantee the quickest delivery of
oil to the west coast through a secure pipeline located under the total
jurisdiction and for the exclusive use of the United States.
Whether the permit is actually granted hinges now on the resolu-
tion of a court injunction against the Secretary which halted further
construction of a road necessary to lay the pipeline.
big cypress—In November 1971 the President announced a pro-
posal to acquire sufficient Federal legal interest in the Big Cypress
Swamp north of Everglades National Park in Florida to protect it
from private development.87 More than half of the ground water
flowing into Everglades National Park comes from the Big Cypress,
and the Park's preservation depends upon this supply of fresh water.
Aside from its importance to the Park, the Big Cypress also provides
the critical water supply for much of the southern Florida Gulf coast
which has important aesthetic and economic features. The larger
ecosystem of which Big Cypress is a part is the Nation's only signifi-
cant subtropical marsh area.
Under the President's proposal, the Secretary of the Interior would
acquire interest in up to 547,000 acres of private land and approxi-
mately 37,000 acres of publicly owned land, to be known as the Big
Cypress National Fresh Water Reserve. The Reserve would be ad-
ministered by the Secretary of the Interior in accordance with the
laws applicable to the National Park System or by State or local gov-
ernments if they agree to a number of conditions for protecting the
swamp's unique natural environment. Some portions would be man-
aged as scientific, ecological study areas, and acquisition would pre-
serve important habitat for at least nine endangered species of wild-
life as well as many species of exotic plants and flowers. (See Figure
1, a map of the Big Cypress National Fresh Water Reserve and the
Everglades National Park.)
-------
GUIDELINES AND REPORTS
3057
Figure 1
Proposed Big Cypress
National Fresh Water Reserve, Florida
FORT LAUDERDALE
HOLLYWOOD
-«
EVERGLADES
NATIONAL
PARK
Source: Department of the Interior
preserving our natural heritage
national parks centennial
The National Parks System celebrates its centennial year in 1972.
Beginning with Yellowstone National Park 100 years ago, the system
has grown to embrace 285 National Parks and Monuments, National
Recreation Areas, National Seashores, Historic Sites, and other areas.
By 1971 the National Park System covered 30 million acres of
federally owned land in 47 States, the District of Columbia, Puerto
Rico, and the Virgin Islands and served over 201 million visitors.
On January 5, President Nixon proclaimed 1972 as the National
Parks Centennial Year and called upon all Americans to take part
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3058 LEGAL COMPILATION—GENERAL
in centennial events. The year is being celebrated with banquets,
exhibitions, symposia, and five centennial commemorative stamps.
From September 21-27,1972, at Grand Teton National Park, more
than 500 representatives from almost 90 nations will take part in the
Second World Conference on National Parks. They will exchange
ideas and information from around the globe. The conference will
be sponsored by the 15-member Centennial Commission and the In-
ternational Union for the Conservation of Nature and Natural
Resources. Prior to the conference, ceremonies will be held at Yellow-
stone to commemorate the 100th anniversary of the first National
Park.
legacy of parks
In urban America, where 7 out of every 10 Americans live on 1.5
percent of the Nation's land area, only one-fourth of the Nation's
recreation facilities and only 3 percent of its public recreation lands
are reasonably accessible. The President's Legacy of Parks Program,
initiated early in 1971, was intended to insure the availability of open
space and recreational areas closer to where people live. The program
includes an accelerated effort to transfer surplus Federal lands to
State and local governments for park and recreation use.
Before the legacy of parks program began, surplus Federal lands
could be turned over to State and local governments for park use
only if purchased at 50 percent of fair market value. As a result of
new legislation, Federal lands can now be transferred to State and
local park jurisdictions at a discount of up to 100 percent of their fair
market value.
The President's Property Review Board, established by Executive
Order 1150888 has the job of searching for underutilized Federal
lands which may have recreation potential. As of June 28, 1972, 144
properties had been made available for recreational use, covering
approximately 20,000 acres in 39 States and Puerto Rico. Their esti-
mated fair market value is over $98 million. Most of them are located
in and near cities, where the need for open space is greatest.
Another major facet of the Legacy is the Interior Department's
Land and Water Conservation Fund. In fiscal year 1972 appropria-
tions for the Fund's multiple activities totaled $365 million, some
$255 million of which was matched with State and local funds
for comprehensive recreation planning, land acquisition, and facility
development.
The fund is also providing $101 million for Federal agencies to
buy land to preserve our natural and historic heritage in National
Parks, Recreation Areas, Historic Sites, Wildlife Refuges, and Wild
and Scenic Rivers and Trails. The fiscal year 1973 budget calls for
expenditures of nearly $200 million for the State grant-in-aid pro-
gram and nearly $100 million for authorized Federal land
acquisition.
Cash obligations for the entire life of the fund's grant pro-
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GUIDELINES AND REPORTS 3059
gram have reached the $1 billion mark, $500 million of it in State
and local matching funds. More than 7,500 projects have been ap-
proved by Interior's Bureau of Outdoor Recreation—over half
approved since early 1969.
Several closely related HUD programs (open space land, urban
beautification, and historic preservation) have been replaced by a
single comprehensive aid program. The new consolidated open space
program enables HUD to provide assistance to State and local gov-
ernments from a single source for the full range of activities included
in park acquisition and development, for environmental improve-
ments on publicly owned or controlled land, and for preservation of
historic buildings and sites.
Complementing his May 1971 proposal to establish a 23,000-acre
Gateway National Recreation Area in the New York City area, which
has passed both Houses and is awaiting conference, the President
has now proposed a Golden Gate National Recreation Area in
California's San Francisco Bay region.89 With Congressional ap-
proval, two of the Nation's most scenic gateways—each with valuable
cultural, historic and recreational assets and each accessible to millions
of people—will become available for widespread use. The Golden
Gate Recreation Area would run along 30 miles of beautiful beaches
and coastline north and south of the Golden Gate Bridge with bound-
aries embracing some 24,000 acres of existing State and county park-
land, undeveloped military reservations, and private lands. (See Fig-
ure 2, a map of the proposed boundaries of the Golden Gate National
Recreation Area.)
off-road vehicles
In his Environmental Message of 1972, the President announced
the issuance of an Executive Order imposing controls over the use
of off-road vehicles (ORV's) on public lands.80 In the last few years
the number of motorcycles, trail bikes, dune buggies, swamp buggies,
snowmobiles, all-terrain vehicles, and other ORV's has multiplied
to over 5 million. The Department of the Interior's Bureau of Out-
door Recreation predicts that ownership and use will continue to
grow at a dramatic rate.91 The President's Executive Order recognizes
that ORV's are a legitimate form of outdoor recreation when used re-
sponsibly. But too often these vehicles are operated far from devel-
oped trails and roads, damaging fragile ecological areas, disrupting
wildlife in their natural setting, and conflicting with recreational uses
that require solitude. Noisy ORV's conflict sharply with more tradi-
tional uses of natural areas by hikers, backpackers, horseback riders,
and campers. Under the Executive Order, heads of Federal land
management agencies must develop, by August 1972, regulations for
ORV usage aimed at lessening damage to natural resources and wild-
life and minimizing conflicts with other recreation uses. The agen-
cies will designate areas where ORVs may or may not be used and
will specify, operating conditions.
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3060 LEGAL COMPILATION—GENERAL
wilderness areas
The 1964 Wilderness Act92 set aside 54 areas consisting of about
9.1 million acres of land, mostly in the Western States. Since then,
some 35 new areas—about 1.3 million acres—have been added. In
his 1971 Wilderness Message, the President endorsed all 13 areas
proposed to the Congress by the previous Administration and pro-
posed 14 new areas. Subsequently, four other areas have been pro-
posed to the Congress. Two of the 31 proposed areas have been des-
ignated as wilderness by Congress.93 The other 29, comprising several
million acres, have not been enacted.
In 1972, 18 new areas were proposed, which would add another
1.3 million acres to the Wilderness System. Eight He within National
Forests, four within National Parks, and six within National Wildlife
Refuges. Congressional approval of all pending proposals would
bring the Wilderness System to a total of 15.2 million acres.
Unfortunately, few of these wilderness areas are in the Eastern
United States, where most of the people live. In his 1972 Environ-
mental Message, the President directed the Secretaries of Agriculture
and the Interior to identify areas in the East that have Wilderness
potential. He also announced that the program for review and
recommendations of new additions to the National Wilderness Sys-
tem has been brought back on schedule and that the 1974 deadline
will be met.
wildlife
predator control—The widespread use of highly toxic poisons in
predator control programs, particularly on public lands in the West,
has been of increasing concern to the public, conservation groups,
and Federal land managers. These poisons endanger beneficial birds
and animals and disrupt the ecosystem.
Last year the Council on Environmental Quality and'the Depart-
ment of the Interior appointed an Advisory Committee on Predator
Control to study the entire issue of predator and related animal con-
trol activities. In its report, Predator Control—7977, the Com-
mittee found that persistent poisons have been applied to range and
forest lands without adequate knowledge of how they affect the
ecology or whether they actually prevent loss of livestock.94 The large-
scale use of poisons for control of predators and field rodents has
unintentionally killed other animals and damaged natural ecosystems.
The Committee concluded that necessary control of coyotes and other
predators can be accomplished by methods other than poisons.
On the basis of this report, the President issued an Executive
Order 95 barring, with certain exceptions, the use of poisions for pre-
dator control on all Federal lands. Also, EPA has suspended and can-
celled registrations for poisons used in predator control.66 EPA's ac-
tion covers all uses of the poison "1080" and predator control uses of
cyanide and strychnine. The President has also proposed legislation 9r
to shift the emphasis of the current Federal predator control program
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GUIDELINES AND REPORTS 3061
to one of research and technical and financial aid to control predator
populations by means other than poisons. The proposed legislation,
passed by the House would repeal the Act of March 2, 1931,98 au-
thorizing the control of predatory animals on Federal lands.
endangered species—Nearly 400 species are currently listed as
endangered, either in the United States or worldwide. Although there
are some species once threatened with extinction that are now
thought to have been saved, the threat remains and can be expected
to grow in intensity as habitat is converted to human use. CEQ
warned in its Second Annual Report that "from the available evi-
dence, it would appear that populations of many—but by no means
all—species of nongame wildlife are declining to some degree."
In his 1972 Environmental Message, the President proposed
legislation that would, for the first time, make the taking of an
endangered species a Federal crime." The law would extend the
definition of "endangered" to include forms which are "likely to
become endangered," permitting action to be taken before species
are on the critical list. The proposed legislation would also enable an
international species to be listed if it is threatened throughout a sig-
nificant portion of its range.
Within the past year the United States has halted all harvesting of
whales and commerce in whales and whale products. The Secretary
of the Interior placed all eight commercial species on the endangered
species list, prohibiting imports of whale products into the United
States.100 The Secretary of Commerce denied the license renewal ap-
plication of the last remaining U.S. whaling operation, ending this
country's long whaling history.101 (See Chapter 3, on international
aspects of the environment, for a fuller discussion of marine mammal
protective activities.)
environmental research
In 1972, for the first time, the President sent a Science and Tech-
nology Message to the Congress.102 The message, coupled with 1973
budget requests, reflects a new priority for meeting civilian needs—
including environmental needs—with technology while military and
space-oriented research programs are winding down.
In his 1973 budget, the President announced an $88 million in-
crease in energy research, or 22 percent over fiscal year 1972. The
total of $450 million would be targeted to developing new, cleaner
energy sources, such as the liquid metal fast-breeder reactor, and for
converting coal into pipeline quality gas. It also will fund research on
fusion power, solar energy, and magnetohydrodynamics.
The President also announced stepped-up research in other areas.
As discussed earlier, he initiated a new research and demonstration
program for integrated pest management. The fiscal year 1973 DOT
budget requests over $19 million research and development funds to
reduce airplane noise, compared to only $8 million in fiscal year 1972.
The National Aeronautics and Space Administration has requested
-------
3062 LEGAL COMPILATION—GENERAL
$12 million in fiscal year 1973 for aircraft noise reduction research.
DOT's fiscal year 1973 budget also calls for $17 million for urban
mass transit research and development stressing improved bus design
and operations, bus pollution control, and new transit techniques.
On January 31, 1972,103 the President transmitted to the Congress
a joint HEW-EPA study on the health effects of environmental pol-
lution. The report concluded that the Nation needs more research on
identifying agents entering the environment and on assessing their
toxicity and impacts on biological systems. Intensified efforts also are
needed to find ways to test new agents before they are widely dis-
tributed and to develop a scientific understanding of the effects of
combinations of chemicals. The fiscal year 1973 budget has funds set
aside to gain a better scientific understanding of the effects of en-
vironmental pollutants on human health. Research on the health
effects of pollutants was singled out for special emphasis, with a pro-
posed increase from $115 to $154 million—or 35 percent—from fiscal
year 1972 to fiscal year 1973. Sizable portions of the new money will
be given to EPA to study the health effects of air pollutants and to
HEW's National Institutes of Health to consider the carcinogenic
properties of chemicals.
The National Science Foundation's research and development pro-
gram will increase from $486 million in 1972 to $563 million in 1973,
focusing funds on projects aimed at better understanding of the
environmental sciences and at advanced technologies, such as solar
power.
Research designed to better understand the impact of pollution
upon ecological processes continues to receive high priority from
Federal agencies. The National Oceanic and Atmospheric Adminis-
tration (NOAA) has a number of programs underway. Working with
the Smithsonian Institution, the Department of the Interior^ and
others, NOAA marine biologists have developed a comprehensive
long-term program of marine mammal research. These efforts com-
bine Federal research with those of the nongovernment scientific
and academic community. Generated at the 1971 International Con-
ference on the Biology of Whales, the NOAA program recognizes that
we currently have only scant basic scientific knowledge about whales.
NOAA is expanding its research and development efforts on ocean
processes and marine resources. Studies will probe environmental
problems in the world's oceans and focus on selected nearshore ocean
areas. NOAA is also studying various aspects of weather modification,
including research into mitigation of the intensity of hurricanes,
snowfall redistribution, and the allevation of drought. Mathematical
models of climate modification and of broader circulation of the
atmosphere and the oceans are being developed to augment the
research effort.
The National Bureau of Standards assisted EPA in measuring the
scope and magnitude of noise as an environmental problem and is
working with the AEC to develop standard procedures for measur-
-------
GUIDELINES AND REPORTS 3063
ing and assessing environmental deposits of trace levels of radio-
activity produced by nuclear power reactors.
A number of agencies are concerned with developing better
methods to prevent and clean up oil spills. In 1972 EPA spent $3.9
million on research on the effects of oil and hazardous materials spills,
and on technology for controlling them. EPA also constructed an oil
and hazardous materials test basin at its laboratory in Edison, N.J.
The Coast Guard has supported the development of oil spill contain-
ment devices and has tested prototypes on the high seas. The Coast
Guard, Maritime Administration, and Navy Department have also
conducted research into oil-water separators, tank membranes, tanker
design, and other technological innovations to minimize the discharge
of oil.
DOT is conducting an assessment of the meteorological and en-
vironmental effects of high altitude aircraft. Under its Climatic
Impact Assessment program (CIAP), DOT is investigating the
complex interactions between aircraft emissions in the upper
atmosphere, the chemistry of the natural components of the strato-
sphere, and the dynamic motions of the upper atmosphere, including
dispersion and transport. In the past year, CIAP has started measur-
ing engine exhaust emissions under simulated cruise conditions; spon-
sored global measurements of ozone, water vapor, and particulates
from high altitude balloons; developed new high sensitivity apparatus
for measuring nitric oxide at high altitudes; and obtained new
measurements of reactions of ozone with other elements in the upper
atmosphere. The results of the CIAP assessment will be reported in
1974.
Last year's Annual Report discussed the conversion of part of the
Pine Bluff Arsenal in Arkansas from a biological warfare materials
development facility to a National Center for Toxicological Research.
That facility, jointly administered by the Food and Drug Administra-
tion and EPA, has started to develop protocols (procedures for con-
ducting tests) to examine the biological effects on test animals of low
doses of chemical substances over long periods of time.
The Atomic Energy Commission's new aquatic ecology facility at
the Oak Ridge National Laboratory (ORNL) in Tennessee is
analyzing the impact of thermal discharges from powerplants on fish
and other aquatic life. Through such research, ORNL scientists hope
to be able to predict possible adverse or beneficial environmental
impacts from thermal discharges for use in assessing individual
nuclear powerplants. This type of practical data will be particularly
useful in picking sites for plants or designing cooling systems. ORNL
will also study the interactions of temperature and radioactivity on
aquatic organisms.
In a survey of Federal ecological research, the CEQ-Federal Coun-
cil for Science and Technology (FCST) Committee on Ecological
Research reported a 26-percent increase in Federal support of eco-
logical research between fiscal year 1971 and fiscal year 1973. The
-------
3064 LEGAL COMPILATION—GENERAL
research focused on ecosystems functions, interactions between orga-
nisms and their physical and chemical environments, and the impact
of man and his technology on natural systems. Most of the increased
research aims to help resolve specific ecological and environmental
problems. Because serious gaps in knowledge still exist, CEQ and
FCST are jointly identifying the major national goals in ecological
research.
NOAA, EPA, DOT, DOD, and Interior are working on a joint
U.S.-Canadian program of environmental and water resources re-
search for the Great Lakes. This effort is expected to develop a
sounder scientific basis for Great Lakes water resources management
and to aid in solving problems of water quality and supply.
environmental education and training
The spectrum of environmental education extends from training
thousands of environmental scientists, engineers, and technicians to
increasing the general public's awareness and understanding of
environmental problems.
EPA's training grant programs cover the fields of air and water
quality, radiation, and solid waste. Grants are awarded to colleges
and universities with heavy emphasis on the education of master's
and doctoral level professionals. In fiscal year 1972, EPA budgeted
over $10 million for graduate education grants for 114 university
and 22 other programs, with more than one-half of the total desig-
nated for water quality. EPA environmental education efforts also
encompass grants to undergraduate and secondary schools, as well
as public information services.
Under the Environmental Education Act of 1970,104 the Office of
Environmental Education (OEE), a division of HEW's Office of
Education (OE), administers a wide-ranging grant program. The
program funds projects in training, curriculum development, com-
munity education, State planning, and evaluation of environmental
education activities. In the past year, OEE has awarded grants for
projects as diverse as neighborhood recycling education centers and
comprehensive environmental education planning at the junior high
school level. In fiscal year 1972, OEE budgeted $3 million for grants
under the Act and augmented its environmental education efforts
with $11.2 million in additional funds from other OE programs.
In fiscal year 1971, the National Science Foundation (NSF) sup-
ported projects amounting to $5.7 million in areas related to en-
vironmental education. These efforts include student and instructor
training and curriculum development for elementary and secondary
schools, as well as colleges and universities.
The Department of the Interior's National Park Service has devel-
oped a three-pronged approach to environment education. Its Na-
tional Environmental Education Development (NEED) program
develops and distributes curriculum materials on environmental prob-
lems and processes to elementary, junior high, and high schools.
-------
GUIDELINES AND REPORTS 3065
NEED materials for sixth grade classes are already available. Ma-
terials for other grades will be completed and published later this
year and in 1973. The Park Service has also designated 80 National
Environmental Study Areas (NESA) within the National Park Sys-
tem. Through a cooperative program with the U.S. Office of Educa-
tion, the National Education Association, and local school systems,
these areas are available to students and teachers to examine in a
natural setting the relationships of man to the natural environment.
In a related effort to preserve naturally significant environment study
areas not under Federal jurisdiction, the Park Service designates
National Environmental Education Landmarks (NEEL). To date 11
such areas have been identified under the NEEL program.
the president's environmental merit awards program
In October 1971 the President initiated an environmental merit
awards program to recognize environmental services by youth
throughout the country. The awards are given to students at elemen-
tary, junior high, and high school levels for outstanding environ-
mental projects. On April 20, 1972, the President established by
Executive Order an Advisory Committee to the awards program.105
Awards for particularly significant projects are presented by members
of the President's Advisory Committee.
Environmental service awards recognize two levels of accomplish-
ment. The first level (certificate of merit) is granted to all students
or student groups who undertake and complete a responsible environ-
mental service project. The second level (award of excellence) is
awarded for projects considered by a judging panel to merit special
recognition for achievement. Projects that have received awards
include recycling centers, cleanup drives, tree plantings, and studies
of local pollution problems. In a number of cases, student projects
have resulted in new environmental ordinances or other community
actions.
As of June 8, 1972, the program had awarded 2,154 certificates of
merit and 1,969 awards of excellence. At the Federal level, the pro-
gram is administered through the Environmental Protection Agency
and the Office of Education.
environmental reorganization—a progress report
Last year's Annual Report described the 1970 organizational inno-
vations that created both EPA and NOAA. During the past year
both agencies have translated the underlying objectives of improved
focus and coordination into specific action. This chapter has dis-
cussed many of their accomplishments.
On March 25, 1971, the President proposed legislation to establish
a Department of Natural Resources (DNR), bringing together all of
the major Federal programs concerned with energy, water, land, and
other natural resources.106 The Department would consist of five ma-
jor parts: land and recreation resources; water resources; energy and
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3066 LEGAL COMPILATION—GENERAL
mineral resources; oceanic, atmospheric, and earth sciences; and
Indian and territorial affairs.
The Department would include all programs now in the Depart-
ment of the Interior, plus a number from other agencies. From the
Agriculture Department, it would embrace the Forest Service, the
Soil Conservation Service, relevant sections of the Economic Research
Service, and the soil and water conservation research functions of the
Agricultural Research Service. Policy and planning functions of the
Army Corps of Engineers would be transferred to DNR, as would
civilian power functions of the Atomic Energy Commission and pipe-
line safety functions of the Department of Transportation. All of
NOAA and the Water Resources Council would be transferred to
DNR.
This proposal for better organization and direction of the Federal
Government's natural resource programs still awaits Congressional
action. Only one hearing has been conducted by the Senate and none
by the House.
supreme court environmental decisions
As the chapter on Law and the Environment of CEQ's 1971 An-
nual Report indicated, the lower Federal courts have been carrying
a heavy load of environmental litigation, particularly of cases in-
volving the National Environmental Policy Act (NEPA). Environ-
mental litigation continued at an even higher level during this past
year, as Chapter 7 of this year's report, on NEPA, illustrates. There
were also a significant number of decisions in environmental cases by
the U.S. Supreme Court this year. These decisions deserve special
attention because they carry important implications both for the
substantive development of the law in several areas and for future
Federal-State relations in environmental control activities.
The Supreme Court's 1971 term opened when the Court denied a
temporary injunction to stop the AEC from carrying out a scheduled
underground nuclear explosion code named Cannikin on Amchitka
Island, Alaska. In Committee for Nuclear Responsibility v. Schles-
inger,107 the test was challenged on the grounds that the NEPA envi-
ronmental impact statement was inadequate. Both trial and appellate
courts had refused to grant temporary injunctions against the test.
The Supreme Court's decision came at noon on the day that the re-
quest was considered. Later that afternoon the test was carried out.
Beset by unusual time pressures the Court, by a close decision, refused
to delay the test for a determination of the adequacy of the environ-
mental impact statement.
Next, in Sierra Club v. Morton (the Mineral King case),108 the
Court heard a challenge to the legality of a ski resort development on
Federal land in California's Sierra Nevada Mountains. Rather than
dealing with the merits of the action, the Court held that the Sierra
Club had not established the statutorily required interest in the area
to have standing to press its claims. The Court did, however, confirm
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GUIDELINES AND REPORTS 3067
that environmental grounds were a basis for challenging Federal
actions and that plaintiffs would have standing if they could prove
they were damaged by actions of the Government. The case is dis-
cussed further in Chapter 7, on NEPA.
Problems of Federal-State conflict in setting environmental stand-
ards for radiation emissions next drew the Court's attention. In
Northern States Power Co. v. Minnesota,™3 the Supreme Court af-
firmed a decision of the Court of Appeals for the Eighth Circuit which
held that nuclear-fueled electric generating plants are subject only
to radiation regulations imposed by the Atomic Energy Commission
under the Atomic Energy Act of 1954 110 and not to stricter State
regulations.
In Illinois v. City of Milwaukee,111 the Court refused to permit
Illinois to file an original complaint in the Supreme Court against
four Wisconsin cities and two local sewerage commissions. Illinois
charged that these Wisconsin cities and sewerage commissions were
causing pollution of its water.
Under the Constitution the Supreme Court must take jurisdiction
as a trial court when one State sues another. But in this case, the
Court was able to refuse jurisdiction by holding that political sub-
divisions of a State (i.e., the Wisconsin cities and sewerage com-
missions) should not be considered as States for purposes of manda-
tory Supreme Court jurisdiction. Nonetheless, it held that a Federal
district court in Wisconsin did have jurisdiction to hear Illinois' claim.
The Supreme Court then laid down guidelines for the Federal district
court's consideration of the case. It stated that political subdivisions
of Wisconsin have a duty to abate pollution of interstate waters or of
the air in an identifiable interstate watershed. The Federal district
court could enforce this duty under a Federal common law of
nuisance.
The opinion spoke only of the "government's" use of the newly ar-
ticulated common law remedy. Thus, the opinion suggests that while
private citizens may be unable to use this remedy, it clearly is available
to States and may well be available to the Federal Government. This
decision could involve the Federal district courts in antipollution
cases in a major new way.
After the Illinois decision was announced, the Justice Department
amended its complaint against 'the Reserve Mining Co. of Minne-
sota (discussed earlier in this chapter), originally filed under the
Federal Water Pollution Control Act and the Refuse Act of 1899,
to include a cause of action based upon the Federal common law
enunciated in Illinois v. City of Milwaukee. Thus, the Justice De-
partment has indicated that it hopes to participate actively in devel-
oping the new Federal common law of nuisance.
During this past year, the Supreme Court has taken some careful
steps to define its role and the role of the Federal judiciary in en-
vironmental law. It made an important contribution to the law of
standing by affirming the right of plaintiffs to challenge Federal ac-
-------
3068 LEGAL COMPILATION—GENERAL
tions on environmental grounds (Mineral King). And it has opened
a whole new area of Federal common law (Illinois v. Milwaukee}.
congressional activities
This chapter has discussed numerous pending Presidential environ-
mental proposals at various stages of Congressional review and action.
The Ninety-second Congress has enacted only three of the many
legislative initiatives proposed by the President. These include two
laws which should help to reduce vessel collisions and resultant spills
of oil or hazardous substances—'the Ports and Waterways Safety
Act,112 which gives the Coast Guard authority to establish vessel
traffic control systems in our busy harbors and coastal waters, and
the Vessel Bridge-to-Bridge Radio-Telecommunications Act,113 which
requires radiotelephone communications between ships. A third,
the Surplus Property Act Amendments,114 provides that Federal
historic properties transferred to States and localities may be used
commercially, thus enhancing their economic viability and offsetting
restoration expenses.
Figure 3 summarizes the status of Congressional actions on water
quality, pesticides, toxic substances, land use, and other environ-
mental legislation proposed by the President.
The Congress has acted upon a number of other environmental
measures, particularly proposals to protect various species of animals.
In the wake of disclosures of widespread aerial shooting of eagles,
Congress enacted a law making it a crime for any private person to
shoot, harass, or hunt any bird, fish, or other animal from an air-
plane.115 That Act sets maximum penalties of up to $15,000 in fines
and a year in prison for violations. The Congress also enacted a meas-
ure to protect wild horses and burros on public lands.116 The Act
brings the animals under the jurisdiction of the Interior Department's
Bureau of Land Management and the Agriculture Department's For-
est Service. Generally, these animals are not to be destroyed even if
they stray on private lands, and violators can be penalized up to
$2,000 in fines and a year in jail.
Both Houses have passed a bill which would establish a National
Environmental Data System and State environmental centers.117 The
national system would serve as a central referral and coordinating
facility for environmental data. The State centers would coordinate
and combine environmentally related research and education capa-
bilities within each State (or region if States wished to establish joint
centers).
The Senate has passed and sent to the House a bill establishing a
national policy for management, use, and protection of the Nation's
coastal zones.118 The bill would authorize Federal grants to encourage
States to prepare management programs to preserve, develop, and
restore coastal zone resources. Areas covered by the bill include
beaches, salt marshes, wetlands, harbors, bays, and adjacent lands.
The House has passed legislation calling for a 5-year moratorium on
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GUIDELINES AND REPORTS
3069
Figure 3
Status of the Legislative Components of
the 1971 Presidential Environmental Program
Hearings
Reported
Water Quality1
Pesticides2
Noise Control "*
Ocean Dumping4
Toxfc Substances"
Land Use Policy0
National Resources
Land Management7
Mined Areas Protection11
Power Plant Siting8
Environmental Financing
Authority10
Land & Water Conservation
Fund Amendments"
Historic Monuments1-
Relocation of Federal
Facilities"
Historic Property
Improvements1*
Expanded HUD Appropriations
for Open-Space Program1"1
Ports & Waterways Safety1"
Vessel Bridge-to-Bridge17
IMCO Conventions111
i Federal Water Pollution Control Act Amendments of 1972. [S. 2770]
1 Federal Environmental Pesticide Control Act of 1971. [H.R. 10729]
' Noise Control Act of 1971 [H R. 11021]
« Marine Protection Act of 1971 [H R. 9727]
s Toxic Substances Control Act of 1971 [S. 1478]
» National Land Use Policy Act of 1971. [S 632-H R. 7211]
7 National Resource Land Management Act of 1971 [S. 632-H R 7211]
> Mined Areas Protection Act of 1971. [S 993-H.R 4704]
' Power Plant Siting Act of 1971 [H R 11066]
0 Environmental Financing Act of 1971. Provisions included m Water Quality legislation in the
House of Representatives. [S 1015]
Amendments to the Land & Water Conservation Fund Act of 1965, as amended. [S. 990-H.R.
* Amendments to Surplus Property Act of 1944 and Federal Property and Administrative
Services Act of 1949 to facilitate the preservation of historic monuments. [S 1152]
Hearings
Authorization of Expenses for Relocation of Federal Facilities. [S 1153]
Amendment to National Housing Act on insurance of loans for im
historic properties [S 3248-Ommbus Housing Act]
provement of residential
-
Expanded HUD Appropriations for Open Spaces Program. [P.L 92-213]
Ports & Waterways Safety Act [P L. 92-340]
Vessel Bridge to Bridge Radiotelephone Act [PL. 92-63]
Requires Senate action only. IMCO Liability Convention (Civil Liability for Oil Pollution
Damage) being held at the Desk for further action. Amendments to 1954 Oil Spill Conven-
tion and IMCO Intervention Convention (Intervention on High Seas in cases of Oil Spills)
approved by the Senate
-------
3070 LEGAL COMPILATION—GENERAL
the killing of ocean mammals and on the importation of their prod-
ucts.119 The Act would apply to seals, sea lions, whales, porpoises,
dolphins, sea otters, manatees, walruses, and polar bears. The Senate
Commerce Committee has reported a bill that would establish a 15-
year moratorium on the taking of marine mammals.120 Both Houses
have passed resolutions requesting the Secretary of State to call
for an international moratorium of 10 years on the killing of all
species of whales.121
The Congress in the past year has continued its factfinding and
oversight hearings on environmental activities of the executive
branch. Among other topics, these hearings have dealt with amend-
ments to NEPA, implementation of the Clean Air Act, lead in paint,
national energy needs and resources, long-range energy research,
deep port development, implementation of the Environmental Edu-
cation Act, the U.N. Conference on the Human Environment, and
the proposed trans-Alaska pipeline.
ceq activities
The Council on Environmental Quality has continued in the past
year to: work with Federal agencies in carrying out the obligations of
NEPA, coordinate Federal environmental activities, advise the Presi-
dent on environmental policy issues, and inform Congress and the
public of major environmental matters through this Annual Report
on environmental quality and various special reports. CEQ, assisted
by many agencies, shaped the legislative and administrative action
program submitted to the Congress by the President in his 1972
Environmental Message. The 1972 message contained 16 major pro-
posals ranging from the new predator control Executive Order to a
tax on sulfur oxide emissions.
The Council, jointly with EPA and the Department of Commerce,
published The Economic Impact of Pollution Control,122 a prelimi-
nary assessment of the economic impacts of air and water pollution
abatement requirements on selected industries and on the U.S. econ-
omy as a whole. A summary of this report is reprinted in Chapter 8.
A soon-to-be-published report on integrated pest management de-
scribes many promising alternative techniques to minimize the use
of chemicals in pest control, impediments to their adoption, and the
administration's program to promote greater use of these techniques.
The Council also released a report prepared for it, The Quiet Revo-
lution in Land Use Control?23 and together with the Department of
the Interior, another report, Predator Control—1971.12* The Quiet
Revolution reviewed the progressive developments and actions to
control land use in a number of States and regional areas. The preda-
tor control report is discussed earlier in this chapter. A report on
PCB's,125 also discussed earlier in this chapter, was prepared by an
interagency task force under joint CEQ-OST leadership.
In March 1972 CEQ cosponsored with EPA and the Council of
State Governments a national symposium on State environmental
legislation. (See Chapter 5 for a discussion of the symposium.) Six
-------
GUIDELINES AND REPORTS 3071
major studies are currently underway at 'the Council. A study on
energy and the environment will deal with the environmental im-
pacts of energy activities. A study on recycling will analyze the envi-
ronmental, technological, and economic aspects of resource recovery.
A case study of the Delaware River Basin will analyze how environ-
mental problems developed in this area and how the future of the
region will be affected. Studies on environmental monitoring aim to
develop indices of a variety of aspects of environmental quality. A
fifth study, on the environmental effects of deep water port facilities,
will provide an environmental framework for Federal decisionmaking
on receiving supertankers in U.S. waters. A sixth, on stream chan-
nelization, is an environmental, economic, and financial assessment
of a variety of channel modification projects carried out by the Army
Corps of Engineers, the Soil Conservation Service, the Bureau of
Reclamation, and the Tennessee Valley Authority.
A discussion of environmental impact statements and the Council's
role in this area can be found in Chapter 7 of this report. The
Council has expedited public notice of environmental impact state-
ment filings by publishing in the Saturday Federal Register weekly
lists of statements received. The 102 Monitor,128 published monthly,
also reports on statements filed and gives other background informa-
tion. Finally, CEQ has arranged with the National Technical Infor-
mation Service (NTIS) and the Environmental Law Reporter
(ELR) to provide copies of environmental impact statements to the
public at a reasonable price.127
conclusions
The past year has been one of action, consideration, and new
initiatives. The Congress, involved primarily in debate on a multitude
of environmental proposals, has yet to take final action on most of
the important initiatives before it. On the administrative side, EPA
moved to implement the Clean Air Amendments of 1970 with a
number of major regulatory and standard-setting actions. Protection
of health from environmental contaminants was buttressed by the
proposed and final cancellation and suspension of a number of
pesticide products. Funding for the cleanup of Federal facilities has
continued to increase dramatically. Progress in water quality—with
the exception of vigorous criminal and civil enforcement efforts—
has been slowed by Federal court decisions concerning the Refuse
Act of 1899 and even more so by the lack of urgently needed new
water quality legislation. Federal park and recreation programs con-
tinued to be carried out at increased levels, and wildlife protection
has received new emphasis. Federal agencies are preparing for a new
thrust in environmental research.
This year there have been major steps in implementing the Clean
Air Act and numerous other executive actions. At the same time, a
wide range of new laws is nearer passage. Once these new laws are
passed, the pace of implementation can be expected to quicken even
-------
3072 LEGAL COMPILATION—GENERAL
more. This year and the next few years are -critical to laying the
framework for environmental improvement activities that will affect
our physical surroundings for decades.
footnotes
1. P.L. 91-604, 91st Cong., 2d Sess. (December 31, 1970) as codified in
42 U.S.G. § 1857 et seq. • 49 U.S.C. §§ 1421, 1430.
2. 36 Fed. Reg. 8186 (1971).
3. 37 Fed. Reg. 10842 (1972).
4. See, e.g., Buckeye Power Inc. v. EPA (6 Cir. No. 72-1628 filed June 23,
1972).
5. See, e.g., Natural Resources Defense Council v. EPA (2 Cir. No. 72-
1224 filed June 30, 1972).
6. Sierra Club v. Ruckelshaus, 4 ERG 1205, 2 ELR 20262 (D.D.C. 1972).
7. The Environment Reporter—Current Developments, B.N.A., Inc.,
Vol. 3, p. 59.
8. See, e.g., General Motors Corp. v. Ruckelshaus (B.C. Cir. No. 72-1525
filed June 8, 1972).
9. 37 Fed. Reg. 3882 (1972).
10. 36 Fed. Reg. 19697 (1971).
11. 36 Fed. Reg. 16905 (1971).
12. 40C.F.R. §60 (1972).
13. Essex Chemical Corp. v. EPA (D.C. Cir. No. 72-1072 filed Jan. 21,
1972); Portland Cement Assn. v. EPA (D.C. Cir. No. 72-1073 filed
Jan. 21, 1972); Appalachian Power Co. v. EPA (D.C. No. 72-1079,
filed Jan. 24, 1972).
14. 42 U.S.C. §§ 4331, 4332(2) (C).
15. 36 Fed. Reg. 23239 (1971).
16. Getty Oil Co. v. Ruckelshaus, 4 ERC 1141 (D. Del. 1972).
17. U.S. v. U.S. Steel Corp., et al, Civil No. 71-1041 (N.D. Ala. 1971).
18. H.R. 14931, 92nd Cong, 2d Sess. (1972).
19. Council on Environmental Quality, Environmental Quality—Second
Annual Report, pp. 13, 14 (1971); S. 1012, S. 1013, S. 1014, S. 1015,
H.R. 5958, H.R. 5966, H.R. 5970, H.R. 6961, 92nd Cong, 1st Sess.
(1971).
20. S. 2770, 92nd Cong, 1st Sess. (1971); S. 2770 (originally H.R. 11896),
92nd Cong., 2d Sess. (1972).
21. Executive Order No. 11574, 3 C.F.R, 1966-1970 Comp. 986.
22. 33 U.S.C. § 407.
23. Council on Environmental Quality, Ocean Dumping—A National Policy
(1970).
24. H.R. 9727, 92nd Cong, 1st Sess. (1971).
25. Council on Environmental Quality, The President's 1972 Environmental
Program, pp. 15-38.
26. Id.
27. 37 Fed. Reg. 12391 (1972).
28. U.S. Coast Guard, Polluting Spills in U.S. Waters—1970 (1971).
29. 36 Fed. Reg. 16215 (1971).
30. 36 Fed. Reg. 24960 (1971).
31. 33 U.S.C. §407.
32. U.S. v. Armco Steel Corp., 3 ERC 1067, 1 ELR 20517 (S.D. Tex. 1971),
modified, 3 ERC 1263 (S.D. Tex. 1971).
33. The Environment Reporter—Current Developments, B.N.A, Inc.,
Vol. 2, p. 571; U.S. v. Florida Power and Light Co., 1 ELR 20461 (S.D.
Fla. 1971).
34. 3 ERC 1458,1 ELR 20637 (D.D.C. 1971).
35. Supra note 14.
36. 36 Fed. Reg. 7723 (1971).
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GUIDELINES AND REPORTS 3073
37. U.S. v. Pennsylvania Industrial Chemical Corp., 4 ERG 1241 (3 Cir.
1972).
38. 33 U.S.C. §§1151, 1160.
39. 3 C.F.R., 1966-1970 Comp. 889.
40. 3C.F.R. 167 (1972).
41. 7 U.S.C. § 135 et seq.
42. In re Stevens Industries, Inc., et al. (consolidated DDT hearings),
I.F. & R. docket No. 63 et seq. (June 14, 1972).
43. Coahoma Chemical Co., Inc., et al, \. Ruckelshaus (5 Cir. No. 72-2263
filed June 14, 1972).
44. Environmental Defense Fund \. EPA (D.C. Cir. No. 72-1548 filed
June 14, 1972).
45. 37 Fed. Reg. 10987; 37 Fed. Reg. 13299 (1972).
46. In re Shell Chemical Co., I.F. & R. docket No. 145 et seq. (June 26,
1972).
47. 36Fed. Reg. 20259 (1971).
48. 37 Fed. Reg. 6419 (1972).
49. 37 Fed. Reg. 5707 (1972).
50. 36 Fed. Reg. 24234 (1971).
51. 21 U.S.C. §§ 346, 346a.
52. 29 U.S.C. §§651, 655.
53. H.R. 10729, 92nd Cong., IstSess. (1971).
54. Interdepartmental Task Force on PCB's, Polychlorinated Biphenyls
and the Environment (1972), National Technical Information Service,
No. COM-72-10419.
55. Id.
56. 37 Fed. Reg. 5705 (1972).
57. Council on Environmental Quality, Toxic Substances (1971).
58. S. 1478, H.R. 5276. H.R. 5390, 92nd Cong., 1st Sess. (1971).
59. 42 U.S.C. §§ 4801, 4811, 4821, 4831, 4841-3.
60. 37Ferf.Beg.4915 (1972).
61. HUD Circular HPMC-FHA-4500.5 (1971).
62. 15 U.S.C. § 1261(fm)(A), (q).
63. 37 Fed. Reg. 5229 (1972).
64. 10C.F.R. §20302(c) (1972).
65. 36 Fed. Reg. 19607 (1971).
66. Rev. Rul. 72-190; IRC § 103(c) (4) (E).
67. S. 1016, 92nd Cong., IstSess. (1971).
68. H.R. 11021, 92nd Cong., 2d Sess. (1972).
69. Report to the President and Congress on Noise (1972), Senate Docu-
ment No. 92-63, 92nd Cong., 2d Sess., GPO No. 5500-0040.
70. U.S. Department of Housing and Urban Development, Noise Abatement
and Control: Departmental Policy, Implementation Responsibilities, and
Standards (1971), circular 1390.2 CHG 1.
71. Council on Environmental Quality, The President's 1972 Environmental
Program, pp. 77-94.
72. S. 992, 92nd Cong., IstSess. (1971).
73. S. 632, 92nd Cong., 2d Sess. (1972).
74. H.R. 7211,92nd Cong., 2d Sess. (1972).
75. S. 2401, H.R. 10049, 92nd Cong., IstSess. (1971).
76. H.R. 14669, 92nd Cong., 2d Sess. (1972).
77. Id.
78. Id.
79. Id.
80. S. 1684, H.R. 11066, 92nd Cong., IstSess. (1971).
81. S. 993, 92nd Cong., IstSess. (1971).
82. S. 2727, 92nd Cong., 1st Sess. (1971).
83. S. 2726, 92nd Cong., 1st Sess. (1971).
-------
3074 LEGAL COMPILATION—GENERAL
84. Act of July 7, 1958, 72 Stat. 339, as amended and codified, 48 U.S.C.,
Chapter 2.
85. 43 U.S.C. § 1601.
86. 37 Fed. Reg. 5579 (1972).
87. S.3139,H.R. 13017, 92nd Cong., 1st Sess. (1971).
88. Executive Order No. 11508, 3 C.F.R., 1966-1970 Comp. 893.
89. S. 3174, H.R. 13018, 92nd Cong., 2d Sess. (1972).
90. Executive Order No. 11644, 37 Fed. Reg. 2877 (1972).
91. U.S. Department of the Interior, Off Road Recreation Vehicles (1971).
92. 16 U.S.C. § 1131 etseq.
93. P.L. 92-142, 92nd Cong., 1st Sess. (Oct. 15, 1971); P.L. 92-230,
92nd Cong., 2d Sess. (Feb. 15, 1972); and P.L. 92-241, 92nd Cong.,
2dSess. (March 6, 1972).
94. Council on Environmental Quality & Department of the Interior, Preda-
tor Control—1971 (1972).
95. Executive Order No. 11643, 37 Fed. Reg. 2875 (1972).
96. 37 Fed. Reg. 5718 (1972).
97. S. 3334, H.R. 13152, 92nd Cong., 2d Sess. (1972).
98. 7 U.S.C. §426 etseq.
99. S. 3199, H.R. 13081, 92nd Cong., 2d Sess. (1972).
100. 50 C.F.R. § 17, Appendix A (1970).
101. 50 C.F.R. §230.10 (1971).
102. 118Cong.Rec.S-4169 (March 17, 1972).
103. 118 Cong. Rec. S. 822 (Jan. 31, 1972).
104. 20 U.S.C. §§ 1531 etseq.
105. Executive Order No. 11667, 37 Fed. Reg, 7763 (April 20, 1972).
106. S. 1431, H.R. 6959, 92nd Cong., 1st Sess. (1971).
107. 404 U.S. 917, 3 ERG 1276, 1 ELR 20534 (1972).
108. 40U.S.L.W. 4397, 3 ERG 2039, 2ELR20192 (1972).
109. 40 U.S.L.W. 3479, 3 ERC 1976 (1972).
110. 42 U.S.C. §201 \etseq.
111. 40U.S.L.W. 4439, 4 ERC 1001, 2 ELR20201 (1972).
112. P.L. 92-340, 92nd Cong., 2d Sess. (July 10, 1972).
113. 33 U.S.C. § 1201 et seq.
114. S. 1152, H.R. 6769, 92nd Cong., 2d Sess. (1972).
115. 16 U.S.C. §742j-l.
116. 16 U.S.C. § 1331 etseq.
117. H.R. 56, 92nd Cong., 2d Sess. (1972).
118. S. 3507, 92nd Cong., 2d Sess. (1972).
119. H.R. 10420, 92nd Cong., 1st Sess. (1972).
120. S. 2871,92nd Cong., 2d Sess. (1972).
121. S.J. Res. 115, 92nd Cong., 1st Sess. (1971); H. Con. Res. 387, 92nd
Cong., 1st Sess. (1971).
122. Council on Environmental Quality, Department of Commerce, and
Environmental Protection Agency, The Economic Impact of Pollution
Control—A Summary of Recent Studies (1972).
123. Council on Environmental Quality, The Quiet Revolution in Land Use
Control (1971).
124. Council on Environmental Quality and Department of the Interior,
Predator Control—1971, supra, note 94.
125. Interdepartmental Task Force, Polychlorinated Biphenyls and the
Environment, supra, note 54.
126. Council on Environmental Quality, 102 Monitor. Each month the 102
Monitor is reprinted in its entirety in the Congressional Record. Sub-
scriptions to the 102 Monitor may be obtained by writing the Super-
intendent of Documents, Government Printing Office, Washington, D.C.
20402. The annual subscription rate is $6.50.
127. The 102 Monitor and the Saturday issue of the Federal Register con-
tain order numbers for environmental impact statements available from
NTIS and ELR.
-------
j=3T.
'^.
--**;*.?£:
•-;*-«
-------
3076 LEGAL COMPILATION—GENERAL
the past year —
continuing
state progress
In the past year, States* have continued to allot more resources
and to bring imaginative thought to environmental programs. While
more manpower and funds were concentrated in such traditional
areas of concern as air and water quality, many States also passed
legislation in other environmental problem areas, among them: noise,
solid waste, radiation, and pesticide control. And, as part of a quick-
ening movement, more States have moved to enhance and protect
environmental quality by legislating land use controls. The laws vary
in comprehensiveness and method of control. Many cover specific
geographic areas, such as wetlands and coastlines.
Two States, New Mexico and Pennsylvania, adopted constitu-
tional amendments to guarantee protection of their environment.
Pennsylvania's "Natural Resources and Public Estate Amendment"
guarantees the people "the right to clean air, pure water and to the
preservation of natural scenic, historic and aesthetic values of the
environment." 1 In New Mexico, environmental quality was desig-
nated a fundamental right to be preserved by the legislature.2 North
Carolina's legislature voted to put an amendment to conserve and pro-
tect its natural resources on the 1972 ballot for voter approval.3 These
*The term "State" includes the District of Columbia, Guam, Puerto Rico,
the U.S. Virgin Islands, and American Samoa where appropriate.
-------
GUIDELINES AND REPORTS 3077
amendments are significant, not only because of their clear statement
of constitutional authority to buttress State protection in the area of
environmental quality, but also because they give individuals and
groups standing in court and in administrative actions.
As was the case in last year's report, limited space and data force
this chapter to be a selective survey. Examples that are cited range
from interesting and unique innovations to actions representing
larger trends. To cite a particular example is not to endorse the
program. Nor should failure to describe a program or accomplish-
ment be viewed as a judgment that it is less important or significant
than others. Some important activities have been omitted either
because information was lacking or because they occurred too late
to be covered adequately.
controlling pollution
Setting and enforcing standards was the main thrust of State
activity during the past year. Appropriations for pollution control,
while continuing to grow, in many cases could not keep up with
needs. New areas of regulation and increased needs for planning,
technical, and legal manpower to enforce standards and prosecute
polluters continue to be major problems vexing State environmental
activities.
broadened fiscal support
Most States continued to increase their direct appropriation
of funds for pollution control programs. Some States also experi-
mented with fee systems in air and water pollution control. Figures 1
and 2 outline the increases in the amount of money and manpower
set aside b" the States for pollution control programs in air and water
quality—for setting and enforcing standards and for monitoring,
planning, and training. Virginia and Pennsylvania are two examples.
Virginia has more than tripled funding to support its air pollution
control board staff for fiVal vears 1972-74 over the previous 2 fiscal
years 1970-72—from $320,000 to $1,026,000. By the end of the fiscal
year ending June 30. Pennsylvania had 30 attorneys working full
time in environmental law enforcement. This is 10 times the strength
of the enforcement staff in August 1970.
Table 1 shows that the six New England and three Middle
Atlantic States accounted for 58.9 percent of the 50 State govern-
ments' total spending for water quality in fiscal year 1969-70—even
though only 24.1 percent of the population lived in those States.
The eight Mountain States spent $1.6 million, less than any of the
other geographic divisions. No Rocky Mountain State spent more
than $260,000 on water quality control. In the Northeast region,
by contrast, no State spent less than $530,000.4
Table 2 shows spending for air quality control by region. It shows
that the three Middle Atlantic States and the five Pacific States led
all others by far in average expenditures.
-------
3078
LEGAL COMPILATION—GENERAL
Figure 1
Funding and Manpower for State and Local
Water Pollution Control Agencies
MANPOWER
(in thousands of man-years)
FUNDS
(in millions) I
$ 44.2<2>
FY 1971
FY 1972
'Total man-years supported by Federal, State and Local funds
2 State funds
Source: Environmental Protection Agency, 1972
Figure 1 does not include expenditures for building waste treat-
ment facilities. In fiscal year 1971, States and communities contrib-
uted $2.17 billion in grants and loans to help pay for construction of
municipal sewage treatment facilities. New York State has mounted
a large-scale effort for this purpose over the past few years. The first
phase of its pure waters program, started in 1968, is finished. Under
this program, 352 sewage treatment projects have been built or are
underway at a cost of slightly over $3 billion. A $1.2 billion bond
issue has been adopted by the New York legislature to carry this
work forward and to undertake other environmental programs.5
The bond issue must be approved by the voters in the November
election. Of the $1.2 billion, $650 million would be used to con-
tinue cleaning up the State's waters; $150 million is earmarked
for public air pollution control facility grants; and $400 million
is to preserve and enhance the State's land resources, manage solid
waste, and provide fishing and other recreation opportunities.
-------
GUIDELINES AND REPORTS 3079
Figure 2
Funding and Manpower for State and Local
Air Pollution Control Agencies
MANPOWER
(in thousands of man-years)
FUNDS
ruiiLJO -«-^«
in millions) I
$56.8
FY 1971
FY 1972
1 Total man-years supported by Federal, State and Local funds
2State and Local not including Federal Fund';
Source: Environmental Protection Agency, 1972
Several other States passed or authorized bond issues for sewage
treatment and other environmental facilities last year. Texas voters
approved a $100 million bond issue for environmental purposes.6
Vermont authorized $50 million in bonds over a 10-year period for
the construction of municipal water pollution control facilities.7 The
Oregon legislature directed the State's Environmental Quality Com-
mission to issue $100 million in bonds for pollution control.8 In
Minnesota, the legislature appropriated $10 million and authorized
a $25 million bond issuance to provide grants to municipalities for
construction of sewage disposal facilities.9 In Missouri, the legislature
passed a $20 million sewage treatment 'bond authorization, which
voters must approve in the next election.10
Some States have developed new means to raise funds for pol-
lution control. Wisconsin passed a law levying a fee to cover monitor-
ing costs for both air and water pollution. Under the law, the State's
Department of Natural Resources can require all persons (except
-------
3080
LEGAL COMPILATION—GENERAL
.State ^emm«nt ixpeiHtiturt far Water Quality Confwl,
by Region and Geographic Mvi$l(te, Fiscal Year 1969-70
(Thousands of dollars)
Total (50 States)
Northeast (9 States) '
«ew Enp tend (€ state*)
Middle Atlantic (3 States)
l (7 States)
Soirth (1* Suites)
South Atlantic (8 States)
(4 States)
92*557
30,760
61,797
26,073
23,231
2,842
19,880
11,767
1,759
. 6.3S4
18,578 ,
1.606
16372
, 10,284
8,127
£0,599
, 2,173
4,646
406
' 1,243
1,471
440
1.5R9
1,429
301
3,394
Source? U.
Bureau of Census,
;;i;r»p»ii»
*
-------
GUIDELINES AND REPORTS 3081
municipalities) discharging pollutants into the air or water to report
the nature, method, and amount of the discharge. The law calls for
an annual monitoring fee of up to $10,000, based on concentration
and quantity of pollutants to finance State-sponsored monitoring. The
fee is to be paid by each discharger together with a $50 administrative
fee.11 A similar law levying an air pollution monitoring fee passed the
Senate in the legislature of Michigan, a State that already has a
water quality monitoring fee.12 It still requires approval of the House.
Rhode Island is asking for voter approval in November 1972 of
a law enacted by the legislature to allow the Industrial Building
Authority to finance antipollution equipment on existing industrial
plants through a loan guarantee of up to 80 percent of the cost
of the project.13
The Ohio legislature enacted a severance tax on minerals re-
moved from Ohio. It will raise additional revenue for the State's
environmental programs with at least one-half of the proceeds being
used to reclaim abandoned strip-mined areas. The tax would
range from 4 cents per ton of coal to 1 cent per 1,000 cubic feet of
natural gas.14
stricter regulation
States have been experimenting with new laws to upgrade
and tighten their regulatory activities. In the past, most regu-
latory procedures were cumbersome and time consuming. Pen-
alties for violators of pollution laws were light. In many cases, it
was easier for firms and municipalities to pollute and pay a small
penalty than to spend money for pollution control technology.
Many States are stiffening the penalties for pollution and stream-
lining their enforcement capabilities.
air quality—In accordance with the Federal Clean Air Act, EPA set
air quality standards for six of the most prevalent air pollutants:
particulate matter, sulfur oxides, carbon monoxide, hydrocarbons,
nitrogen dioxide, and photochemical oxidants. States and other juris-
dictions were required to submit by January 1972 implementation
plans for meeting these standards or face the alternative of having
EPA write and impose its own plan. On May 31, EPA fully approved
14 plans and partially approved 41 plans.15
Table 3 shows the status of State legal authority to carry out air
implementation plans. Fifty-four States and territories now have
authority to adopt emission standards, limitations, and other meas-
ures geared to satisfy the requirements of the Federal Clean Air Act
of 1970. All 55 States and territories have authority to enforce
applicable laws, regulations, and standards. Fifty-one States and
territories have enacted authority to abate pollutant emissions on an
emergency basis. Fifty-three States and territories have authority to
prevent construction, modification or operation of stationary sources
whose emissions prevent attaining or maintaining national standards.
-------
3082
LEGAL COMPILATION— GENERAL
Thirty-four States and territories have authority to require stationary
sources to install emission monitoring devices and to report the results.
The law that Texas adopted is typical of legislation being enacted
by States to require construction permits for facilities that may emit
air pollutants. Under the new Texas law, which was passed in the
fall of 1971, applicants for construction permits must submit to the
Texas Air Control Commission copies of all specifications necessary
for determining whether the new plant will comply with State air
pollution control standards. If the permit to construct is granted,
the person in charge of the plant must apply for an operating permit
within 60 days after plant operations begin. Monitoring data may be
required.16
Alabama enacted its Air Pollution Control Act of 1971 last Sep-
tember.17 This law established an Air Pollution Control Commission
with authority to adopt air quality, emission, and emergency episode
standards. The Commission was also authorized to issue permits for
new construction and for the modification or use of any equipment
that may be a pollution source The law sets penalties of up to
$10,000 a day for violations of the Act or Commission regulations.
Legal Authority Necessary f$r Cttiyfiw Out State Air
fjirwi (M of May 26, 1972)
States with authority
L»«ii*eAh» authority
}. Adopt emission standards, limitations and other
.«w»8««««».to4tteJn«ni*ni»itt*l«i»«o«l8tlncJ«fds.
tS 4;- Pi**»nt
51- •• J . *WSs«
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-------
GUIDELINES AND REPORTS 3083
The promising new Alabama law replaced a law with many
deficiencies.
Under a new Tennessee law,18 the Commissioner of Public Health
is now able to initiate direct enforcement action, thus speeding the
procedures. Prior to this law, it was necessary for the State Air Pollu-
tion Control Board to issue an enforcement order in each case before
the Commissioner could take any action. In effect, the new law
makes the Board an advisory and policy-setting organization rather
than the primary instigator of enforcement action. In addition,
the Air Pollution Control Division of the Tennessee Department
of Public Health now has the authority to enforce specific local air
pollution regulations if local authorities do not do so. Prior to pas-
sage of the new law, it would have been necessary for the State to
take over the entire local program if there were any failure.19
In California, a so-called People's Lobby Initiative 20 appeared on
the June ballot. The Initiative proposed revolutionary means for deal-
ing not only with air pollution problems but also with powerplants,
pesticides, and oil and gas exploration. The Initiative proposed strin-
gent penalties for air polluters. In a section called "Incentive
Levies," 21 any person found to violate any air pollution law in the
Health and Safety Code would have had to pay, within 1 day, 0.4 per-
cent of his prior year's gross income and an equal sum each day until
an abatement program was undertaken. When the program was com-
pleted, the person would be refunded 75 percent of what he paid. In
the June 6 election, the entire initiative was defeated by about a 2-to-l
margin.
Under the Federal Clean Air Act, authority to regulate emissions
from new automobiles is reserved to the Federal Government—with
a special exception for California.22 To meet compelling and ex-
traordinary conditions in that State, California is eligible for a waiver
from EPA, permitting it to establish stiffer standards for new motor
vehicles than Federal standards. All State governments retain au-
thority to achieve ambient air quality by means other than emission
limits on new vehicles. Thus, State activity in this area has been prin-
cipally concerned with strengthening State inspection of emission
control devices to insure proper operation. In addition, some States
have begun to develop new plans to regulate the use of autos in order
to meet air quality standards (see Table 4).
During 1971, at least five States took additional steps to tighten
their regulations on automobile emissions. In California, legislation
was enacted requiring the use of antismog devices on all 1966-70
cars and trucks. Under the law, the State's Air Resources Board was
authorized to set standards that would significantly reduce nitrogen
oxide emissions. Motor vehicles coming up for 1973 registration
must have the devices installed.23
New Jersey enacted an amendment to its Air Pollution Control
Code24 to require annual emission testing of automobiles. Cars that
-------
3084
LEGAL COMPILATION—GENERAL
°!j'1 , , ' ti pS-r~.!*'^'!"~'*->Jt 1 f" '"a"" *>,•'- ^B-iES,'t !. i4-~ ^S f ilHsi S s"j- _
*
- •
??:!!;; .":'•' . -.
'X
"X'~
^^jf^^^^ffy,;
-
x
C i"- '-,V ,-,'•>,. ;.--» -' i.'!/>:",'!.l.-' }i',y;'J
:-, :;, ,3';,,y^^\;v«;^/s'4,y?;>t^;;
.- ^';^'iJ'V v- ^iv^lfv^Kv^v:-
''"f :;i v:': f v'' 1v -*?v' S;<";i7S;;-';';=:'
"V;:;;;|f:;|^3|f||;;|
fail the test — ^being given as part of the regular safety inspection begin-
ning July 1, 1972 — will not be allowed on the roads without corrective
measures.
Louisiana enacted legislation to require, as part of its periodic in-
spection program for automobiles, an inspection of the automotive
emission control devices required under Federal law for all models
produced or sold after model year 1968 to assure that the devices are
operative. The law also requires the Director of Public Safety to
promulgate standards for installing approved emission control devices
on new and used motor vehicles operating on Louisiana highways
by 1976.25
Oregon legislation authorizes its Department of Environmental
Quality to establish motor vehicle emission standards for existing
vehicles and to certify emission control systems. The act also pre-
scribes testing and licensing of persons to certify the devices.26
water quality — Table 5 shows the level of State activity in carrying
out water quality programs. By April 1972, all but eight States had
standards in effect which were fully approved under Federal law. All
-------
GUIDELINES AND REPORTS 3085
50 States had some form of monitoring system in effect. And over
30 States had established a permit system to control water pollution
by industry.
new regulatory controls—Considerable new State water quality
legislation control was initiated in the past year. The State of Wash-
ington enacted legislation empowering the Director of its Department
of Ecology to require the use of "all known available and reasonable
methods of treatment" of waste water discharged into the State's
waters—regardless of established water quality standards.27 Washing-
ton is the only State to adopt such an approach by legislation.
Idaho and Georgia have amended their enforcement procedures
for water pollution. In the new Idaho law, responsibility for pollution
control was consolidated in a Department of Environmental and
Health Protection. In emergencies when it is not feasible to follow the
Department's normal administrative procedures, the Idaho Attorney
General is empowered to take direct and immediate legal action
against polluters.28 Georgia amended its Water Quality Control Act
to abolish the Georgia Water Quality Board and form a new Environ-
mental Protection Division in the Department of Natural Resources
with authority over water quality. The new Division was armed with
greater enforcement authority. Included in the new amendments
were civil penalties of up to $1,000 for each violation and up to $500
for each day that such a violation continues. The law also established
civil liability for the costs of cleaning up oil and other toxic spills and
for the costs of restoring damaged natural resources. The Environ-
mental Protection Division is authorized to go to court directly
against elected officials as individuals when they fail to carry out
the provisions of the Act.29 Finally, another amendment to the Act
makes water quality data available without subpoena to private
parties in private litigation.30
In Tennessee, the 27-year-old Stream Pollution Control Act was
replaced by a new water quality law.31 Under the old statute,
polluters could only be prosecuted if they violated a special order of
the Stream Pollution Control Board. Special orders could be issued
only if pollution had already taken place. As many as eight adminis-
trative steps could be required before a discharger could be taken to
court. Because of the time limits allowed for the various steps, as
much as 2 years could go by before the Stream Pollution Control
Board could obtain a court order. The State had taken only five
pollution cases to court under the old statute and had won decisions
in only two. The new law deals directly with this problem by making
it unlawful to fail to apply for a discharge permit, to discharge wastes
without a valid permit, or to violate either the terms of a permit
or water quality standards. Firms violating the law may be fined
as much as $5,000 per day. And any manager of such facilities who
knowingly circumvents the law is liable not only for the fine but also
for a 2-year prison term.
-------
3086
Table 5
LEGAL COMPILATION—GENERAL
State Water Quality Program Elements
April 1972
ST»Tt
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
D.C.
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
Nevada
New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
Guam
Puerto Rico
Virgin Islands
MUNICIPW
iw»»stm«i
*> Municipal & Industrial Only
2 Municipal Only
3 Municipal & State Only
4 Industrial Only
Source: Environmental Protection Agency, 1972
-------
GUIDELINES AND REPORTS 3087
In Illinois, the Pollution Control Board adopted a comprehensive
set of new water pollution regulations for the State, covering both
water quality standards and water use designations. The regulations
also cover effluent standards, monitoring and reporting, waste treat-
ment performance criteria, sewage discharge criteria, waste disposal
from watercraft, discharge permits, and implementation plans.32
Legislation increasing penalties for oil spills was enacted in New
Jersey and Alaska. The New Jersey legislature passed a bill in May
1971 authorizing fines for oil spills in New Jersey waters. The new law
holds offenders liable for up to $14 million in cleanup expenses.33
In Alaska, the legislature set a maximum penalty of 1-year imprison-
ment and a $25,000 fine for oil discharges not approved by the De-
partment of Environmental Conservation.34
Florida's Oil Spill Prevention and Pollution Control Act35 was
held to be invalid by a Federal district court.36 The court held that the
law conflicts with Federal maritime law, which preempts State and
local law. Florida's law imposes unlimited liability without fault
on virtually all vessels discharging oil or other pollutants in the
State's territorial waters while going to or from Florida ports. Ter-
minal facilities are subject to the same liability. The Supreme Court
will hear an apneal by the State of Florida on the ruling.
Maine's oil discharge prevention and pollution control law, which
is similar to Florida's, is also being tested in court. It also places a fee
on all transfer of oil along the Maine coast. The fees collected are to
be used to establish and maintain an oil spill clean-up fund.37
States are increasingly using discharge permits and discharge dis-
closures as an administrative device to force compliance with stand-
ards. Maine, for example, authorized the State Environmental Im-
provement Commission to issue licenses to industries and municipal-
ities that discharge wastes into any State waters.38 In Washington, the
Pollution Disclosure Act of 1971 requires those who are dumping
pollutants into the air or water of the State to submit a record of
those discharges to the Department of Ecology.39
The Oklahoma Water Resources Board adopted a new program in
1971 requiring that major industries periodically submit detailed
chemical analyses of wastes being discharged into waterways. To
provide equivalent methods of analysis and uniformly accurate re-
sults, the State now requires that all commercial and industrial
laboratories be certified by the Oklahoma Water Resources Board.
In April 1972, the New Jersey legislature approved a bill empower-
ing the State to make industries pretreat their wastes before emptying
them into public sewer systems.40 In Nevada 41 and Alabama 42 new
laws require industries to obtain discharge permits and report waste
discharges.
Vermont enacted a law in 1969 levying an effluent fee on industrial
and municipal dischargers not in compliance with State water quality
standards.43 The latest amendment to that law was passed in the
1972 legislative session. It eliminates the effluent charge for those
-------
3088 LEGAL COMPILATION—GENERAL
industries and municipalities that are adhering to pollution abate-
ment schedules established in temporary discharge permits issued to
them by the State.44 As explained in last year's report, these tempo-
rary permits are given to dischargers who are not in compliance with
water quality standards but are working toward them. Under the
original law, only holders of "discharge permits," who are in com-
pliance with standards, were exempt from the fee.
Minnesota, Indiana, and New Hampshire also took steps to control
pollution of their rivers and lakes. Minnesota imposed controls on
wastes dumped from boats. The Minnesota legislation requires water-
craft to provide retention facilities in lieu of treatment devices and
authorized the Pollution Control Agency to speed up the rate at
which devices must be installed for particular waters.45 Indiana levied
an 8-cent tax on marine gasoline and will use the income for anti-
pollution purposes.46 New Hampshire enacted legislation in June
1971, making persons who unlawfully discharge contaminants into
State waters liable to the State for any damage to fish or other
aquatic life or wildlife and their habitat.47
A number of States have recognized the pollution problems caused
by feedlot operations and are taking steps to control and regulate
them. Sixteen States now either have specific laws and comprehensive
regulations on feedlots or are in the process of developing them.
During the past year, Minnesota adopted regulations and standards
governing the storage, collection, transportation, and disposal of
wastes from feedlots. The regulations require permits for the con-
struction and operation of feedlot waste disposal systems.48 New
Indiana legislation authorized the State's Stream Pollution Control
Board to regulate feedlots.49 South Dakota adopted new regulations
spelling out procedures for securing a permit to discharge waste from
a feedlot. It also passed regulations for operating water pollution
control facilities for livestock enterprises.50
greater state involvement—In 1969, Ohio created the Ohio
Water Development Authority (OWDA) to help provide sewage
treatment systems to municipalities and industries. This year Ohio
empowered OWDA to take over and improve any sewage systems
that fail to meet the standards set by the Water Pollution Control
Board.51 In addition, Ohio's Department of Natural Resources has
been combating water pollution by wielding its enforcement au-
thority under the 3-year-old Stream Litter Law.52
Some States are attempting to develop area or watershed protection
programs. For example, California is working jointly with Nevada on
a comprehensive watershed protection program in the Lake Tahoe
area. An advanced waste treatment plant installed on the California
side of the border provides 98 percent treatment before the effluent
is pumped to a storage reservoir outside the Lake Tahoe drainage
basin. In Virginia, the State Water Control Board is developing plans
for a project described as "Tahoe East" at the Occoquan Reservoir.
-------
GUIDELINES AND REPORTS 3089
The board made a major break with the past by adopting a policy
of treating the sewage effluent to very high levels to permit its reten-
tion in the watershed and to insure safe use for the water supply.
The plan calls for using the technology developed at the advanced
South Lake Tahoe Treatment Facility.
New Hampshire also enacted legislation establishing basin-wide
pollution control facilities in the Winnipesaukee River Basin. The
facilities will be planned, constructed, and operated by the New
Hampshire Water Supply and Pollution Control Commission if the
affected municipalities concur. This is a further example of the more
direct State involvement in sewage treatment noted in last year's
report, which discussed ongoing programs in Maryland, New York,
and Ohio.53
Basin plans, required by EPA regulations as a precondition to
receiving waste treatment construction grants,54 are becoming a
major tool for State involvement in comprehensive water quality
planning and implementation. The basin-wide approach permits
more effective control of pollution at lower costs than if individual
communities worked independently on the problem.
sediment and erosion control—Sediment resulting from soil
erosion is the Nation's major water pollutant by volume and often
carries other harmful pollutants such as nutrients and pesticides. Farm
and forest lands needing erosion control are still the primary sediment
sources, but other sediment sources—such as residential, indus-
trial, commercial, and institutional construction in urbanizing areas,
highway and road'building, and surface mining—present growing
problems.
Major responsibility for the prevention of soil erosion has been
vested in soil conservation districts in each of the 50 States, Puerto
Rico, and the Virgin Islands. There are now 3,027 of these districts,
with boundaries mainly following county lines. They include over 98
percent of the privately owned land in the Nation. In each State,
the districts are supervised by a State agency, usually a soil and
water conservation commission.55 The districts provide services to
landowners in evaluating their conservation problems, determining
land capabilities, and installing structural and vegetative measures
and management systems designed to meet conservation requirements.
The prevention of erosion and the control of sediment have been
prime objectives of conservation districts since their inception. Con-
servation plans developed for rural landowners give first priority to
erosion control. Also, in some areas where highways, commercial
developments, and urban housing are being concentrated, creating
major sediment problems, districts have developed land use, erosion
prevention, and sediment control programs with States, counties,
towns, and cities.
Most district work has been carried on with landowners on a volun-
tary basis. There is a growing recognition, however, that some form
-------
3090 LEGAL COMPILATION—GENERAL
of regulatory authority is needed to control sediment. In 27 States 56
and Puerto Rico, districts are authorized to issue land use regulations
for controlling soil erosion. Because most of these State laws require
a hearing and referendum before any such regulation may be enacted
by the district, the provisions have not been used to any great extent
in the past. Only two soil conservation districts have land use regula-
tions currently in effect, one in North Dakota and the other in
Oregon.57
Some States have enacted new legislation to strengthen State pro-
grams for the control of erosion and sediment. Iowa, in 1971, enacted
a law which requires the State's conservation districts to adopt regu-
lations to establish soil loss limits and provide for their implementa-
tion. Districts are authorized to require landowners to employ sedi-
ment control practices. However, no landowner may be required to
establish any new practices unless Federal or other public cost-sharing
funds have been approved and made available to the landowner in
an amount equal to 75 percent of the cost.58
Ohio amended its Soil and Water Conservation District Law in
January 1972 to authorize the Director of Natural Resources to de-
velop a procedure for coordinating agricultural pollution abatement
and urban sediment control programs on the basis of standards for air
and water quality set by the Ohio Air Pollution Control Board and
the Ohio Water Pollution Control Board.59
The Virgin Islands enacted legislation in March 1971 which re-
quires the Virgin Islands Soil and Water Conservation District to
prepare and adopt regulations designed to prevent improper develop-
ment of land and other harmful environmental changes, including
comprehensive erosion and sediment control measures. Such measures
are applicable to both public and private developments, including the
construction and maintenance of streets and roads. Before land is
cleared, graded, filled, or otherwise disturbed, earth change plans
must be submitted for approval as conforming to the Islands' environ-
mental protection plan.60
The pioneering State program for controlling nonagricultural
sediment was the 1970 Maryland law which established the first com-
prehensive Statewide regulatory system.61 Other States, such as Vir-
ginia, are considering similar legislation.
phosphates—Some cities and States have continued to enact
legislation to curb the level of phosphates in detergents. Eight States
now have legislation regulating or affecting phosphates: Florida,
Indiana, Maine, Michigan, Minnesota, New York, Connecticut, and
Oregon.
The New York law provides that no household cleansing product
can be distributed or sold if it contains phosphorus in excess of 8.7
percent by weight. And after June 1, 1973, phosphorus will be
banned from New York cleansing products. The State also provided
for labeling and for control of other substances in cleansing products
-------
GUIDELINES AND REPORTS 3091
which might prove environmentally harmful. Another important
aspect of this bill is that the authority of local governments to regu-
late in this area is totally preempted by the State.62
The Connecticut law also bans the sale of detergents with more
than 8.7 percent phosphorus by weight. The law also requires that
phosphate content be labeled. After June 30, 1973, all phosphates
will be banned with the exception of detergents manufactured for
use in machine dishwashers, beverage and food processing, and indus-
trial cleaning equipment.63
Maine,64 Michigan,65 and Florida66 all have newly enacted laws
covering phosphates and other harmful materials in detergents. The
laws of Maine and Michigan set limitations similar to those of New
York and Connecticut. The Florida law bans the sale after Decem-
ber 31, 1972, of those detergents "which are reasonably found to
have a harmful or deleterious effect on human health or the
environment."
The Indiana legislature set January 1, 1973, as the effective date
for banning the sale of phosphate detergents. The deadline is ex-
tended to April 30, 1973, for detergents that will enter waste waters
from commercial cleaning establishments or other waste waters that
do not enter public sewers or streams.67
Oregon's law68 requires labels on all cleaning agents sold in the
State to show the phosphate content by weight, including grams per
recommended use level. Phosphate control legislation is pending or
being carried over from previous legislative sessions in eight other
State legislatures: Alaska, Hawaii, Illinois, Iowa, Kansas, Maryland,
Massachusetts, and Missouri. The legislatures of Arkansas69 and
Montana 70 passed resolutions requesting the Congress to investigate
the problems of phosphate control.
On September 15, 1971, Federal agencies indicated that a number
of phosphate substitutes for detergents were hazardous to health.
They also announced a program to identify bodies of water
eutrophied by phosphates and indicated that EPA will work with
States and municipalities to upgrade sewage treatment facilities
on such waters to remove phosphates. They suggested that State
and local governments reconsider policies that might unduly restrict
the use of phosphates in laundry detergents in view of health
considerations.
ocean dumping—Rhode Island enacted a bill requiring anyone
intending to dump or transport waste or dredged materials within
the territorial waters of Rhode Island to obtain a permit from the
State Director of Natural Resources. Under the law, restricted mate-
rials include silt, mud, shale, rock, muck, sand, garbage, or sewage.
Applications for permits and public hearings are required. After a
permit has been issued, a State inspector must be aboard the tow
vessel at all times during the transporting and dumping operation.71
-------
3092 LEGAL COMPILATION—GENERAL
New Jersey adopted the Clean Oceans Act of 197172 and began
preparing regulations to control the dumping of sewage, industrial
wastes, and other pollutants into the sea. It is estimated that 88 per-
cent of all East Coast ocean dumping from New Jersey of sewage
sludge occurs within a few miles off the New Jersey Coast.73 Of that
total about 30 percent of the sludge originates in New Jersey itself.
Under this Act, the New Jersey Department of Environmental
Protection has designed dual purpose regulations. The first purpose
is to gather data on the scope, size, and methods of existing ocean
dumping off the New Jersey coast. The second purpose is to impose
an outright ban on ocean disposal of dangerous wastes, especially
those for which adequate land-based disposal or treatment techniques
already exist. Regulations to cover all dumping will be developed
by the Department of Environmental Protection.
solid waste—Thirty-two States now have solid waste control laws,
with 25 States requiring solid waste disposal permits (see Table 6). In
many cases, however, implementation is left largely to local author-
ities. And as can be seen in Table 7, a number of States have com-
pleted statewide solid waste disposal plans.
Florida is the first State in the Southeast to adopt a long-range
solid waste disposal plan. The program begins with a plan to eliminate
150 open trash dumps by July 1972. Projections for 1990 show a
solid waste collection in the State of 22 million tons of trash, com-
pared with 7.5 million tons now.
The New Jersey Board of Public Utility Commissioners issued
regulations in July 1971 for solid waste collection and disposal.
New Jersey, the only State in which the refuse industry has been
designated as a public utility, will require that anyone engaged in
solid waste collection or disposal obtain a certificate of public con-
venience and necessity. Rules have been established to govern licens-
ing and operations.
Oregon enacted legislation during the 1971 session that consoli-
dates statewide solid waste management responsibilities in the De-
partment of Environmental Quality.74 It provides for a permit system
for establishing and operating solid waste disposal sites. The law also
provides eminent domain to acquire sites.
Michigan's Solid Waste Management Act went into effect in early
1972. The law covers planning and operation of refuse management
systems, licensing and regulation of garbage and refuse disposal
operations, and regulation of collection centers for junked vehicles.
Under the law, every city, village, or township with a population of
at least 10,000 and every county must submit a solid waste manage-
ment plan to the Director of Health for review and approval before
July 1, 1973.75
Nevada is also adopting the statewide approach to solid waste
management. During the 1971 session its legislature passed a bill
ordering the Health Division to establish such a system.76
-------
GUIDELINES AND REPORTS
3093
-------
3094 LEGAL COMPILATION—GENERAL
South Carolina's Pollution Control Authority recommended in its
official State plan that solid waste be managed on a county-wide
basis. The Pollution Control Authority also recommended using sani-
tary landfills. The authority counted only 5 that are operating satis-
factorily throughout the whole State and said 18 were required.
Illinois and Vermont joined Oregon in legislating to control the
problem of throwaway beverage containers. Under the Oregon law,77
a 5-cent refund value is set on all containers for beer and soft drinks
sold in the State. To promote use of beverage containers of uniform
design, a 2-cent refund value is established if the container is inter-
changeable. The Oregon law also banned all cans with pull tabs and
detachable lids. The new regulations proposed by the Illinois Polllu-
tion Control Board on November 15, 1971, would require all soft
drink and malt beverage containers to be redeemable by the con-
sumer for a minimum of 5 cents at the retail level. The proposal was
based on the recommendation of the Illinois Solid Waste Manage-
ment Task Force. At the time of this report, the proposed rules are
being challenged in court. The law passed by Vermont bans all non-
returnable beverage containers by 1973.78 Several years ago, Vermont
abandoned a law banning nonreturnable beer bottles because the
advent of beer cans made it ineffective.
noise—Continuing last year's trend, State legislatures have been
active in considering, proposing and passing antinoise legislation.
Comprehensive legislation was enacted in New Jersey in January.
Under that law, the Department of Environmental Protection can
regulate noise that is harmful to physical health or enjoyment of life.
A 13-member council was also established by the Act to review any
regulation that the department proposes. Fines of up to $3,000
would be levied for each violation.79
The North Dakota legislature vested antinoise authority in the
State Department of Health. The department was charged with
developing rules, regulations, and standards for the control of all
types of industrial, agricultural, and community noises. The stand-
ards aim to minimize hazards to health and safety caused by excessive
noise. The law covers noise from such diverse sources as farm ma-
chinery and rock bands but excludes aircraft.80
On December 6, 1971, Illinois enacted antinoise legislation that
authorizes the State's Pollution Control Board to work with the
Illinois Institute of Environmental Quality to establish categories of
noise emissions and to study the technological and economic
feasibility of noise level limits. It specifies that both people and
property should be protected from excessive noise pollution.81
Colorado has also adopted legislation on noise. Its new law limits
noise levels for various sources, time periods, and locations.82
Massachusetts enacted a law regulating the operation of snow-
mobiles. The new law sets up a two-step schedule for noise controls.
Prior to July 1, 1972, snowmobiles producing a sound level of more
-------
GUIDELINES AND REPORTS
3095
Table 7
Progress in State Solid Waste Management Plans,
June 1,1972
• ^•••••.^..:.-
• *' 7 '..*'.-'-4'\"v';.'i';-''<".", Inventory
.1 '"''$' ~, '!£'!•*',&'-'"t-~ i stage
Plan draft
stage
* ,,r'V;"W*|**.•?„"--•';-• \/ •.
•^''^"-"^•iJisittLii^i^ijwta*
k^^tlp^l'^rv''
ir; ;>:.:|t^if '^vV'IfA,'!-! "
|^i .;iijfti^^ir«!,:;^*»*5'-"';;,: _
»A:*:Sl'&«^&ifiir'i,'^-"*J' •:-* "
' y s/st^^wr"*^ * --^^ >; *«^|B,^|^|;j-.^?r •
v ^.lisiK^'SllS^i'^V
,' :. cJ •-: -.
Plan
completed
Source: Environmental Protection Agency, Office of Solid Waste Management Programs
-------
3096 LEGAL COMPILATION—GENERAL
than 82 decibels were outlawed. After July 1, 1974, the ceiling is
reduced to 73 decibels.83
Michigan enacted new legislation giving the State authority to
establish rules for operating snowmobiles and to set noise standards.
The law also authorizes the State to tighten registration procedures
and to provide for the protection of life, private property, and
natural resources.84
Vermont also enacted legislation restricting off-road recreational
vehicles on public land to areas designated by the Secretary of Envi-
ronmental Conservation.85 Vermont's new law also provides that
snowmobilers must have permission to enter private property. Noise
levels must be reduced to 82 decibels this year and thereafter to such
levels as the Secretary may specify.
radiation—A number of States have moved to regulate radioactivity
in the environment. Three States—Minnesota, Maryland, and Ore-
gon—have issued water use permits, containing limitations on radio-
active effluents, to utilities constructing nuclear reactors.
The legal uncertainty reported in last year's Annual Report con-
cerning the authority of the States to regulate radioactive emissions
from nuclear powerplants was removed on April 3, 1972, when the
Supreme Court handed down its decision in Northern State Power
Company v. Minnesota.86 The Court upheld the decision of the U.S.
Court of Appeals that a State is without authority to impose radia-
tion protection standards on activities licensed by the U.S. Atomic
Energy Commission. The State had attempted to set more rigid lim-
its on a nuclear powerplant's radioactive discharges. Briefs had been
filed in support of Minnesota by the States of Maryland, Michigan,
New Mexico, Vermont, and Wisconsin.
Three States—New Jersey, Ohio, and Michigan—initiated special
studies of nuclear power within their borders. In October 1971, the
Governor of New Jersey appointed an interdepartmental nuclear
energy council to coordinate that State's policy on the peaceful uses
of nuclear power. The council was directed to make thorough and
comprehensive studies of proposed nuclear powerplant locations
and to analyze their environmental impact. The directive specified
that the possibility of thermal pollution and excess radiation dis-
charges must be considered.
The Ohio Department of Natural Resources ordered an assess-
ment of the impact of that State's first two nuclear powerplants. The
7-month study, which will be paid for by the utilities, will consider
the impact of thermal and other discharges as well as the social
impact of the Davis-Besse and William Zimmer nuclear plants. The
study will also probe the effects of the plants on aesthetic values,
on nearby recreational activities, and on other aspects of the environ-
ment. According to the State, if the study shows that the present
design of a plant's systems or procedures pose an environmental or
social problem, alternatives will be reviewed.
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GUIDELINES AND REPORTS 3097
Michigan will study the environmental effects of the Palisades
nuclear plant site on Lake Michigan. The study's principal aim is
to generate additional practical knowledge of the effect of the dis-
charges from cooling towers on adjacent human activity. Specifically,
the Michigan study will investigate the ways that cooling tower opera-
tions affect highway conditions, human environment, atmospheric
changes, and agriculture.
pesticides—Several States enacted pesticide legislation during 1971.
Most of the legislation either authorized a State agency to issue
regulations on pesticide use or established lists of acceptable
compounds.
Montana passed a Comprehensive Pesticides Act in 1971 to control
the distribution, sale, application, disposal, and transportation of
pesticides and related devices. The new law also calls for the regis-
tration of pesticides and licensing of applicators and establishes pro-
cedures for appeal and penalties for violators. A temporary advisory
committee was also established.87
In March 1971, New Hampshire enacted legislation empowering
the Pesticide Control Board to prohibit or restrict the sale and use
of pesticides that the Board finds harmful to man or other nontarget
organisms.ss A Michigan law that became effective on January 1,
1972, directs the State Department of Agriculture to issue a list of
pesticides that are potentially harmful to humans. Retailers and
wholesalers must obtain licenses to sell such pesticides and must re-
port all sales of such pesticides. Persons seeking an applicator's license
will be required to show that they understand the acceptable uses and
potential dangers of the product.89
The New Jersey legislature enacted a pesticide bill in June 1971.
It authorizes the Department of Environmental Protection to estab-
lish regulations governing the sale, use, and application of pesticides
in that State. The Department is authorized to file an injunction
against anyone violating the regulations and to impose penalties up to
$3,000 for each day of violation.90
The North Carolina legislature enacted a comprehensive Pesti-
cide Control Act in July 1971. The law is designed to regulate the
use, application, disposal, and registration of pesticides. A Pesticide
Control Board was also established and charged with developing a
list of restricted-use pesticides. The Board is also to write regulations
on registering such pesticides and to develop a permit system for
applicators.91
In California, two new pesticide laws were passed in 1971. One
requires the licensing of pesticide advisers and establishes permits for
pesticides. The other new law prohibits the use of misleading adver-
tising and bars the handling of pesticides and containers except in
compliance with regulations issued by the California Department
of Agriculture.92
Georgia launched a pesticide usage profile to determine the type,
quantity, and location of pesticides used in the State. The profile will
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3098 LEGAL COMPILATION—GENERAL
also be used to pinpoint specific environmental hazards associated
with the formulation, transportation, use, and disposal of pesticides
and their containers. A Pesticide Usage and Application Act passed
the 1972 Georgia General Assembly. The Act gives the Georgia De-
partment of Agriculture regulatory responsibility, but requires the
Commisioner of Agriculture to consult with the Director of the Di-
vision of Environmental Protection prior to setting standards for
storing or disposing of pesticides and pesticides containers.93
Several other States passed pesticide laws. Among them were Dela-
ware,94 Alabama,95 Indiana,96 Texas,97 and Utah.98 Texas empowered
its Structural Pest Control Board to establish standards and to issue
regulations and licenses. Utah gave similar responsibility to its Com-
missioner of Agriculture.
The Connecticut Department of Environmental Protection issued
new regulations in December 1971 to control insecticide use against
defoliating insects such as the gypsy moth. The regulations require
permits for aerial spraying for agricultural purposes. And they urge
treatment of defoliating insects from the ground in areas of intensive
human use. The regulations also contain an outright ban on the use
of broad spectrum pesticides for nonagricultural purposes.99
In May of 1971, the California Department of Agriculture issued
an emergency regulation setting mandatory intervals between the
time certain crops are treated with pesticides and the time when
workers can reenter fields where "substantial contact" with the treated
crop will occur. The regulation requires the labels on pesticide con-
tainers to list the appropriate timetable laid down in the regulation.
Until products have been labeled, manufacturers must supply dealers
with supplementary printed directions.
Proposition 9, sponsored by the People's Lobby and voted on in
the June California elections, would have prohibited the use of
most persistent pesticides. No person could use, manufacture, or even
possess them except under a permit from the State Director of Agri-
culture. The Director would need authorization of three-fifths of the
members of each House of the legislature in order to issue the permit.
This initiative was not enacted into law.
national symposium—A National Symposium on State Environ-
mental Legislation was held in Arlington, Va., on March 15-18, 1972.
It was sponsored by the Council of State Governments, the Council on
Environmental Quality, the Environmental Protection Agency, and
the Department of the Interior. The symposium brought together for
the first time all elements of State government and representatives .of
Federal agencies to develop State legislation covering a broad range
of environmental problems. Suggested legislation prepared by the
workshops will be submitted to the Council of State Governments
for inclusion in the Council's annual recommendations to the States.
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GUIDELINES AND REPORTS 3099
organizing for action
Last year's report dealt in some detail with the way that several
States reorganized programs to deal with their greatly enlarged
responsibilities in the environmental area. The theme of last year's
organizational effort by the States was centralized direction and
control. That same theme continues throughout the period of this
year's report. More States are also beginning to follow the Federal
Government in analyzing the impact on the environment of their
programs and activities.
On May 26, 1971, Nebraska enacted an Environmental Protec-
tion Act, creating a new Environmental Control Council and a De-
partment of Environmental Control. The Council has authority and
responsibility to adopt standards and regulations and to issue and
revoke permits. The Department has administrative and enforce-
ment responsibility for water and air pollution control and land use.100
On July 1, 1971, New Mexico established an Environmental
Improvement Agency under the 1971 New Mexico Environmental
Improvement Act.101 The Act empowers the agency to administer
all environmental and consumer protection programs in the State.
A five-member Environmental Improvement Board appointed by
the Governor is responsible for promulgating standards and regu-
lations for food protection, product safety, water supply, liquid and
solid waste disposal, air quality management, radiation, noise and
vector control, environmental injury protection, toxic environmental
chemicals, and occupational health and safety. The agency has five
operating sections—consumer protection, general sanitation, water
quality, occupational health, and radiation protection and air qual-
ity—as well as an environmental laboratory.
Connecticut created, in October of 1971, a Department of Envi-
ronmental Protection, which consolidated most of the State's anti-
pollution programs. The new Department replaces 16 independent
agencies, boards, and commissions.102
Arkansas in its 1971 legislative session created a Department of
Pollution Control and Ecology as one of the major departments of
the State government. One of its functions is to make loans for financ-
ing waste water treatment plants. The Act also empowered the De-
partment to issue revenue bonds in amounts to be authorized by the
legislature, to issue permits, to collect fees, and to approve reclama-
tion plans for strip mining.103
Alaska in 1971 created a Department of Environmental Conserva-
tion that is charged with overall coordination and planning related
to the environment of the State. It will promulgate and enforce
regulations and standards for all sources of air pollution and both
surface and subsurface water pollution and for land use. The Depart-
ment has five divisions: marine and coastal zone management;
terrestrial ecology and environmental management; water and air
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3100 LEGAL COMPILATION—GENERAL
quality control; land use and urban development; and permafrost
and soils engineering.104
The Louisiana legislature voted to continue its Joint Committee
on Environmental Quality.105 All legislation relating to control of
the environment is referred to it, and all action is deferred until the
committee completes a full report. One of the major subjects to be
considered by the committee is the problem of industrial waste
disposal.
At least seven States—Montana,106 Washington,107 Delaware,108
New Mexico,109 North Carolina,110 Wisconsin,111 and Indiana112
have enacted legislation in 1971 and 1972 requiring some form of
environmental impact statement at the State level, similar to the
102 statements required at the Federal level by the National Envi-
ronmental Policy Act (NEPA). Arizona and Hawaii have adopted
similar requirements through administrative procedures and execu-
tive orders. Together with California, which in 1970 became the
first State to enact such legislation,113 at least 10 States and the
Commonwealth of Puerto Rico 114 now have some form of impact
statement requirement for State actions affecting the environment.
Although many of these State provisions parallel the provisions
of the National Environmental Policy Act, some differences in ap-
proach are evident—in both the scope and the administrative means
of implementing the requirement.
Montana's Environmental Policy Act (MEPA) took effect on
March 9, 1971. The 13-member Environmental Quality Council
established by the law includes representatives of the legislature,
the public, and the Governor's office. Interim guidelines on the prep-
aration of environmental impact statements were issued in October
1971, and by March 1972, 53 environmental impact statements or
negative declarations had been filed with the Council. The Council
also reviews and comments on Federal environmental impact state-
ments. Although MEPA closely follows NEPA in many respects,
the State's Environmental Quality Council is an arm of the legis-
lature rather than the executive branch. As such it can maintain
an oversight role over executive agencies. The Council acts as an
ombudsman for the public and has statutory powers enabling it to
investigate, on its own initiative or on request of the public or
members of the legislature, agency compliance with MEPA or other
environmental protection laws. The Council's investigative powers
include performing audits, convening formal hearings, and issuing
subpoenas.
In Wisconsin, a newly established Bureau of Environmental Im-
pact is responsible for investigation and evaluation of the total im-
pact of both public and private projects on the environment.
Arizona's Game and Fish Department is required to complete an
environmental impact statement prior to the start of construction
on all large-scale water development projects. The statements follow
the guidelines of the President's Council on Environmental Qual-
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GUIDELINES AND REPORTS 3101
ity.115 In Hawaii, 46 statements covering projects built on State lands
or with State funds have been filed with the State's Office of Environ-
mental Quality Control, The Indiana law and the North Carolina
law both require environmental impact statements to be filed with
the Governor. They include the same basic information required by
section 102 of the National Environmental Policy Act.
innovative programs
Many States, instead of waiting for environmental problems to
occur, are taking action to anticipate and avoid them. New tech-
nology, comprehensive land use planning, powerplant siting, reserva-
tion of natural areas for park lands, and preservation of wildlife are
examples of the direction in which States are moving.
new technology
In New York, the Department of Environmental Conservation
moved from the laboratory to the pilot plant phase in testing the
physical-chemical sewage treatment process. The process uses chem-
icals, rather than bacterial action, to treat sewage. The process is
expected to reach high tertiary levels of treatment at less cost than
a combination of conventional and third-stage plants. The Depart-
ment also took a step toward turning a pollutant into a beneficial
resource. The Department's Office of Recovery, Recycling, and
Reuse is studying ways to use waste heat from the Niagara-Mohawk
Powerplant at Glenmont for climate control. To achieve a cooling
effect, heated water from the plant is fed through pipes in the soil,
run through dry heat exchangers, and then sprayed into the air inside
a structure located near the powerplant. The direct use of heated
water is under study in several agriculture and marine fish farming
projects.
In June 1971, Pennsylvania entered into a contract with the
General Electric Co. to establish a 17-station automatic telemetered
air monitoring system. This system, which will cost $2.5 million, will
let the State obtain "real time" information on air quality to permit
immediate action in cases of air pollution "episodes." The remote
air sampling stations will measure atmospheric concentrations of
particulate matter, sulfur oxides, hydrogen sulfide, oxides of nitro-
gen, carbon monoxide and other contaminants. The first stations
were to be installed in June 1972.
Ohio announced a plan to use proceeds from its proposed sever-
ance tax on minerals 116 to demonstrate a method to control mine
drainage. Piles of acid-producing mine refuse are to be removed
and burned in suitably prepared sites in accordance with air pollu-
tion regulations. Refuse piles that are not producing acid will be
reshaped to prior land contours and reclaimed by seeding. A prin-
cipal part of the project will involve sealing about 100 openings to
underground mines that are now sources of acid discharge.
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3102 LEGAL COMPILATION—GENERAL
land use regulation
The Quiet Revolution in Land Use Control™ a study prepared
for the Council on Environmental Quality, analyzed the land use
laws of several States. Last year's chapter on State activities included
several examples from that study. This chapter discusses some addi-
tional examples of State activity in land use control.
A recent survey of the States,118 conducted for the Council of State
Governments,, reported that the States "appear to be in the process
of embarking on a 'movement' toward assuring a greater responsi-
bility for land resource management than had heretofore been the
case." 119 Of the 38 responses to the survey, all but 3 recorded a
high degree of interest in problems of land management. The survey
indicated that three basic concerns underlie the interest of State
governments in this area. The States are concerned about possible
limits on future recreation opportunities; the rapid, uncoordinated,
and piecemeal industrial, commercial, and residential development
going on within their boundaries; and the lack of unified criteria
by which to evaluate developments proposed in environmentally
critical areas.
comprehensive controls—In April, Florida enacted its compre-
hensive Environmental Land and Water Management Act of 1972.120
It provides a mechanism by which the State government can control
key development decisions that affect the future of Florida. The Act
closely follows the principles laid out in the President's proposed
National Land Use Policy Act now pending before the Congress.121
Under the Florida legislation, the Division of Planning is directed
to designate—subject to the approval of the Governor and his
cabinet—"areas of critical State concern." The agency exercises con-
siderable discretion in designating these areas, which are broadly
defined in the statute. But the total of the areas designated at any
given time cannot exceed 5 percent of the total area of the State.
This limitation has been justified as helping to insure that the agency
concentrates its efforts on the truly critical areas in the early operation
of the Act. It also was designed to assure that the designations would
not be used as a blanket "stop-growth" tool.
In designating a region of critical State concern, the State agency
must draw up principles to guide development in the area. The local
government then has 6 months to submit land development regula-
tions that will guarantee that these general principles are followed. If
the local government and the State agency cannot reach agreement
on appropriate regulations, the State is empowered to adopt its own
regulations for the area.
The second major technique in Florida's Management Act is the
designation of development of regional impact. The Act authorizes
the State Land Planning Agency to submit to the next session of the
legislature regulations defining categories of development that have
regional impact and that should therefore be subject to review at the
State level. In particular, the Act refers to development that has a
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GUIDELINES AND REPORTS 3103
substantial impact beyond the boundaries of any single county. These
regulations will take effect when approved by the legislature next
year.
Decisions regarding proposals to undertake development of regional
impact; or to undertake any development in areas of critical State
concern, will continue to be made by local governmental authorities
in the same manner as before. But the Division of Planning may ap-
peal those local decisions to the Governor and his cabinet sitting as
an adjudicatory commission. In reviewing these cases, the Governor
and cabinet are authorized to take into account impacts of the de-
velopment proposal both outside and within the immediate local
jurisdiction.
Virginia also enacted a. Land Use Policy Act for critical environ-
mental areas. The Act directs the Division of State Planning and
Community Affairs to make a study and report upon control strategies
for use in such environmentally sensitive areas as the Division may
define.122
At the direction of the Governor, the Rhode Island Division of
Statewide Planning has undertaken a statewide environmental inven-
tory. Its objective is to gather information needed to make public
decisions on land use and development in the State. The Division has
also formulated a series of land use policies and implementing pro-
grams which it has submitted to the State legislature. Existing statutes
and programs have been identified to determine their potential in
guiding and controlling land use. But the Division's report concludes
that this potential cannot be realized because of the fragmented
nature of the statutory provisions and programs. On the basis of this
report, the Governor has proposed legislation to coordinate existing
State and local laws and programs which influence future develop-
ment and land use. The proposed legislation would require that all
actions taken by the State and local governments conform to State
land use and development policies.
In January 1972, Michigan's Natural Resources Commission
adopted an interim land use policy. It will guide State action on land
use matters in general and the Department of Natural Resources' ad-
ministration of land and water programs specifically until a formal
State plan is adopted. The objective of this policy is to insure that
all future development and use of land and water resources are orderly
and carefully controlled and in harmony with fundamental environ-
mental values and capabilities. The Commission and the Department
of Natural Resources, under the interim policy, will scrutinize pro-
posals that would spur development of private lands adjacent to or
surrounded by public lands or would eliminate or restrict public land
and water from public use. They also will scrutinize new subdivisions
or expansion of existing ones; service facilities for housing develop-
ments; business establishments in areas not presently zoned for them;
road and utility rights of way; and alterations in natural water
courses.
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3104 LEGAL COMPILATION—GENERAL
North Carolina enacted a law establishing the North Carolina
Council on Goals and Policy.123 Among the Council's assignments is
a study leading to eventual statewide land use planning.
In Arizona, two major study projects are in their initial stages.
One envisions a growth policy for the State, including seven elements:
a land use and resource analysis, identification of critical environ-
mental issues, assignment of environmental management and pro-
tection responsibilities, short-term growth analysis and policy, long-
term growth analysis and policy, and administrative and legislative
actions. The general goals of the growth policy are to conserve signifi-
cant resources and areas and to channel urban development into
the most appropriate places and forms. The second of these major
Arizona projects is a study of the trade-offs between economic devel-
opment and environmental quality. The State will examine the rela-
tionship of pollution to economic growth and will evaluate growth
alternatives.
Stabilization and direction of growth have also occupied the atten-
tion of other States. Hawaii's Commission on Population is in the
process of drafting for submission to the legislature in 1972 a report
that will deal with Hawaii's population growth and distribution. In
Colorado, the Environmental Commission recommended stabilizing
the State's population and developing a plan to distribute the future
population of Colorado with consideration for the present and future
ecological balance. The Governor of Oregon called for an end to
economic expansion and industrial development that sacrifices clean
water and air, open space, and wildlife. And in Michigan, the Gover-
nor's Advisory Council on Environmental Quality published a report
on population policy that urged the State to adopt zero population
growth as a goal for the citizens of the State.
Some States have turned to zoning laws and their permit-issuing
authorities to control and channel residential and industrial growth.
Maine's Site Selection Act, passed in 1970,124 took effect on Sep-
tember 23, 1971, and is already being tested in the courts. The law
is designed to control the development of commercial and industrial
sites and other large developments by requiring potential developers
to obtain a permit from the Maine Environmental Improvement
Commission. The pending suit against the Act springs from the
State's refusal to grant a permit for an oil desulfurization plant on
grounds that the applicant had failed to show that the operation
could be maintained without undue damage to the environment.
In November 1971, California enacted a new law authorizing
local governments to deny subdivision building permits on grounds of
substantial environmental damage.125 Oregon issued regulations to
bring wildcat subdivisions under control by making subsurface sew-
age and domestic water sufficiency a matter for prior approval by
State health officials.126
The Illinois State Pollution Control Board has proposed a permit
program for new sewer connections based on projected future devel-
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GUIDELINES AND REPORTS 3105
opment plans in order to forestall overloading of treatment facilities.
Connections to already overloaded systems have been banned since
May 1971. To help insure that a builder will not proceed too far in his
planning only to find that system capacity has been reached, the
board in March 1972 adopted procedures to allow builders to reserve
capacity by securing permits valid for up to 2 years prior to the start
of actual construction.127
protecting coastal zones and wetlands—States have continued to
recognize the need to protect two especially sensitive ecological
areas—coastal zones and wetlands. Florida's Coastal Coordinating
Council and Georgia's Coastal Marshland Protection Agency are two
examples of special State agencies established to protect coastal
resources.
Citizens in Washington State will decide among three shoreline
protection alternatives in the November 1972 election. One alterna-
tive is voter affirmation of a law that went into effect on June 1,
1971,128 which would give local governments authority to protect
shorelines. A second, Initiative 43A, would give the protection author-
ity to the State. Both proposals would include curbs on various activi-
ties in the coastal zone, including controls on offshore oil drilling.
A third alternative would be to rescind the current Act and provide
no protection at all.
The California Department of Navigation and Ocean Develop-
ment is developing a comprehensive ocean area plan based on a
complete inventory of all present coastline uses and ownership. The
plan will also describe coastal zone resources and chart guidelines,
criteria, and policies relating to allocation of use. The plan would
restrict development in coastal zone areas to activities that depend
on the coast.
Both Rhode Island and Oregon took steps to regulate shoreline
development. Rhode Island established a Coastal Resources Manage-
ment Council to safeguard Narragansett Bay, one of the State's major
natural resources. A Coast Research Center was established at the
University of Rhode Island to give the Council staff and research
services. One of the Council's first major tasks is to recommend actions
that the State should take on the location of industry on the Bay
and along the coastline.
In its 1971 legislative session, Oregon enacted a law129 creating
a Coastal Conservation and Development Commission. The Commis-
sion is required to produce a comprehensive study of coastal areas
and a plan for zoning those areas. The final plan is to be submitted
to the 1975 legislative session.
The Governor of Delaware relied upon the State's Coastal Zoning
Law 13° to deny a request by industrial and transportation interests to
build a transhipment terminal in Delaware Bay. That law, passed
last year, bars all heavy industry, such as petrochemical, steel, and
raw pulp, within two miles of the seacoast.
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3106 LEGAL COMPILATION—GENERAL
New Jersey's Department of Environmental Protection moved to
implement its authority to protect sensitive wetland areas. The
Department adopted regulations banning the dumping of garbage,
trash or rubbish; the discharging of sewage or industrial waste; the
application of persistent pesticides; and the use of vehicles in certain
defined wetland areas. The regulations establish a permit system
requiring an owner of wetlands to get permission from the Depart-
ment before engaging in any construction or certain other activities
on his land.131 Five percent of New Jersey's land area consists of
tidal salt marsh, which is critical as a nursery to many species of com-
mercial and sport fish and as a feeding ground to hundreds of species
of migratory birds.
During the 1972 legislative session, Virginia enacted a Wetlands
Protection Bill that permits localities to set up zoning boards to
determine the use of wetlands within their jurisdictions. Their model
is a sample ordinance spelled out in the bill. The State's Marine
Resources Commission will review all decisions and hear all appeals.
The Act permits any group of 25 landowning citizens to appeal
directly to the commission if they disagree with the ruling of the
local zoning boards.132
powerplant Siting—Five States—Connecticut,133 Maryland,134 New
York,135 Oregon,136 and Washington 137—now have comprehensive
powerplant siting laws. Five other States have taken less compre-
hensive steps. These are Alabama, Arizona, California, New Mexico,
and Texas. Two States—Maine138 and Vermont139—have included
powerplants under broad land use powers newly placed at the State
level. Several other States, including Illinois, Pennsylvania, and
Virginia, have siting legislation pending.
In Texas, a Governor's Advisory Committee on Powerplant Siting
was established last summer. The Committee is preparing a report to
identify the factors to be considered in establishing criteria for power-
plant location. It is expected that the formal report of the Committee
will be issued by the fall of 1972 and will contain recommendations
for new legislation.140
The State laws that have been enacted, as well as the Executive
Order issued in California,141 differ substantially in pattern. Almost
all, however, provide for review and approval of proposed power-
plant sites by a designated decisionmaking body within the State.
Maryland requires long-range planning by utilities and provides for
early hearings and site approvals. Maryland also provides for advance
State purchase of sites for later resale to the utilities. The Depart-
ment of Natural Resources in Maryland has responsibility for the
program. The Arizona law, administered by the Arizona Corpora-
tion Commission, provides for long-range planning by the public
utilities and allows for site approval only upon application for a
certificate of environmental compatibility.142
In a unanimous move, the Governors of three northwestern
States—Oregon, Washington, and Idaho—rejected any further
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GUIDELINES AND REPORTS 3107
development of the Middle Snake River and Hells Canyon as sites
for hydroelectric plants."3 The Governors acted on the assumption
that any further facilities would not make a meaningful contribution
to solving the region's energy needs but would cause irreparable
harm to the Canyon and its great ecological and historical values.
Strip mining—A number of States imposed or tightened controls
on strip mining. South Dakota,144 North Carolina,145 and Montana 14S
enacted legislation requiring the reclamation of mined lands. Virginia
strengthened its regulatory authority over strip mining operations
through new legislation under which applicants are required to pro-
vide a reclamation plan before receiving a permit.147
Missouri created a Mined Land Conservation Commission to regu-
late land mining by imposing charges based on acreage and reclama-
tion requirements.148 The Land Use Regulation Commission was
given authority over strip mine operations in Maine.149
A new law in Illinois requires bonds to guarantee the cost of strip
mine reclamation. The Illinois Act, signed into law in September of
1971, was also designed to require an analysis of potential environ-
mental effects before strip mining may begin. The prospective mine
operator must submit a feasible plan for reclaiming land and file a per-
formance bond covering the cost of reclamation. The Illinois Depart-
ment of Mines and Minerals administers the program, drawing on
the Department of Conservation for environmental expertise. The
Illinois Institute of Environmental Quality is to monitor the law's
progress and report to the Governor and the General Assembly.150
In West Virginia, a new law, the Surface Mining and Reclamation
Act, prohibits all new strip mining permits for 2 years in 22 of the
State's 55 counties. The law also raised the State's reclamation tax
on strip mine operators from $30 to $60 an acre. The State must
inspect every 15 days and inspectors can order immediate cessation
of activities if violations of State law occur. The Director of Natural
Resources and State or local prosecuting attorneys can apply for in-
junctive relief. Each permit application must be accompanied by
mining and reclamation plans prepared by a competent professional.
Plans must include impounding of all water which flows over or
through a disturbed area in order to control silt, acidity, and iron
effluents. The operator must also replace all soil and vegetation dis-
turbed by his operations and turn it to a suitable land use.151
Arkansas enacted a strip mining control law in 1971 that gives
its Department of Pollution Control and Ecology regulatory authority
over virtually all minerals, including coal, that are strip mined in the
State. A permit system and a bonding requirement were established.
Land which is strip mined must be restored as nearly as possible
to its original state, including revegetation and smoothed contours.152
Ohio also passed a strip mine law that imposed higher fees and
stricter requirements for strip mining permits. The new law raised
the bond requirements for reclaiming strip mined lands. It also con-
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3108 LEGAL COMPILATION—GENERAL
tained provisions to withhold bonds until the State sees tangible proof
of attempts to reclaim the land by grading, contouring, and
revegetation.153
preserving our natural heritage
parks and natural areas
According to the most recent estimates by the National Recreation
and Park Association, in 1970 States spent $71.7 million acquiring
new lands for State parks. They spent $125.8 million on capital im-
provements and $186.7 million on annual operations and mainte-
nance—a total expenditure by the States of over $384.1 million for
State parks. This compares with $279 million spent in 1967 and
$108 million in 1962.
Visits to State parks have increased at an average annual growth
rate of about 7 percent. Visitations to State parks in 1970 reached
483 million, of which 431 million were daytime visitors.154
The tempo of park acquisition by States has accelerated, due in
part to an increasing demand by citizens for additional recreational
land to escape from urban environments. The pace of acquisition also
has been stimulated by the States' growing awareness that the most
suitable land for public use in and around major urban centers was
often being lost to private development. Moreover, States have ac-
celerated their efforts to assure that naturally scenic lands are pro-
tected from incompatible development.
The ability of the States and local governments to acquire and
develop additional park areas has been substantially increased by
grants-in-aid from the Land and Water Conservation Fund, which
is available to finance 50 percent of the cost of projects proposed by
the States. In fiscal year 1972, approximately $255 million was ap-
portioned among the 55 States and territories from the Land and
Water Conservation Fund. This is an increase of about $70 million
over the fiscal year 1971 apportionment of $185 million.155
New York enacted legislation creating an Adirondack Park Agency
to assure that all uses of the land within the Adirondack Park boun-
daries, whether public or private, will remain compatible with the
environmental character of the Park itself. The agency is also charged
with the development of a land use plan, which not only provides
a continuing role for local government but recognizes the major
State interest in conservation, use, and development of the Park's
resources.156
Virginia, Nevada, and Wisconsin are typical of other States which
are moving vigorously to acquire new lands for park and recreation
purposes. Included in Virginia's fiscal 1972-74 budget are plans by
the Commission of Outdoor Recreation to acquire one new State
park, develop five, and complete acquisition of three others. Nevada
enacted legislation authorizing the acquisition of land for 11 new
sites and additions to 9 existing areas.157 And Wisconsin during
the past year acquired an additional 3,703 acres of park land and
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GUIDELINES AND REPORTS 3109
1,512 acres of forest land, including 634 acres acquired in three units
of the Ice Age National Scientific Reserve.
New Jersey voters in a November 1971 election approved an $80
million "Green Acres" program of land purchases to preserve open
spaces, protect wetlands and reserve land for future parks. The first
purchases of land under this program began in February 1972. The
largest parcel was an 8,000-acre section of wetlands along the Atlantic
coast.
Massachusetts moved to protect the scenic quality of its rivers. The
Scenic Rivers Corridor Preservation Act empowers the State's De-
partment of Natural Resources to issue regulatory restrictive orders
affecting all land within 100 yards of scenic rivers without compen-
sation to the landowners. An order becomes a permanent encum-
brance on the property unless a court on appeal determines that the
order is a taking of property for which compensation is required.158
Maine enacted legislation in June 1971 to regulate the develop-
ment of its wild lands. The new law will give its Land Use Regulation
Commission authority over development of about 42 percent of the
State, or about 10 million acres. The focus of the commission's
activities will be on safeguarding the wilderness areas against
"irresponsible" recreational development, strip mining, and other
such activities which might overburden and destroy water and land
resources.159
Michigan acted in two ways to protect natural areas. First, it
created a Natural Areas Advisory Council to establish categories of
land use and recommend specific programs to the Department of
Natural Resources.160 Second, it enacted a Natural Rivers Act in late
1970.161
Oregon, through administrative action by its Environmental Qual-
ity Commission, has drastically curbed harmful mining activity in
its wilderness areas. Permits are granted to mine operator applicants
only if air emissions are kept below 5 percent opacity; if water waste
discharges do not cause any measurable increase in color, turbidity,
temperature, or bacterial contamination; if there is no measurable
effect on dissolved oxygen; and if noise emissions are kept below 60
decibels.
Oregon and Connecticut employed other means to protect and
preserve natural areas. Oregon joined the list of States that have
extended property tax relief as an incentive to preserve open spaces.162
Connecticut provided for reduced tax rates for privately owned
land that is preserved for open spaces, wetlands, farmland, and for-
ests. This year the State established procedures to recapture those tax
benefits if the land is later converted to other purposes.163
protecting wildlife
Eighteen States now have some form of legislation to protect and
preserve threatened or endangered wildlife. State legislation to protect
endangered species is especially important because Federal law does
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3110 LEGAL COMPILATION—GENERAL
not currently grant legal authority to Federal agencies to protect en-
dangered species except on Federal lands. In his February 1972 En-
vironmental Message, the President proposed an Endangered Species
Act of 1972 that would grant such authority to the Federal Govern-
ment. The Department of the Interior and the International Asso-
ciation of Game and Fish Conservation Commissions are working
together to develop model State legislation in this area.
One of the principal objectives of the proposed model legislation
is to have States protect animals on the Federal endangered species
list and to authorize a responsible State agency to protect animals
facing extinction within the State.
California16* and Maryland 165 already have such laws. The Mary-
land law, which took effect in April of 1971, recognizes the Federal
list and, in addition, protects eight State animals—black bears,
coyotes, wildcats, bobcats, porcupines, mountain lions, Delmarva
Peninsula fox squirrels, and weasels. The Federal list of endangered
animals now totals 101 species—14 mammals, 50 birds, 7 reptiles,
and 30 fish species.
The Texas legislature enacted legislation protecting endangered
species, but it failed to receive the Governor's approval.166 In his veto
message, the Governor cited certain faults in the legislation that would
not have provided sufficient protection to certain species in Texas.
He predicted that improved legislation would be passed in the next
session. Nevada passed a law giving its Fish and Game Department
responsibility for protecting the habitat of endangered wildlife as well
as the wildlife itself.167 Illinois and Michigan both have bills pending
on this same subject.
increasing citizen involvement
More States are experimenting with new devices to allow citizens
to join in the fight against pollution.168 The Michigan law169 cited in
the Second Annual Report last year, which granted private citizens
broad rights to go to court against conduct that "will pollute, impair,
or destroy the air, water, or other natural resources or the public trust
therein," was the forerunner of several similar laws subsequently
enacted by other States.
Minnesota during the summer of 1971 enacted an Environmental
Rights Act.170 Under this law, citizens can bring civil actions in the
name of the State against any person to protect the air, water, land,
or natural resources located in the State. Massachusetts in September
1971 passed the Citizen's Right to Action Act.171 The law will per-
mit any 10 citizens to bring suit against a polluter if State or local
pollution control agencies are not requiring the polluter to comply
with antipollution regulations. Connecticut,172 Indiana,173 and Cali-
fornia 174 have also enacted laws based in part on the Michigan
statute.
Citizen involvement was significantly increased and encouraged
in Pennsylvania during 1971. Citizens' pollution patrols were orga-
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GUIDELINES AND REPORTS 3111
nized in various parts of the State. Training sessions were held by the
State in cooperation with the Federation of Sportsmen's Clubs to in-
struct citizens how to collect evidence to help enforce pollution con-
trol laws. Working arrangements were developed with a group of law
students in the Philadelphia area and with a group of citizens and
students in the Pittsburgh area. The law students will prepare cases
for enforcement actions and actually represent the State Department
of Environmental Resources before local magistrates. The Pittsburgh
group provides surveillance on major rivers and collects data for
prosecutions by the department.
summary
Through a gradual process of experimentation, testing, and build-
ing, the States during 1971 have exhibited their mounting commit-
ment to preserve and enhance the environment. Development of
laws to control pesticides, regulate noise, and reduce pollution and
implementation of existing laws have demanded the largest share
of State energies, but the States also have demonstrated that they
are able and willing to meet other environmental problems as well.
Comprehensive land use planning, reservation of land for open space,
preservation of endangered species, protection of wetlands and ocean
fronts, analysis of the environmental impact of State actions, and
organizations to focus manpower and resources on critical environ-
mental problems were among the other actions on State environ-
mental agendas. But gaps still remain. Cumbersome and duplicative
laws, deficiencies in staffing—both in numbers and qualifications—
and, in some cases, the hesitancy of some local enforcement officials
to enforce their laws uniformly throughout their jurisdictions are
weaknesses that need attention and strengthening.
As last year's report indicated, States serve as experimental labora-
tories for a variety of solutions to common problems. States must
innovate to deal with the myriad of environmental problems and
decisions faced by them. They have not hesitated to develop their
own solutions or adopt solutions found by other States to meet com-
mon problems. The willingness of States to innovate and to emulate
other new programs, organizations, and authorities to improve the
environment is one of the most creative aspects of our federal system
today.
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3112 LEGAL COMPILATION—GENERAL
footnotes
1. Pa. Const, art. 1, § 27.
2. N.M. Const, art. 20, § 21.
3. Ch. 630 (1971), Sess. Laws of N.G.
4. U.S. Bureau of Census, Department of Commerce, State and Local
Government Special Studies No. 6: "Environmental Quality Control"
(1972), P. 7.
5. Ch. 658 and ch. 659, N.Y. Laws of 1972.
6. Gen. and Spec. Laws of Tex., 62d Legis., Reg. Sess. 1971, p. 3845.
7. ActllF, § ll(b) (1971), Pub. Acts of Vt.
8. Ore. Rev. Stat. § 449.672 (1971).
9. Ch. 20 (1971), Minn. Laws, Extra Sess.
10. S.B. 596, 76th Gen. Assembly of Mo., 2d Sess. (1971).
11. Ch. 125, Wis. Laws of 1971.
12. S.B. 648,1971 Sess. of Mich. Legis.
13. Ch. 148, R.I. Gen. Laws of 1971.
14. Ohio Rev. Code § 5749.01-.16.
15. 37 Fed. Reg. 10842 (1971).
16. Ch. 619, Gen. and Spec. Laws of Tex., Acts, of 62d Legis., Reg. Sess.
1971, amending Vernon's Ann. Civil Stat, 4477-5.
17. Act 769 (1971), Ala. Laws Reg. Sess.
18. 3 Tenn. Code Ann. §§ 53-3412 to 53-3414(1).
19. 3 Tenn. Code Ann. §3415(D)(C).
20. Clean Environment Act, Proposition 9, Cal. Initiative, voted on June 6.
21. Id., §8.
22. 42 U.S.C.A. § 1857f-6a.
23. Cal. Health and Safety Code §39177.1 (a) (West 1971).
24. Ch. 15, N.J. Air Pollution Control Code (1972).
25. S.C.R. 261 (1971) Reg. Sess. of La. Legis.
26. Ore. Rev. Stat. § 449.953 (1971).
27. Wash. Rev. Code § 90.54.
28. Ch. 347, Idaho Laws of 1972.
29. Ga. Code Ann. § 17-5, as amended, Act 1484, S.B. 493 and Act 1485,
S.B. 494 of 1972 Sess. of Ga. Gen. Assembly, and Ga. Code Ann. § 88-26
(Supp. 1966).
30. Act 1483, H.B. 491 of 1972 Sess. of Ga. Gen. Assembly.
31. Tenn. Code Ann. § 70-324 to 70-342.
32. 111. Rev. Stat. ch. 111.5, § 1003.
33. N.J. Pamphlet Law 1971, c. 173.
34. Alaska Stat. §46.03.760(a).
35. Fla. Stat., ch. 376 (1970), §§9 of §376.031 as amended, ch. 71-243
and §§ 1 and 2 as amended, ch. 71-136.
36. American Waterways Operators v. Askew, 335 F. Supp. 1241 3 ERG
1429 (M.D. Fla., 1971) probable jurisdiction noted, 40 U.S.L.W. 3504
(1972).
37. Me. Rev. Stat. Ann. tit. 38, ch. 3, subch. Il-a, § 541-557, as amended,
ch. 618 (1971) Spec. Sess. except § 543, 552 and 553.
38. Me. Rev. Stat. Ann. tit. 38, ch. 3, § 413 as amended, ch. 618, § 12
(1971) Spec. Sess.
39. Wash. Rev. Code § 90.52.
40. N.J. Pamphlet Law 1972, ch. 42.
41. S.B. 118, 1971 Nev. Legis. repealed and incorporated into A.B. 811,
197 INev. Legis.
42. Act 1260 (1971) Ala. Laws, Reg. Sess.
43. 10V.S.A. §912a(c)(3)(A).
44. 10V.S.A. §9l2a(f).
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GUIDELINES AND REPORTS 3113
45. Ch. 17 (1971), Minn. Laws, Extra Sess. and ch. 861 (1971), Minn.
Laws, Reg. Sess.
46. Ind. Code §6-6-1.5-1 to 1.5-4 (1971).
47. Ch. 184 (1971),N.H. Laws.
48. Minn. Reg. SW 51-55.
49. Ind. Code § 13-1-5.7-1 to 5.7-7 (1971).
50. S.D. Comm. on Water Pollution, regulation of Livestock Enterprises for
Water Quality control (1971).
51. Ohio Rev. Code § 6121.041-.043.
52. Ohio Rev. Code § 1531.29.
53. N.H. Rev. Stat. Ann. § 149-G.
54. 18 CFR 601.32-3.
55. M. Garner, Approaches to Urban and Rural Erosion and Sediment
Control—Administrative and Legislative Actions to Extend State Pro-
grams (U.S. Department of Agriculture unpublished paper), p. 1,
May 1972.
56. Ala., Ark., Colo., Fla., Ga., 111., Ky., La., Md., Miss., Mont., Neb., Nev.,
N.J., N.C., N.D., Oreg., S.C., S.D., Tenn., Tex., Utah, Vt, Va., W. Va.,
Wis., Wyo.
57. Id. p. 2.
58. Ch. 227 (1971), Acts of 64th Gen. Assembly of Iowa, 1st Sess.
59. Amended S.B. 305, 109th Ohio Gen. Assembly, 1971-72.
60. 12. V.I. Code §531-58.
61. Md. Ann. Code art. 25, §§ 163a, 167B(A) ; art. 66c, §§ 411AB, 41 IAD,
756-756A, 757A-B, art. 96A, §§ 105-110.
62. Ch. 664, N.Y Laws of 1972.
63. § 25-54 to 25-54qq (1971 Supp.), Conn. Gen. Stat.
64. Me. Rev. Stat. Ann., tit. 39, ch. 3, §419 (1971).
65. Mich. Comp. Laws § 323.231-323.236.
66. Ch. 72-53, adding § 403.061 to ch. 71-35 of Fla. Stat.
67. Ind. Code § 13-1-5.5-2 and 3 (1971).
68. H.B. 1336, 1971 Ore. Legis.
69. H.R. 48, 1971 Ark. Legis. Sess.
70. H. Jt. Res. 33, 1971 Mont. Legis. Assembly.
71. Ch. 245, R.I. Gen. Laws of 1971.
72. N.J. Pamphlet Law 1971, ch. 177.
73. New Jersey Department of Environmental Protection, Plain Facts about
New Jersey's Environment—Ocean Dumping (1971).
74. Ore. Rev. Stat. § 459.120-.160 (1971).
75. Mich. Comp. Laws § 325.291-325.300.
76. Nev. Rev. Stat. § 444.440-444.620.
77. Ch. 745 (1971) Ore. Laws.
78. 10V.S.A. § 1171-1175.
79. N.J. Pamphlet Law 1971, ch. 418.
80. 23 N.D. Cent. Code § 23-01-17.
81. 111. Rev. Stat. ch. 111.5, § 1025.
82. Colo. Rev. Stat. § 66-35 (Supp. 1971).
83. Ch. 62, Mass. Acts of 1971.
84. P.A. 74 (1968) as amended, P.A. 178 (1971) and Mich. Comp. Laws
§257.1504caddedbyP.A. 57 (1972).
85. 13 V.S.A. § 3738-3740.
86. Northern States Power Co. v. Minnesota.
87. Mont. Rev. Code Ann. § 27-213 to 27.245.
88. N.H. Rev. Stat. Ann. § 149-D:7 andD:9.
89. Mich. Comp. Laws § 286.151-286.173.
90. N.J. Pamphlet Law 1971, ch. 176.
91. Ch. 832 (1971), Sess. Laws of N.C.
92. Gal. Agric. Code § 12991.
93. Act 1303, H.B. 571 of 1972 Sess. of Ga. Gen. Assembly.
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3114 LEGAL COMPILATION—GENERAL
94. Del. Code Ann. tit. 3, ch. 12-2 as amended H.B. 350, Reg. Sess. (1972).
95. Act 1957, § 5 of H.B. 1851 of 1971 Ala. Legis., Reg. Sess., as amended,
Act 79, H.B. 119 of 1971 Ala. Legis., 3d Spec Sess.
96. Ind. Code § 15-3-3.5-1 to 3.5-36 (1971).
97. Ch. 308, Gen. and Spec. Laws of Tex., Acts of 62d Legis., Reg. Sess.
1971, amending Yemen's Ann. Civil Stat. 135b-5.
98. Utah Code Ann. (1953) Rept. Vol. IB, 4-4-30.
99. Conn. Agency Reg. § 19-300-P-17 to 19-300-P-19.
100. Neb. Rev. Stat. §81-1501 to 1532 (1971) as amended, L.B. 1435,
82d Legis., 2d Sess. at p. 1229 (1972) Laws of Nebraska.
101. Ch. 277, N.M. Laws of 1971.
102. Conn. Gen. Stat. Ann. § 22a-l—§ 22a-ll (1971 Supp.) as amended,
Spec. Act 53, § 15 (1972).
103. Act 38, § 8 (1971) Ark. Legis. Sess.
104. Alaska Stat. §46.03.020.
105. S.C.R. 262 (1971) La. Legis., Reg. Sess.
106. Mont. Rev. Code Ann. § 69-6501—69-6517.
107. Wash. Rev. Code § 43.21C.
108. Del. Code Ann., tit. 7, ch. 70.
109. N.M. Stat. Ann. § 12-20-1—12-20-7 (1971).
110. Ch. 1203 (1971), Sess. Laws of N.C.
111. Ch. 274, Wis. Laws of 1971.
112. Ind. Code § 13-1-10-1 to 8.
113. Cal. Pub. Res. Code § 21100-21104.
114. L. 5, § 42, P.R. Sess. Laws of 1971.
115. Ariz. Game and Fish Commission, Procedures for Implementation of
Water Conservation and Water Recreation Development, adopted
May 27, 1971.
116. Substitute H.B. 928, §4, 109th Ohio Gen. Assembly 1971-72.
117. F. Bosselman and D. Callies, The Quiet Revolution in Land Use Con-
trol (1971), available from the U.S. Government Printing Office.
118. R. Richard & W. Wagner, "The State's Role in Land Resource Manage-
ment" (The Council of State Governments, Lexington, Ky., Feb., 1972).
119. Id. p. 1.
120. Ch. 72-317, Fla. Sess. Laws of 1972.
121. S. 992, H.R. 4332, 92nd Cong., 1st Sess. (1971).
122. Ch. 690 (1972), Va. Acts of Assembly.
123. N.C. Gen. Stat. § 143-476.
124. Me. Rev. Stat. Ann., tit. 38, § 481-488 as amended, ch. 618, 613, 622
(1971) Spec. Sess.
125. Cal. Bus. & Prof. Code § 11549.5 (West 1971).
126. OAR, ch. 339 (1972).
127. III. Pollution Control Bd., Rules & Reg., ch. 3., Water Pollution, dtd.
March 3, 1972.
128. Wash. Rev. Code § 90.58.
129. Ore. Rev. Stat. § 191.110-.180 (1971).
130. Ch. 175, Vol. 58, Laws of Del.
131. N.J. Dep't of Environmental Protection, Reg. adopted April 13, 1972
under N.J.S.A. 13:9A-1 et seq.
132. Ch. 711 (1972),Va. Acts of Assembly.
133. Conn. Gen. Stat. Ann. § 16-50g-§ 16-50w (1971 Supp.) § 16-SOj as
amended, P.A. 228 (1972); § 16-50q as amended, P.A. 108, § 3 (1972).
134. Md. Code Ann. art. 66(c) § 763-768 (1957; Supp. 1971).
135. Chapter 385, N.Y. Laws of 1972.
136. Ore. Rev. Stat. § 453.305-.575 (1971).
137. Wash. Rev. Code § 90.58.
138. Me. Rev. Stat. Ann. tit. 38 §481-488 as amended ch. 618, 613, 622
(1971) Spec. Sess.
139. 30 V.S.A. § 246.
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GUIDELINES AND REPORTS 3115
140. S.C.R. 8 Gen. and Spec. Laws of Tex., 62d Legis., Reg. Sess. 1971,
p. 3834.
141. Gal. Pub. Util. Comm. Order dtd. June 3, 1970.
142. Ariz. Rev. Stat. Ann. §40-2-6.2—40-360—40-360.2 with §4360
and 4360.1 as amended, ch. 87, Ariz. Laws of 1972.
143. Letter from Governors of Idaho, Oregon and Washington, June 15, 1971,
to Chairman, Federal Power Commission.
144. S.D. Compiled Laws Ann. § 45-6A (1971).
145. Ch. 545 (1971), Sess. Laws of N.C.
146. Mont. Rev. Codes Ann. §50-1018—50-1033 and § 50-1201—50-1224
(1971).
147. Ch. 785 (1972),Va. Acts of Assembly.
148. Mo. Rev. Stat. §444. with § 444.500—444.755 added by S.B. 1, 76th
Gen. Assembly, 1st Reg. Sess. and § 444.760—444.786 added by H.B.
519, 76th Gen. Assembly, 1st Reg. Sess.
149. Me. Rev. Stat. Ann. tit. 12, ch. 206(a), § 682 (27).
150. 111. Rev. Stat. ch. 93, § 201-216.
151. W. Va. Code Ann. § 20-6.
152. The Arkansas Open Cut Land Reclamation Act of 1971; Act 236 (1971)
Ark. Legis. Sess.
153. Amended substitute H.B. 928, 109th Ohio Gen. Assembly, 1971-72,
amending Ohio Rev. Code § 1531.
154. National Recreation and Park Association, State Park Statistics (August
1971) p. 9.
155. U.S. Dep't of Interior, Bureau of Outdoor Recreation, The Land and
Water Conservation Fund, January 1965-January 1971.
156. N.Y. Exec. L. § 800-810 (McKinney 1971).
157. A.C.R. 45 (1971), Nev. Legis. Sess.
158. Ch. 840, Mass. Acts of 1971.
159. Me. Rev. Stat. Ann. tit. 12, ch. 206(a), § 681-689; § 683 and § 684 as
amended, ch. 619 (1972), Spec. Sess.; § 685(A) as amended, ch. 593
and ch. 619 (1972), Spec. Sess.; § 685(B) as amended, ch. 618 and ch.
619 (1972) Spec. Sess.; §686, 687, 688 repealed by ch. 457 (1971)
Gen. Sess., and §689 repealed and replaced by ch. 457 (1971) Gen.
Sess.
160. Mich. Exec. Order, 1971-5.
161. Mich. Comp. Laws § 281.761-281.776.
162. Ore. Rev. Stat. § 308.740-308-790 (1971).
163. Conn. Gen. Stat. Ann. §§ 7-131a-D (1969 Supp.) Conn. Gen. Stat.
Ann. §§ 12-53-A, § 12-63, §12-76, § 12-78, § 12-107a to 12-107c, and
§ 12-109 (1971 Supp.) P.A. 152 (1972) Conn. Gen. Assembly.
164. Cal. Fish & Game Code § 2050-55 (West 1971).
165. Md. Code Ann. art 66(c) § 125 (1957 Supp. 1971).
166. S.B. 172, Gen. and Spec. Laws of Tex., 62d Legis., Reg. Sess. (1971).
167. Nev. Rev. Stat. § 611 (1971).
168. See Council on Environmental Quality, Environmental Quality Sec-
ond Annual Report, 1 p. 56 (1971).
169. Mich. Comp. Laws § 69.1201-69.1207.
170. Ch. 952 (1971), Minn. Laws, Reg. Sess.
171. Mass. Gen. Laws Ann. ch. 732 (1971) as amended, ch. 219, Mass. Acts
of 1972.
172. P.A. 96 (1971) Conn. Gen. Assembly added to Conn. Gen. Stat. Ann.
§ 22a-14 thru § 22a-20 (1971 Supp).
173. P.L. 182, Ind. Acts of 1971, added to Ind. Code §§ 13-6-1-1 to 6.
174. Cal. Code Civ. Pro. §389.6 and §641.2 Cal. Gov't Code §12600-
12612.
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GUIDELINES AND REPORTS
3117
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3118
LEGAL COMPILATION—GENERAL
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GUIDELINES AND REPORTS 3121
local governments —
efforts to
control noise
Long before the problems of pollution rose to their present propor-
tions of State- and nation-wide significance, local units of govern-
ment were grappling with smoke emissions, polluted rivers, rising
levels of noise, and mounting volumes of solid wastes.
Two basic factors provide a natural role for the local level of
government in controlling pollution. First, like the States, local
governments traditionally have had more extensive legal authority to
confront environmental problems than the Federal Government.
State and local authorities can enact legislation based on their broad
constitutional police power to protect the public health, safety, and
welfare. In addition, armed with common law powers, localities his-
torically have acted to control public nuisances. Second, local juris-
dictions are closest geographically and jurisdictionally to many of the
environmental problems jeopardizing the health and welfare of their
citizens.
The vast expansion of our urban areas and the increasingly re-
gional character of many environmental problems are focusing new
attention on action at the regional, State, and Federal levels of gov-
ernment. But a better understanding of past and present local efforts
to meet these problems will help put the responsibilities and functions
of all levels of government in perspective.
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3122 LEGAL COMPILATION—GENERAL
Unfortunately, the history of local environmental regulation does
not lend itself to broad or easy description or analysis. This Annual
Report takes a first step toward understanding the local role in attack-
ing environmental problems. It examines in some detail past and
present local activity in dealing with one significant problem—noise
pollution. Noise regulation is a good example of a struggle against
pollution that traditionally has been waged locally but is now increas-
ingly attracting the attention of State and Federal governments. Con-
siderable information about noise is now available because of a recent
study by the Environmental Protection Agency a and a broader study
on local activities commissioned by the Council on Environmental
Quality.2
Although this chapter centers on local efforts to regulate noise,
it discloses issues common to local environmental regulation on other
fronts as well. The issue of preemption by State or Federal laws, for
one, is well illustrated in the case of noise pollution, for which pending
Federal legislation and new State programs eclipse local efforts to
some extent. Indeed, as more State and Federal programs and more
uniform approaches to particular pollution issues emerge, the local
role may come under significant reexamination.
Before describing the local war against noise pollution, this chapter
will first summarize briefly the traditional and emerging local role in
several other major areas of environmental concern. This summary
is intended to put the changing interface among local, State, and
Federal actions into perspective.
air pollution
Early efforts to combat air pollution represented local response to
citizen clamor over what today is recognized as only one aspect of air
pollution—smoke emissions from fossil fuels, primarily coal. Chicago
and Cincinnati led the way with smoke control laws in 1881. By
1912, 23 of the 28 cities with populations over 200,000 had similar
laws.3 Although specific State enabling legislation sometimes was
needed 4 and a few States involved themselves directly in control
programs,5 regulation for the most part remained a local concern until
the mid-fifties. Even on the local level, however, air pollution control
up to the middle of this century continued to be primarily a matter
of controlling smoke through local ordinances.
The Federal Government entered the field after California discov-
ered in the early fifties that automobiles were the chief source of Los
Angeles smog. Smog itself was not recognized as a serious air pollu-
tion problem until the late 1940's. It took years of research to pin-
point the source of photochemical smog and to demonstrate that the
problem was not unique to Los Angeles. The resulting new emphasis
on gaseous pollutants, coupled with the realization that the problem
should no longer be thought of as essentially local in character,6
moved pollution control efforts away from local smoke ordinances.
Soon all three levels of government were engaged in a variety
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GUIDELINES AND REPORTS 3123
of broad programs. The Federal Clean Air Act, originally passed in
1963,7 was broadened in 1965,8 1967,9 and particularly in 197010 to
shore up State and Federal control over air pollution.
The impact of this broadening movement on local responsibilities
has been twofold. First, the new Federal mandate under the Clean
Air Act to set air quality standards and the accompanying State
assignment to implement them have significantly eclipsed local re-
sponsibility to determine permissible pollutant levels. But while
much of the control over air quality standards has moved
to governmental levels above the local, the responsibility for
actual enforcement of the standards and for translating them
into emission limitations and compliance schedules is still largely
delegated to the local level in many States. Thus, the role played by
many local jurisdictions is still a crucial one.
The success of local efforts to control air pollution is mixed, but
there is a trend toward improvement. Two early studies in 1963
indicate that local programs, where they existed, were understaffed
and lacked the money to properly meet their needs.11 More recently,
some local governments have made notable efforts to improve the
quality of enforcement. For example, New York City's Environmental
Control Board in the first 6 months of its existence in 1971 handed
down twice as many fines for air pollution as the City's criminal courts
levied in all of 1970 under the old enforcement system.12 And,
although still facing a serious problem of auto-made smog, Los
Angeles County has implemented stringent controls over stationary
source emissions. Philadelphia's air pollution control program is
another example of significant progress in the last decade. With
further improvement in local enforcement programs, there is
every reason to believe that local governments will continue to
play an important role in meeting the Nation's air quality improve-
ment goals.
water pollution
Water pollution control also started as a simple response by local
jurisdictions to only a part of what has since become a complex and
difficult environmental problem. Environmental controls over water
quality were originally designed to protect surface and underground
sources of drinking water from contamination by human waste dis-
posal. With the rise of urban centers and sewer systems, the focus has
broadened to protecting rivers, lakes, estuaries, and the oceans them-
selves. By the turn of the century, health codes—forerunners of
modern water quality laws—began to reflect these concerns.13 Today,
water pollution control efforts are aimed as well at enhancing
aesthetics and recreation and at protecting fish and wildlife.
Again, cities historically were the first to react to both problems.
Unlike the case of air pollution, however, the States soon played the
dominant legal role in water pollution control, as they now have for
many decades, largely because water pollution has major downstream
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3124 LEGAL COMPILATION—GENERAL
impacts well beyond the local jurisdictions where it originates. By
the time of Federal entry on the scene in 1948,u most States had
some form of water pollution control program underway. Local
jurisdictions, however, have continued to bear a preponderance of
the financial load in trying to respond to increasingly strict State and
Federal requirements applicable to their sewage treatment systems.
The local government contribution to the fight against water
pollution has been chiefly in constructing and operating municipal
waste treatment systems. In the face of spiraling demands for a
wide variety of municipal services, local efforts to construct such
waste treatment systems have been uneven and sometimes prodded
only by threats of enforcement. Nevertheless, between 1957 and
1970, local governments, with Federal and State aid, have invested
$6.4 billion in treatment plants.15 Considerably more funds have
gone into operating costs. Some localities have made impressive
gains, often by establishing regional waste treatment authorities.
Seattle, for example, with a metropolitan-wide system, restored
eutrophic Lake Washington to recreational quality. San Diego re-
stored the quality of its Bay through a regional system. And the
Metropolitan Sanitary District of Chicago is innovating in advanced
abatement techniques, including an underground tunnel to cope with
combined sewer overflow wastes. With rising citizen concern over
the quality of the environment and stepped-up Federal and State
assistance and enforcement, local government spending to control
water pollution will grow.
solid waste
Solid waste, unlike air and water pollution, remains substantially
a problem of local control and concern. Federal initiatives in this
area, primarily the Solid Waste Disposal Act of 1965,16 as amended
by the Resource Recovery Act of 1970,17 are essentially limited to
demonstration and planning grants, technical aid, and information
guidelines. Most States, spurred in part by Federal assistance, have
developed comprehensive solid waste plans. Thirty States now
have solid waste control laws and 26 require permits.18 In many
of these States, however, local governments handle the actual pro-
gram development and implementation, with the States lending
various forms of assistance. Thus, the actual task of collecting and
disposing of municipal wastes remains a problem, squarely faced for
the most part only by local governments.
Attempts to cope with mounting volumes of waste have trig-
gered an intensive search for new collection and disposal techniques,
as well as new ways to regulate and cut down potential waste. The
problem is compounded by rising costs of land, as well as by pollution
problems linked to traditional "open dumping." Sanitary landfills
avoid the latter problem, but they are more expensive than dumps,
and land is hard to find in highly populated urban areas. Incinera-
tion, used in the disposal of only 8 percent of municipal solid waste,
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GUIDELINES AND REPORTS 3125
causes air pollution problems without proper controls, illustrating the
interrelationships of environmental problems.
As efforts to meet these problems intensify, two significant trends
in local waste management are emerging. First, the job of waste
collection increasingly is being handed over to the private sector.
Municipal franchises designed to make trash collection a profitable
private venture are becoming common, reducing the financial bur-
den on local governments. Second, as nearby sites for land disposal
of waste' become scarcer, localities are beginning to look to poten-
tial sites in other political jurisdictions. This often raises difficult
social and legal problems that cause costly delays. These problems
lend increasing impetus toward development of regional and multi-
jurisdictional programs for waste management. Thus, the move to
more widely based programs in solid waste management may soon
begin to parallel some of the strategies now common to air and
water pollution control.
Localities are also looking more and more at ways to reduce the
amount of solids that actually end up as wastes. Container laws,
tax and deposit requirements, and recycling programs all aim at
curbing the volume of waste ultimately requiring disposal.
Recycling offers a number of significant environmental advantages
over traditional disposal techniques. However, there are indica-
tions that the economics of recycling is not now favorable as
contrasted with the disposal alternatives. As a consequence, local
recycling efforts have been limited and sporadic, and large-scale
recycling systems have not gained widespread acceptance.
As the preceding discussion indicates, one result of the increased
concern in recent years for maintaining and enhancing the quality
of the environment has been to place new emphasis on Federal and
State programs. These levels of government are often better able to
deal with problems of pollution affecting areas beyond the control of
any single locality. At the same time, however, local jurisdictions
continue to play a major role in many antipollution activities, ranging
from enforcement of air quality standards to maintenance of ade-
quate sewage treatment facilities and solid waste control programs.
It is also clear that local jurisdictions will continue to face many new
challenges in meshing traditional responsibilities with wider Federal
and State roles. These challenges will test the ability of local gov-
ernments as well as our Federal system to respond to new demands
and changing areas of concern. But there is every reason to believe
that the basic adaptability of our institutions and the closeness of local
governments to immediate environmental problems will cause local
jurisdictions to continue to play £ major and positive role. The
remainder of this chapter illustrates 'in greater depth the nature of
this role in one particular area—that of controlling noise pollution.
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3126 LEGAL COMPILATION—GENERAL
noise
The impact of noise falls most heavily on the average city dweller.
The typical urban resident is exposed to noise of varying intensity
and duration through much of his working day, weekends, and
nights. He may begin his day awakening to the clamor of morning
traffic. At work, construction and traffic noise may buffet him
from the outside while typewriters and other office machinery clatter
from within. If he works in a factory or at a construction site or
drives a truck, noise levels may be extremely high. Even at home,
the typical urban resident may be exposed to many of these sources
and to others, including household appliances, air condition-
ers, lawn mowers, power tools, and neighbors. Noise from some of
these sources may recur or continue throughout the night. Even
leisure time away from the urban hubbub may be filled with noise
from campers, powerboats, dune buggies, or snowmobiles. It is in-
creasingly difficult for any individual—in urban or rural America—
to escape noise.
For many city residents, noise may be the single most pervasive
environmental pollutant. In some instances, of course, noise serves
a useful purpose (e.g., from an alarm clock or an emergency vehicle),
but only to those whom it is intended to serve. In most instances,
however, noise is a useless and sometimes harmful byproduct which
municipal governments, since the days of Caesar's Rome, have tried
to abate.
history of municipal action
Until recent years, local jurisdictions have exercised almost exclu-
sive responsibility for noise control. Characteristic of an early attempt
by a city government to control noise was a 1929 ordinance in Pon-
tiac, Mich. It defined as a nuisance the operation "of noisemaking,
noise amplifying or noise producing instruments or devices by which
the people or good order of the neighborhood is disturbed." 1!>
The first systematic and detailed study of urban noise was made
in 1930 by New York City's Noise Abatement Commission, ap-
pointed by the City's Commissioner of Health. Entitled "City Noise,"
the study was based on a survey of the impact of noise on thousands
of New Yorkers. It measured noise levels in different parts of the
City, investigated their effect on human beings, and analyzed the char-
acteristics of a number of separate noise sources and means of reducing
their impact.20 The report, which was widely read and accepted,
concluded that "noise as it prevails in our city today is definitely
detrimental to the well-being and efficiency of those who live and
work here."
The report led to steps to curb noise in New York City.
Noiseless turnstiles were introduced in the subways and rubber-
tired handcarts in the garment district. An existing ordinance
was invoked against unnecessary steamboat whistles. New ordinances
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GUIDELINES AND REPORTS 3127
were adopted to control radio loudspeakers and automobile horns.
Mufflers or silencers were required on engines.
In the years following the Noise Abatement Commission's report,
many cities throughout the United States adopted ordinances regulat-
ing noise. In 1937, Miami Beach, Fla., banned sources of noise found
to be excessive or to disturb the peace and quiet of the neighbor-
hood; 21 Madison, Wis., had adopted a similar ordinance in 1935; 22
Richmond, Va.,23 and Memphis, Tenn.,24 both followed suit in 1938.
In 1948, the U.S. Supreme Court dealt a blow to noise control
efforts when it declared a Lockport, N.Y., ordinance unconstitu-
tional. The ordinance outlawed the use of a sound truck without a
permit from the Chief of Police. The Court found that because no
standards were prescribed for the exercise of the Chief's discretion,
the ordinance restrained the right of free speech in violation of the
First Amendment.25
In the wake of this decision, new ordinances were enacted setting
permit standards, as in Buffalo, N.Y.26 New Rochelle, N.Y., regulated
sound trucks themselves—their hours of operation, effective dis-
tances, acoustic power, and the like.27 Also in 1948, the National
Institute of Municipal Law Officers (NIMLO) issued a report that
became a guide for unnecessary noise ordinances and control of sound
trucks.28
By the 1960's, some municipalities were adopting ordinances which
set numerical limits on the amount of noise permitted from various
sources. A model ordinance of this type was proposed and published
by NIMLO in 1970.29 It provided for the adoption of quantitative
standards to limit noise.
types of municipal regulations
Most municipal noise control ordinances fall into one of two cate-
gories. The first is a subjective type of ordinance that prohibits noise
deemed excessively or unreasonably loud. The second and more recent
type of ordinance prohibits noise that exceeds a specific numerical
level, usually stated in decibels (dBA).30 (Noise measurement and
effects are discussed in footnote 30.) These two types of ordinances
represent, basically, the differences between a qualitative and quanti-
tative approach to noise abatement. Some cities, such as New York
City, have adopted features of both approaches.
The more general, qualitative noise ordinance has been adopted
in the majority of local jurisdictions, among them Washington, D.C.,
Boston, Mass., and Memphis, Tenn.31 Of 51 municipal government
codes recently examined by NIMLO, 32 had this type of ordinance.
A study recently conducted for the Environmental Protection Agency,
covering some of the same jurisdictions, reported that 46 of 83 fit
this category.32
In the past, legal attacks on such ordinances have alleged that
they are unconstitutionally vague and violate the due process
guarantees in Federal or State constitutions. Such attacks generally
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3128 LEGAL COMPILATION—GENERAL
have not succeeded, however, because the courts have held that the
words of the ordinance in question are to be given an ordinary and
common sense meaning in their interpretation.
Quantitative ordinances are a comparatively recent development,
setting a definite numerical standard to separate illegal and legal
noise. A number of municipal governments have recently enacted such
ordinances, among them Chicago and Urbana, 111. (1971), Minne-
apolis, Minn. (1971), and the California cities of El Segundo (1971),
Torrance (1971), Alhambra (1971), Inglewood (1970), and Beverly
Hills (1970).33
Chicago has probably the most comprehensive noise control ordi-
nance in the Nation.34 The scope of its new ordinance is indicated by
the noise sources covered, which include hand organs, steam whistles,
noise from buildings and building operations. Other regulations cover
noise from bells and sirens on bicycles, horns and mufflers, boat
whistles, and locomotive signals. Power driven vehicles and equip-
ment covered by the new ordinance include automobiles, trucks,
motorcycles, powerboats, lawnmowers, dune buggies, go-carts, and
snowmobiles.
The Noise Control Code proposed in 1971 by New York City
would combine features of both the qualitative and numerical ap-
proaches to noise control. The Code, which is currently scheduled for
adoption by the City Council in the summer of 1972, will retain and
codify all of New York's existing "unnecessary noise" statutes, em-
bracing court precedents already established. The proposed Code will
set specific numerical limits on the use of such sound sources as motor
vehicles, air compressors, jackhammers, and garbage trucks. Further-
more, the proposed New York City Code will establish within 2 years
of adoption ambient noise standards (ambient noise is the total of all
noise normally present at a given time and location) for various zones
of the city depending on the land uses of reach zone.35 All violations
under the proposed code will be handled by a special administrative
tribunal rather than the criminal courts.
enforcement
Noise ordinances have typically been difficult to enforce. The
subjective type of ordinance has been enforced most frequently only
following citizen complaints. In the absence of citizen complaints,
local law enforcement officials often are unaware or unmindful of
noise regulation ordinances.36 Even when complaints have been
made, one or more "warnings" are usually issued to a violator first.
Quantitative ordinances usually fare little better, although for
somewhat different reasons. Their enforcement requires specialized
equipment and trained personnel. Technical problems arise in
separating sounds from potential violators and background noise.
Measuring frequency, distance, and duration of sound is likewise
difficult.37 These technical difficulties can act as a disincentive to ef-
fective enforcement. For example, where numerical ordinances are
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GUIDELINES AND REPORTS 3129
enforced by municipal police, the complexity of the measuring equip-
ment coupled with its infrequent use often make the individual
patrolman wary of his ability to employ the equipment competently.88
Some municipalities provide training for local officials respon-
sible for enforcing noise standards. The proposed Noise Control
Act now pending before the Congress would authorize the Environ-
mental Protection Agency to provide technical assistance to State
and local governments (see Chapter 4 of this report on Federal
activities for a discussion of this proposed law). This will include
advice on ambient noise standards, training of personnel, and tech-
niques for noise measurement and control.
Another significant defect in enforcement of either type of ordi-
nance is the absence, in many instances, of aggressive noise control pro-
grams. Personnel and funding generally are quite limited at the local
level no matter how good the ordinance.39 (See Table 1 for levels of
funding by selected local governments.) Moreover, communities
face a dilemma when part of their noise control efforts are aimed
either directly or indirectly at the regulation of industrial noise
sources. Such sources usually constitute a relatively minor portion of
the overall local noise level, but they may account for a significant
segment of the tax base.
One problem in the past has been a common public acceptance of
noise as an inevitable concomitant of urban life. Only recently has
there been a broadening public recognition that much of the noise
we have tolerated is unnecessary.
Where municipalities have vigorously enforced noise abatement
ordinances, results have been noticeable. Memphis, Tenn., for ex-
ample, which has the reputation of being a quiet city, has enforced
its broad ordinance prohibiting unnecessary noise, giving particular
attention to unnecessary horn blowing.40
organization
Municipalities generally have turned to one of two administrative
arrangements to curb noise.41 Some jurisdictions, such as Chicago and
New York City, respectively, have adopted or proposed a compre-
hensive noise ordinance and invested a local environmental protec-
tion agency with the powers to administer and enforce it. Such an
approach centers the responsibility for both promulgating and enforc-
ing regulations in one agency to provide a more efficient and stream-
lined program. Noise control experts generally favor separating the
specialized enforcement of noise abatement from the usual duties of
the police force.4'
Most municipalities, however, incorporate noise controls into
existing regulations, then split enforcement among various munic-
ipal agencies. Those elements of noise control affected by land use
planning, for example, would fall to the local zoning authority. Re-
sponsibility for transportation noise control would go to traffic au-
thorities. Decentralization allows a city to tap a range of expertise
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3130
LEGAL COMPILATION—GENERAL
and to spread the added cost and manpower burden among a num-
ber of agencies. But it often frustrates any comprehensive approach
to the problems of noise control because of the difficulty of inter-
agency coordination. Moreover, few, if any, of the responsible agencies
view noise control as a principal—or even an important—mission.
federal and state activities
Although local governments historically have wielded authority
over noise control, there is a mounting awareness of the need to set
national standards on products sold in interstate commerce. The
pending Noise Control Act of 1972, passed by the U.S. House of
Representative in February 1972, would bar State and local govern-
ments from applying any but Federal noise standards to products
covered by Federal law.43 However, the bill would not stop State or
local governments from passing ordinances to control ambient noise
by regulating the use, operation, or movement of any vehicle or
equipment.
Under the proposed law, when the Federal Government, for
example, sets standards for new cars, State or local governments may
not then set different noise emission standards. Hence, automobiles
sold in interstate commerce would not have to meet a myriad of
different State and local laws. State and local governments could,
however, control noise from vehicles with ordinances restricting
vehicles in use, for instance, through ambient noise limits for specific
zones or during specific times. If the local ambient noise limit is more
stringent for a given speed and measurement distance than the Fed-
eral emission limit, the local ordinance may require the vehicle to
travel at a lower speed. Or it may bar vehicles from certain areas
or outlaw their use during the times to which the local limits apply.
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GUIDELINES AND REPORTS 3131
Except for the control of auto exhaust noise, there has been rela-
tively little State activity in noise regulation until recent years.
Florida44 and New Jersey,45 among others (see Chapter 5 of this
report), have adopted noise abatement legislation in the past few
years. The New Jersey law, enacted in 1971, permits municipal regu-
lation of noise at levels more stringent than State regulations, subject
to the approval of the State agency. The Florida legislature left
intact previously enacted local controls and allowed new local controls
at least as stringent as the State regulations.
In other cases, local governments are limited by State regulation
in their power to control noise. Hawaii, for example, adopted a noise
control law in 1970 that entirely forbids separate local noise
legislation.46
sources of noise regulated
Municipal noise control efforts focus principally on noise from the
following broad areas: airplanes and airports, vehicles, construction,
industrial and commercial activities, household appliances, and inter-
nal building noise.
aircraft and airport noise—Federal law grants extensive authority
to the Federal Aviation Administration to control the use of aircraft
and airspace and to regulate air traffic. Municipalities are therefore
able to exercise only limited control over aircraft noise, clearly one of
the most controversial of all noise sources. Attempts by local juris-
dictions to curb aircraft noise by regulating the operation of aircraft
have been struck down by the courts when the ordinance was found
to create an unconstitutional burden on interstate commerce. They
have met the same fate in the face of either an explicit or implied pre-
emption of local action by Federal legislation or when the local ordi-
nance clashes directly with a Federal regulation.47 Although yet to be
affirmed by court action, local ordinances regulating some aspects
of airport operations presumably would be permitted when they do
not imperil aircraft operation safety or unreasonably burden inter-
state commerce. For example, cities might order aircraft engine
maintenance activities relocated or shielded when they generate
noise levels at the airport boundary higher than those permitted by
State or local law. In any event, local governments may wield their
land planning and zoning powers to lay out industrial parks and
other nonresidential uses to serve as noise buffer zones around
airports.
Airport owners, on the other hand, can exercise direct control
over some aspects of airport noise.48 They can establish nondiscrimi-
natory restrictions on the permissible noise level of aircraft using the
airport. They can specify the location for engine runup procedures.
Such measures, which because of Federal law are normally beyond
what a municipality may legally do, can be employed by local gov-
ernments that are owners of airports.
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3132 LEGAL COMPILATION—GENERAL
Major airport sites are often selected by specially created authori-
ties with varying degrees of accountability to State and local govern-
ments and to the communities where the airport is to be located.
Where Federal funds are involved in the development or improve-
ment of an airport, Federal law offers some opportunity for affected
local governments to participate in decisionmaking. The National
Environmental Policy Act gives local government units an opening
to comment on Federal and federally supported projects that will
significantly affect the quality of the environment.49 The Airport and
Airway Development Act of 1970 also requires greater citizen and,
in some cases, local government participation in airport location and
expansion projects prior to Federal funding.50 At a minimum, public
hearings must be held to consider the "economic, social and environ-
mental effects of the airport location and its consistency with the goals
and objectives of such urban planning as has been carried out by the
community." When a proposed new airport does not serve a metro-
politan area, the Department of Transportation must consider the
views of affected communities around the site prior to granting
approval.51
Three-fifths of the 127 final environmental impact statements
on airport construction and development issued by Federal agencies
in the 12 months preceding June 1972 carried comments by a munic-
ipal government unit. Under the Airport and Airway Development
Act, however, communities have requested hearings in only 29 percent
of the cases where such hearings are possible.52
vehicle noise—Local governments probably regulate motor vehicles
more than any other noise source.53 The majority of local governments
have adopted noise ordinances of a general, descriptive nature. They
either require adequate muffler devices on motor vehicles or prohibit
unnecessary noise. Some localities have set quantitative noise emission
limits for various types of vehicles and others have combined both
approaches.
Perhaps the most common legal devices used to control vehicular
noise at both the State and local level are ordinances covering horn
blowing and mufflers. Of 83 municipal ordinances examined by an
EPA contract study, 51 restricted horn noise and 33 required muf-
flers.54 Decatur, 111., and Madison, Wis., for example, both have horn-
blowing ordinances. Philadelphia and Des Moines have muffler
requirements. Twelve municipalities have enacted ordinances to con-
trol all noise emitted by automobiles.55 Salt Lake City, for example,
prohibits unreasonable and unnecessary noise and forbids excessive
and unusual noise from vehicles in quiet zones.56 Beverly Hills, Calif.,
prohibits repair or testing of vehicles in residential areas if it annoys or
discomforts residents.67 Five cities in the EPA study, including Ann
Arbor, Mich., Pocatello, Idaho, and Cincinnati, Ohio, have enacted
vehicle noise laws which set quantitative limits on noise emissions.
Chicago and Minneapolis have adopted perhaps the most extensive
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GUIDELINES AND REPORTS 3133
vehicular noise control laws of major U.S. cities. They restrict even
the sale of automobiles which exceed specified noise emission limits.
The Chicago ordinance, discussed earlier, provides that no auto-
mobile may emit noise in excess of 76 dBA (measured at a distance of
50 feet) when traveling at speeds up to 35 m.p.h. nor more than 82
dBA at speeds over 35 m.p.h. The ordinance reduces these limits after
January 1, 1978, to 70 dBA and 79 dBA for vehicle speeds below and
above 35 m.p.h., respectively. In a separate provision aimed at new
vehicles, the Chicago law orders that vehicles manufactured after
January 1, 1973, cannot be sold in Chicago if they make noise in excess
of 84 dBA measured at 50 feet. This limit drops to 80 dBA and then
75 dBA for vehicles manufactured after January 1, 1975, and Janu-
ary 1, 1980, respectively. Noise emission limits for sale of construction
equipment and powered hand tools will be set at 80 dBA by 1980,
motorcycles at 75 dBA by 1"980, and lawn mowers at 65 dBA by 1978.
Some of the foregoing provisions would be preempted by Federal
noise emission standards under the noise control legislation pending in
the Congress.
Motorcycles are usually subject to the same statutes as automobiles.
Some cities, however, such as Missoula, Mont., Detroit, Chicago, and
Minneapolis, have adopted ordinances specifically to control motor-
cycle noise either by muffler regulations or by setting quantitative
limits on noise emission.58 For example, until January 1, 1978, Chi-
cago prohibits motorcycle noise in excess of 82 dBA at speeds up to
35 m.p.h., and 86 dBA at speeds over 35 m.p.h. (measured at 50
feet). After January 1, 1978, the limits drop to 78 dBA and 82 dBA
at speeds below and above 35 m.p.h., respectively. Furthermore, as
with other motor vehicles, Chicago prohibits the sale of motorcycles
that are noisier than specified limits, which become increasingly
stringent with later dates of manufacture.
construction noise—Both curfew and quantitative ordinances are
used to curb noise at construction sites, with the more traditional cur-
few ordinance found in the majority of local jurisdictions. Such an
ordinance typically prohibits construction or the use of certain equip-
ment—such as pneumatic drills and pile drivers—during specified
time periods.58 For example, Portland, Oreg.,60 prohibits noise-
producing construction activities from 6 p.m. to 7 a.m. Toledo, Ohio,61
bars such activities from 9 p.m. to 6 a.m. Such curfew ordinances,
however, usually allow exceptions for emergency situations,62 public
utilities work,63 construction in the public interest,64 or construction in
nonresidential districts 65 and in other instances when there is no harm
to public health or safety.66 Unless strictly construed, such exemptions
can of course overshadow the basic prohibition.
Numerical ordinances are a more recent phenomenon in the area
of construction noise abatement. The Minneapolis noise ordinance,
for example, prohibits operation of construction equipment that gen-
erates noise in excess of 100 dBA at the property line. This limit will
drop to 95 dBA in September 1973 and to 90 dBA in September
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3134 LEGAL COMPILATION—GENERAL
1975.67 The Chicago ordinance combines features of both a curfew
and a quantitative approach. It prohibits use of construction equip-
ment between 9:30 p.m. and 8 a.m. within 600 feet of a hospital or
residence and sets permissible noise levels for equipment that is sold,
based on the date of manufacture.68
Noise emission limits applicable to new construction equipment
alone (as well as vehicles and other noise sources) suffer from two
limitations. Because existing machinery is not regulated, lower noise
levels are achieved only as older equipment is phased out. Also,
where local ordinances rely only on controlling the noise output of
individual pieces of equipment, total noise from a construction site
could still reach unacceptable levels if too many machines operate
at once. New York City's pending noise code would minimize these
limitations by setting numerical ambient noise standards for different
areas.69 Likewise, Chicago has set numerical limits on the amount
of noise permitted in different regions of the city. This approach
may require the use of quieter equipment or require adequate shield-
ing of the site in order to comply with the ambient noise limits.
industrial and commercial noise—Many local jurisdictions use a
variation of the traditional "unnecessary noise" type of ordi-
nance to regulate commercial and industrial noise. The ordi-
nances generally prohibit blowing steamwhistles except at the
beginning and end of the working day and to signal emer-
gencies.70 They prohibit excessively loud machinery71 and regu-
late outdoor loudspeakers through detailed application and
licensing procedures.72 Community noise from businesses and indus-
trial machinery generally is defined as excessive only if it offends
people residing nearby.73 On the business site, noise levels are con-
trolled through Federal and State occupational health and safety
laws designed to protect employees, although these laws typically per-
mit use of hearing protection devices as an alternative to abating
the noise itself.
Some recent attempts by local governments to control industrial
and commercial noise sources have used both quantitative noise
limits and previously established land use zoning boundaries,74 with
maximum permissible noise levels established for each zone. Such
an ordinance may take into account the type and duration of noise,
the time of day, day of the week, and ambient noise levels. Chicago's
ordinance is of this type.75
residential noise—The growing public awareness of noise has trig-
gered a rapid expansion in the number of complaints filed with local
environmental protection agencies. Many of these complaints relate to
noise from such domestic sources as air conditioners, power lawn-
mowers, and television sets.76
Both the subjective and numerical noise ordinances enacted by
many local governments regulate power tools, air conditioners, and
other mechanical equipment used for noncommercial purposes.
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GUIDELINES AND REPORTS 3135
Memphis, Tenn., for example, prohibits playing radios, phonographs,
and other devices when they "annoy or disturb the quiet, comfort,
or repose of persons" in or near the vicinity.77 White Plains, N.Y.,
has a similar ordinance specifically prohibiting the use of fans, air
conditioners, lawnmowers and chain saws when they disrupt the
peace of the community.78
Quantitative ordinances may regulate the same types of noise
sources. They either rely upon ambient noise levels to serve as a
baseline or set absolute numerical limits. For example, Alhambra,
Calif., prohibits noise between the hours of 10 p.m. and 7 a.m. from
machinery, equipment, fans, and air conditioners which is more
than 5 dBA above the ambient noise level.79 Its ordinance also
covers radios, phonographs, and other sound reproduction equip-
ment. Because such ordinances are based on the ambient noise level,
this must be determined before a violation can be established. This
requirement can complicate enforcement of the law. Moreover, a slow
rise in ambient noise levels is possible.
Torrance, Calif., on the other hand, has set upper limits on the
amount of noise permitted. Certain residential areas, for example,
may not be exposed to steady noise levels in excess of 50 dBA between
the hours of 7 p.m. and 10 a.m. or in excess of 55 dBA at other times.80
None of the four model building codes sl used by many munici-
palities to regulate construction of multifamily structures specifi-
cally curbs noise that travels through walls to other apartments or
adjoining dwellings. If the codes help to reduce noise it is only inci-
dental to their main functions of assuring structural soundness and
minimizing fire hazards. One model code, however, has an optional
appendix recommending minimum sound transmission character-
istics.82 And some municipalities that have adopted one of the model
building codes have amended it to require soundproofing.83
Local ordinances regulating interior building noise are primarily
limited to new construction. New construction now will also be in-
fluenced by specific requirements recently set by the Department of
Housing and Urban Development (HUD) governing approval of
projects under all HUD programs, including those of the Federal
Housing Administration.84 These requirements are aimed at dis-
couraging certain types of construction (e.g., homes, hospitals,
dormitories) in noisy areas by withholding Federal support.
summary
Efforts by local governments to curb noise cover a wide spectrum.
Ordinances vary from traditional, general attempts to control un-
reasonable noise to more sophisticated quantitative limitations. The
comprehensiveness of such legislation ranges from control of only
traditional noise sources, such as sound trucks, to curbing some
aspects of jet aircraft noise.
Local government control over airport and aircraft noise is strongly
circumscribed by Federal law, but it is most effectively exercised
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3136 LEGAL COMPILATION—GENERAL
where the local government is owner of the airport. The control of
noise from vehicles is evolving from nonquantitative muffler and
horn-blowing regulations to the adoption of numerical limits on noise
emission. The use of curfew ordinances to regulate noise from con-
struction sites is being supplemented by laws controlling ambient
noise and noise emitted by construction equipment. Noise from
industrial and commercial operations is being controlled through a
mixture of "unnecessary noise" ordinances, land use controls, and
more recently, quantitative limitations. While abatement of noise
in homes and residential areas has focused largely on a variety of
specific noise sources, recent efforts aim to control noise through
setting ambient noise limits and discouraging the siting of new
residences in noisy areas.
Pending Federal legislation would elevate certain areas of noise
regulation to the national level. At the same time, the Federal tech-
nical assistance provided for in this legislation should help local
governments conduct more effective noise control programs in
consonance with the expanded Federal program.
footnotes
1. Environmental Protection Agency (EPA), Report to the President and
Congress on Noise, December 31, 1971, N.R.C. 500.1. See also the ex-
tensive discussion of local noise control regulations contained in EPA,
Laws and Regulatory Schemes for Noise Abatement, a contract study by
George Washington University, NTID 300.4, December 31, 1971.
2. Council on Environmental Quality, Local Government Control of Noise
Pollution, a contract study by the National Institute of Municipal Law
Officers (NIMLO),April4, 1972.
3. Council on Environmental Quality, Environmental Quality: First Annual
Report,?. 61 (1970).
4. Act of 1911, P.L. 667, § 1; Purdon's Pa. Stat. Ann., title 53, §9691
(1938) [enacted after two Pittsburgh ordinances were invalidated by State
courts (German, "Regulation of Smoke and Air Pollution in Pennsyl-
vania," 10 U. Pitt. L. Rev. 493, 495 (1949))]; see also Gal. Health &
Safety Code §§ 24198-24302.
5. E.g., New Jersey P.L. 1954, ch. 212, as amended, now N.J.S.A. 26: 2C-1
et seq.
6. Cf. J. C. Davies, III, The Politics of Pollution, p. 51 (1970).
7. Clean Air Act of 1963 (P.L. 88-206).
8. Motor Vehicle Air Pollution Control Act (P.L. 89-272).
9. Air Quality Act of 1967 (P.L. 90-148).
10. Clean Air Amendments of 1970 (P.L. 91-604).
11. See H. Ballman and T. Fitzmorris, Local Air Pollution Control Pro-
grams—A Survey and Analysis, p. 292; Special Subcommittee on Air and
Water Pollution, U.S. Senate, A Study of Pollution—Air, p. 402 (staff
study), Hearings before Special Subcommittee on Air and Water Pollu-
tion, U.S. Senate, 88th Cong., 1st Sess., Sept. 1963.
12. Air/Water Pollution Report, April 10, 1972, p. 147.
13. F. P. Grad, Environmental Law, § 2-44 (1971).
14. Water Pollution Control Act (P.L. 80-845).
15. Environmental Quality: First Annual Report, supra, note 3 at 46.
16. Solid Waste Disposal Act (P.L. 89-272).
17. Resource Recovery Act of 1970 (P.L. 91-512).
18. See the discussion of State actions in chapter 5 of this report.
19. Pontiac, Michigan, Ordinance No. 809 (June 4, 1929).
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GUIDELINES AND REPORTS 3137
20. Noise Abatement Commission, City Noise (Dept. of Health, City of
New York, 1930).
21. Miami Beach, Florida, Ordinance No. 497 (Oct. 6, 1937).
22. Madison, Wisconsin, Code § 24.09 (Aug. 10, 1935).
23. Richmond, Virginia, Ordinance (Jan. 14, 1938).
24. Memphis, Tennessee, Ordinance (May 24, 1938).
25. Saiav. New Yori, 334 U.S. 558 (1948).
26. Buffalo, New York, Code § 216 (Dec. 14, 1948).
27. New Rochelle, New York, Code § 224 (May 16, 1949).
28. C. Rhyne, Municipal Control of Noise—Sound Trucks—Sound Advertis-
ing Aircraft—Unnecessary Noises—Model Annotated Ordinances
(NIMLO Research Report No. 123, 1948).
29. S. Levin, A. Gordon, C. Hartelius, Law and the Municipal Ecology,
77-85 (NIMLO Research Report No. 156, 1970).
30. Decibels are a measure of the sound pressure level. When measured in
decibels on the "A" scale of a standard sound level meter—(a noise scale
which approximates the frequency response of the human ear and whose
units are abbreviated "dBA")—the response of the human ear ranges from
0 dBA, the threshold of hearing, to about 120 dBA which is at the thresh-
old of pain. Between these values, typical sound levels produced by
various sources are: 30 dBA, a soft whisper heard from 15 feet away;
55 dBA, light auto traffic heard from 50 feet away; 75 dBA, freeway
traffic heard from 50 feet away; 85 dBA, a pneumatic drill heard from 50
feet away; and 105 dBA, an auto horn heard from 3 feet away (see Note
3, supra, CEQ: Environmental Quality: First Annual Report). The
sound level of ordinary conversation is about 65 dBA, and extended ex-
posure to levels in excess of 80-85 dBA is generally considered to cause
permanent hearing loss. (Environmental Protection Agency: Effects of
Noise on People, a contract study by the Central Institute for the Deaf,
NTID 300.7, December 31, 1971.) The "loudness" of a sound approxi-
mately doubles with every 10 decibel increase, loudness being defined as
the apparent subjective magnitude of a sound as perceived by a human
listener.
31. Washington, D.C., traffic and motor vehicle ordinances, police regula-
tions, and zoning ordinances; Boston, Massachusetts, Revised City Ordi-
nances; Memphis, Tennessee § 24-5 (Sept. 12, 1967).
32. Report to the President and Congress on Noise, supra, note 1, at 4—14.
33. Chicago, 111., Code §17-4 (April 6, 1971); Urbana, 111., Ordinance
to Control Noise and Vibrations Within the City Limits of Urbana, 111.
(Nov. 15, 1971) ; Minneapolis, Minn., Code of Ordinances, ch. 246 (Eff.
Oct. 1, 1971); El Segundo, Calif., Code §9.04.030 (Dec. 27, 1971);
Torrance, Calif., Code § 46, (March 30, 1971) ; Alhambra, Calif., Code
§ 18.04 (May 15, 1971) ; Inglewood, Calif., Code § 4600 (Nov. 6, 1970) ;
Beverly Hills, Calif., Code § 4-8 (Eff. Feb. 4, 1971).
34. Laws and Regulatory Schemes for Noise Abatement, supra, note 1 at 1-
134.
35. New York City Environmental Protection Administration, A Guide to
the New York City Noise Control Code, pp. 6, 7.
36. C. Bragdon, The Community Noise Problem: Factors Affecting Its Man-
agement, 10 Nat. Res. J. 687, 701 (Oct. 1970).
37. For a general discussion of the enforcement problems related to quanti-
tative ordinances see Law and the Municipal Ecology, supra, note 29 at
75-76. See also T. O'Connor, City Attorney of San Francisco, City
Attorney's Opinion No. 71-45, June 10, 1971.
38. C. Bragdon, in The Community Noise Problem, supra, note 36 at 704.
39. Report to the President and Congress on Noise, supra, note 1 at 4-48.
40. Laws and Regulatory Schemes for Noise Abatement, supra, note 1 at 3-38.
41. C. Bragdon, in The Community Noise Problem, supra, note 36 at 704.
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3138 LEGAL COMPILATION—GENERAL
42. Laws and Regulatory Schemes for Noise Abatement, supra, note 1 at
1-102 and 3-48.
43. H.R. 11021, 92d Cong., 2d Sess. §2 (a) (3) (1972).
44. Ch. 71-36 (1971) amending Fla. Stat. §§ 403.031 and 403.061.
45. NJ.S.A. § 13:1G-1 to 13:lG-23 (1971).
46. Act 147, § 322(b) (1970) amending Hawaii Rev. Stat., ch. 322.
47. Lockheed Air Terminal Inc. v. City of Burbcnk, 457 F. 2d 667, 3 ERG
1983 (9th Cir. 1972), Allegheny Airlines v. Village of Cedarhurst, 238
F. 2d 812 (2d Cir. 1956), American Airlines, Inc. v. Town of Hemp-
stead, 398 F. 2d 369 (2d Cir. 1968).
48. Port of New York Authority v. Eastern Airlines, Inc., 259 F. Supp. 745
(E.D.N.Y. 1966).
49. 42 U.S.C. §4332.
50. 49 U.S.C. §§ 1701-1727, 84 Stat. 219.
51. 49 U.S.C. § 1716(f).
52. Report to the President and Congress on Noise, supra, note 1 at 4-37.
53. Laws and Regulatory Schemes for Noise Abatement, supra, note 1 at
1-108.
54. Laws and Regulatory Schemes for Noise Abatement, supra, note 1 at
1-112, 1-175.
55. Laws and Regulatory Schemes for Noise Abatement, supra, note 1 at
1-109.
56. Salt Lake City, Utah, Revised Ordinances art. 9, § 247.
57. Beverly Hills, Calif., Municipal Code §4-8.401 (1970).
58. Missoula, Mont., City Ordinances § 20-14.1; Detroit, Mich., City Code
§§ 38-6-20 to 38-6-26 (1969) ; Chicago, 111. (1971); and Minneapolis,
Minn. (1971), supra, note 33.
59. See, e.g., Burbank, Calif., Code § 21-12(c) (March 20, 1972); Chat-
tanooga, Tenn., Code § 25-34(h) (June 18, 1968); Sacramento, Calif.,
Code § 26.29 (e).
60. Portland, Ore., Code § 14.52.-2-(4) (April 4, 1970).
61. Toledo, Ohio, Code § 17-18-3 (d) (1968).
62. Alhambra, Calif., Code § 18.04 (1971) ; El Segundo, Calif., Code § 9.06
(1971).
63. Chicago, 111., Code § 17-4.6 (1971).
64. Chattanooga, Tenn., Code § 25-34 (1968).
65. Beverly Hills, Calif., Code § 4-8 (1970) ; Burbank, Calif., supra, note 59
(1970); Urbana, 111., Ordinance (1971) supra, note 33.
66. See, e.g., Alhambra, supra, note 33 (1971) ; El Segundo, supra, note 33
(1971) ; Greensboro, N.C., Code § 13-12 (1971).
67. Minneapolis, Minn., supra, note 33 (1971).
68. Chicago, 111., supra, note 33 (1971).
69. A Guide to the New York City Noise Control Code, supra, note 35.
70. See, e.g., Norfolk, Va., Code §31-48(e) (1969); Baton Rouge, La.,
Code § 102(8) (1954); Greensboro, N.C., Code § 13-12(5) (1971).
71. See, e.,g., White Plains, N.Y., Ordinance § 4(g) (June 19, 1967, amended
May 7, 1970).
72. Greensboro, N.C., Code § 13-12(b) (14) (1971); Monterey, Calif.,
Code §22-17 (1971).
73. White Plains, N.Y., supra, note 71.
74. Urbana, 111., Ordinance §§7-13 (1971); El Segundo, Calif., Code
§9.06.040, and §9.06.110 (1971); Burbank, Calif., Codes §21-11
(1972).
75. Chicago, 111., supra, note 33.
76. Statement of Robert D. Cusumano (Transcript of Noise Control Hearing
(Washington, D.C.) p. 650, November 12, 1971, held by EPA, Office
of Noise Abatement and Control).
77. Memphis, Tenn., supra, note 31.
78. White Plains, N.Y., supra, note 71.
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GUIDELINES AND REPORTS 3139
79. Alhambra, Calif., Code § 18.08.060 and 18.08.010 (1971). Subsection (b)
of this ordinance defines ambient noise level in terms of zoning and time.
80. Torrance, Calif., supra, note 33.
81. International Conference of Building Officials (ICBO), Uniform Build-
ing Code (1970, supp. 1971) ; Building Officials & Code Administrators
International, Inc. (BOCA), The BOCA Basic Building Code/1970,
5th Ed. (1970); American Insurance Association, National Building
Code (1967); Southern Building Code Congress, Southern Standard
Building Code (1969, supp. 1971).
82. Southern Standard Building Code, supra, note 81, Appendix "E."
83. El Segundo, Calif., Code § 16.04.110 (1972).
84. U.S. Department of Housing & Urban Development, Circular 1390.2
(1971).
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GUIDELINES AND REPORTS 3141
nepa —
reform in government
decisionmaking
the origins of nepa
nepa's enactment
On February 17, 1969, a bill was introduced in the United States
House of Representatives "to provide for the establishment of a
Council on Environmental Quality." 1 The following day, a measure
with similar intent was introduced in the Senate.2 In the next 11
months the two bills received Congressional consideration, with bi-
partisan sponsorship and support, were combined in conference, and
were amended to proclaim their primary purpose: "to establish a
national policy for the environment." 3 The National Environmental
Policy Act (NEPA) 4 was signed into law by the President on Janu-
ary 1, 1970. It has become the basic policy-setting Federal law re-
lating to protection of the environment.
Earlier proposals had laid a foundation for this action. A number
of related bills had been introduced in earlier Congresses but had
died in committee.5 As early as 1965, Russell Train, then head of the
Conservation Foundation, proposed "that the President establish a
Council of Ecological Advisers" to give environmental concerns "an
important new status in planning and policymaking at the highest
level of government." 6 In 1969 these ideas became reality.
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3142 LEGAL COMPILATION—GENERAL
The two bills that became NEPA were largely modeled after the
Employment Act of 1946.7 That Act, which grew out of the concern
about economic dislocations after World War II, declared a respon-
sibility in the Federal Government to maintain a prosperous and
stable national economy.8 The Act also created the three-man Coun-
cil of Economic Advisers to advise the President in carrying out that
responsibility and in preparing an annual report on the economy.9
The Employment Act was a watershed in the Federal Government's
relationship to national economic problems. By following both aspects
of that Act—declaring a Federal responsibility for action and pro-
viding for a council and an annual report—the sponsors of the 1969
bills hoped to create a similar watershed in the Government's
relationship to environmental problems.
Instead of being an inadvertent contributor to environmental deg-
radation, the Federal Government was to be made a central par-
ticipant in environmental renewal. The bills directed the President to
submit an annual report to Congress on the state of the environment.
Similar to the President's annual Economic Report, it would serve
over the years as an indicator of environmental conditions, a record
of governmental and private actions to enhance environmental qual-
ity, and a forum for raising important environmental issues.
During consideration of the bills which led to NEPA, some sup-
porters of the proposed law feared that the declaration of a national
environmental policy might be an empty utterance unless the statute
embodied some means of guaranteeing that Federal agencies would
heed the new policy. Witnesses repeatedly referred to the disastrous
oil blowout in early 1969 from offshore wells operating under Interior
Department leases in the Santa Barbara Channel. Prior to the blow-
out, they said, the Federal Government had assured that environ-
mental factors had been considered and that precautions had been
taken to prevent oil spillage. Events showed that the Government's
assurances had been more thorough than its precautions.10 Witnesses
supporting the proposed legislation produced many other examples
of what the Senate report later termed "the manner in which Federal
policies and activities have contributed to environmental decay and
degradation." "• They called for an "action-forcing" mechanism that
would guarantee that in the future the Government would follow
through in its pledge to protect the environment.12
Congress' response to this need was the provision that became sec-
tion 102 of NEPA, a provision without a close statutory precedent.
The section directs all Federal agencies to interpret and administer
their authorities in concert with the new environmental policy. Sub-
section 102(2) (C) requires agencies to prepare, for all "major
Federal actions significantly affecting the quality of the human en-
vironment," a detailed statement of what the environmental impacts
will be. In preparing the statement, agencies must consider alterna-
tive actions and consult with other agencies having environmental
expertise.
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GUIDELINES AND REPORTS 3143
The written record of NEPA's passage through the Congress is
relatively sparse in view of its later impact. In the Senate on July 10,
1969, after a single day of hearings, it was placed on the consent
calendar and passed by a voice vote.13 In the House, it reached the
floor on September 23 and was passed that day by a vote of 372 to
15.u On October 8, the Senate conferees from the Interior Com-
mittee and members of the Senate Public Works Committee reached
agreement on the Senate's position in conference with the House.
They also spelled out the relation of NEPA to a companion bill from
the Public Works Committee that later became the Water Quality
Improvement Act of 1970.ls A joint Senate-House conference com-
mittee reported an agreed version on December 17. After a brief dis-
cussion on the Senate floor of the effect of the proposed Act on other
Federal laws relating to the environment, the Senate and House
agreed to the conference report on December 20 and 23 respectively.16
precursors of section 102
Although the "action-forcing" provision of section 102, requiring
environmental impact consideration, had no direct legislative model,
it had foundations in a number of earlier legislative and judicial
developments relating to environmental protection. The importance
of section 102 is that it brings these separate strands together and
confirms them in a statute applicable across the entire Federal
Government.
Individual agencies previously had mandates to consider particular
environmental concerns in planning their activities. One of the earli-
est such mandates is section 10(a) of the Federal Power Act.17 As
amended in 1935, that law requires the Federal Power Commission
(FPC), in licensing any dam or related project, to consider the inter-
ests of commerce, water power and "other beneficial public uses,
including recreational purposes." Two landmark court decisions inter-
preted this requirement as imposing an affirmative duty on the FPC
to investigate and consider less environmentally damaging alterna-
tives to any proposal. In Scenic Hudson Preservation Conference v.
FPC,18 decided in 1965, the U.S. Court of Appeals for the Second
Circuit ruled that section 10(a) requires the FPC to consider "[t]he
totality of a project's immediate and long-range effects." It said
the FPC cannot fulfill this responsibility by sitting "as an umpire
blandly calling balls and strikes for adversaries appearing before
it; the right of the public must receive active and affirmative pro-
tection at the hands of the Commission." 19 Two years later, in
Udall v. FPC,20 the U.S. Supreme Court gave its sanction to this
reading of the Act.
In 1966 the Congress enacted section 4(f) of the Department
of Transportation Act,21 which requires the Department of Trans-
portation (DOT) to consider alternatives to proposed transportation
projects that affect the environment. Section 4(f) provides that be-
fore the Department may approve a transportation project that
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3144 LEGAL COMPILATION—GENERAL
encroaches on a public park, wildlife refuge, or historic site, the
Secretary of Transportation must find that there is no feasible and
prudent alternative and that the project has been planned to mini-
mize the encroachment. Together with section 10(a) of the Federal
Power Act, this requirement presaged the broad duty imposed by
NEPA to explore less environmentally damaging alternative actions.
NEPA's provision that agencies preparing impact statements
must consult with agencies having environmental expertise also had
precursors. The Fish and Wildlife Coordination Act,22 as amended
in 1958, was intended to bring concern for wildlife into the planning
of Federal water resource projects. To help guarantee that wildlife
values are fully considered, it requires Federal agencies to consult
with the Federal Fish and Wildlife Service and State wildlife au-
thorities in planning water resource projects. The National Historic
Preservation Act of 196623 creates a similar consultation mechanism
to protect historic buildings and sites from encroachment by feder-
ally funded projects. Each of these consultation requirements is
designed to assure that the governmental bodies charged with pro-
tecting environmental values pay close attention to the environmen-
tal effects of particular projects. Agencies can combine their
consultations under these statutes and under NEPA's broader re-
quirement and thus avoid any duplication of effort.24
The "action-forcing" provisions in section 102 of NEPA build
upon the foundations of the four earlier laws and apply to all
types of Government activities. Teamed with NEPA's establishment
of a national environmental policy and its creation of the Council
on Environmental Quality, section 102 provides a mechanism for
significant reform in Government decisionmaking.
nepa's substantive impact
a new policy is set
Although much of the public discussion of NEPA has revolved
around the environmental impact statement procedure of section
102(2) (C), NEPA's substantive thrust cannot be overlooked. The
primary purpose of Congress in enacting NEPA was to establish a
Federal policy in favor of protecting and restoring the environment.
The broad terms in which that policy is declared clearly make all
aspects of man's surroundings the subject of Federal concern.25
NEPA contains strong directives to Federal agencies to follow this
new policy. Section 102 (1) "authorizes and directs that, to the fullest
extent possible, . . . the policies, regulations, and public laws of
the United States shall be interpreted and administered in accord-
ance with" the policy of the Act. The legislative history of NEPA
indicates that the phrase "to the fullest extent possible" at the outset
of section 102 is intended to excuse compliance only when another
statute expressly precludes or makes action required by NEPA
impossible.26 Section 102(1) is supplemented by section 102(2) (B),
which directs agencies to give "appropriate consideration" to en-
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GUIDELINES AND REPORTS 3145
vironmental values in all decisions; by section 103, which directs
Federal agencies to review existing policies and practices to bring
them into line with the Act; and by section 105, which declares that
the policies and goals of NEPA "are supplementary to those set forth
in existing authorizations of Federal agencies." 27
Together, these provisions tell the agencies to add a new criterion—
effect on the environment—to those against which they have tradi-
tionally tested their actions. The far-reaching result is that agencies
whose statutory mandates previously did not call for attention to the
environmental effects of their actions are now required to take those
effects into account. And agencies whose mandates previously
directed their attention only to certain facets of the environment
now have a responsibility as broad as the environmental policy
declared in NEPA.
The implications of this reform are seen most clearly in Federal
programs in which the Government acts directly to perform a service,
to build a facility, or to finance such activities by others. In these
programs the agency in charge generally has a broad range of choices
about the size, nature, and location of the project, who receives the
funds, and the wisdom of undertaking any action at all. For example,
the Army Corps of Engineers determines, on the basis of its own
studies, whether to seek Congressional authorization for a flood con-
trol project in a certain location and what the design of the project
should be. Similarly, when the Department of Housing and Urban
Development (HUD) allocates grants and other assistance under
Federal housing programs, it can select projects to maximize the
benefits produced. It does this both in setting general criteria for the
programs and in evaluating specific projects. In planning such ac-
tions, Federal agencies are now required by NEPA to consider
environmental factors at the earliest possible stage and to mold their
actions to improve the environmental effects. This duty includes
refraining from action when the balance of the relevant public
values, including the environment, indicates that the action is not in
the public interest.28
NEPA's implications are similar where the Government does not
undertake or finance activities directly but regulates the private con-
cerns that do. A Federal agency charged with regulating private
rights or interests must consider the environmental effects of its
regulatory activities and make appropriate changes. For example, hi
granting permits to dredge or fill in navigable waters of the United
States, the Corps of Engineers must consider the ecological effects of
the applicant's proposed activity.29 Before the Coast Guard decides
whether to grant a permit for construction of a bridge across navigable
waters, it must consider the reasonably foreseeable effects on scenic
values, on the surrounding transportation system, and on public access
to the adjacent coastline.30 And the Interstate Commerce Commis-
sion, in regulating the rates charged by interstate carriers for freight
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3146 LEGAL COMPILATION—GENERAL
transport, must consider the impact of different rate structures on
the economic feasibility of recycling depletable resources.31
Where an agency previously looked at only a limited aspect of the
private activities under its regulation, NEPA forces it to broaden
its concerns substantially. The Atomic Energy Commission (AEG),
which previously considered only the radiological health and safety
effects of nuclear powerplants, now must consider all other significant
environmental effects as well, such as the impact on adjacent waters
of thermal discharges from the plants.32 For the other regulatory
agencies, too, the NEPA provisions supplement preexisting statutory
objectives with a new one—environmental protection. An agency must
consider and, as appropriate, act to minimize the adverse environ-
mental effects that can reasonably be expected from the activity sub-
ject to its regulatory action.
The actual impact of NEPA's policy on Government decisions can
already be seen. Some projects have been modified or abandoned
when their environmental effects would have been unacceptable. For
example, on the advice of the Council on Environmental Quality,
the President ordered a halt in construction of a partially completed
barge canal across northern Florida that threatened important natu-
ral values. The President stated: "[W]e must assure that in the future
we take not only full but also timely account of the environmental
impact of such projects—so that instead of merely halting the dam-
age, we prevent it." 33 The Government has since recommended that
the area be studied for possible protection as part of the wild and
scenic rivers system.34
Other examples of NEPA's impact cover a wide range of Govern-
ment actions.
The Coast Guard carefully reviewed an application from the State
of California for a permit to build a highway bridge across San
Francisco Bay. Because of potential long-range effects on the en-
vironment, including a threat to the viability of San Francisco's new
rapid transit system, the Coast Guard denied the permit. In a sub-
sequent public referendum, the voters of the area disapproved the
bridge project.35 When a detailed and comprehensive environmental
statement showed that the originally preferred route of Interstate 75
in Georgia would have adverse effects on Allatoona Lake and sur-
rounding natural areas, a new alignment which minimized impacts
was selected.36
The Army Corps of Engineers postponed indefinitely a project to
channelize portions of the Buffalo Bayou in Houston, Texas, largely
because of its negative aesthetic effects.
The draft environmental impact statement for a proposed airport
site in Fairfax County, Va., prompted adverse comments from many
sources. The County Board of Supervisors subsequently decided to
make the site a park instead.37 Environmental concerns triggered
rethinking of a plan to use a tract of Federal land adjacent to a
recreational area in Fort Snelling, Minn., as the site for a bulk mail
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GUIDELINES AND REPORTS 3147
handling facility for the Postal Service. The Government decided
instead to transfer the land to the State of Minnesota for park use.38
When the California coastal communities of Bolinas and Stinson
Beach applied to EPA for a grant for a joint sewerage system, EPA
reviewed the environmental implications of the proposal. EPA's
study indicated that the proposal would allow immediate urbaniza-
tion of a rural area over the protests of a majority of the residents,
would bring serious financial hardship to the property owners of the
area, and might harm the ecology of the most significant shale reef
on the West Coast. Discussion of these preliminary findings with the
applicants and the State led to the abandonment of the project and
the formulation of an alternative more compatible with the local
environment.
Original designs for the proposed new community of Park Forest
South, outside Chicago, called for the destruction of a unique hard-
wood forest. After the draft impact statement brought this to light,
the Government and the developer reached an agreement to change
the plans, and the Illinois State legislature is considering a bill to
buy and preserve the woods.39
The Secretary of the Interior in 1971 refused, on environmental
grounds, to authorize two proposed platforms on existing oil leases
in the Santa Barbara Channel.40 In a later proposed sale of oil and
gas leases off the eastern coast of Louisiana, the Secretary, after pre-
paring an environmental statement, eliminated a number of pro-
posed lease sites believed potentially dangerous to nearby Wildlife
Refuges and associated marshlands and estuaries.41
Changes in individual projects are only a partial index of NEPA's
impact. Perhaps a more important sign is that agencies are reviewing
their policies to determine the need for across-the-board changes af-
fecting entire Federal programs. For example, the Forest Service has
modified its multiple-use planning framework for the National
Forests. Instead of a collection of functional plans and a multiple-use
plan, the Forest Service will prepare an overall management plan for
each planning unit, guided by NEPA principles.42 The Corps of Engi-
neers, under its dredge-and-fill permit rules, reviews very closely any
new proposals to develop wetlands.43 The AEC's new procedures
under NEPA are likely to have a significant impact on nuclear power
plant technology by requiring more careful accounting of long-term
environmental costs than was previously the practice.44 The Presi-
dent's Executive Orders establishing the Refuse Act permit program,
providing for regulation of off-road vehicles on public lands, and
barring the use of poisons in Federal predator control programs all
have drawn on NEPA as part of their statutory authority.45
programs involving many actions
A practical problem may arise when an agency that makes many
individual decisions in a program affecting the environment must
implement NEPA's policy. Many agencies find themselves in this
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3148 LEGAL COMPILATION—GENERAL
situation. For example, the Forest Service grants numerous permits
for access to private mineral claims on National Forest land. The
Corps of Engineers issues a large number of permits for dredging and
filling in navigable waters. For the agency to consider all relevant
factors and balance them anew in taking each action may be un-
desirable for several reasons: It may waste the agency's resources; it
may fail to ensure consideration of cumulative long-term effects;
and it may mislead applicants about what they may expect from the
agency.
It has long been recognized that agencies can administer their
programs better if they establish their policies and practices, when-
ever possible, by general rule rather than by acting on a case-by-
case basis.46 Rulemaking allows the agency to weigh competing con-
siderations in depth and to determine a future course of action that
will best accomplish its ends. Sometimes it will not be possible to pre-
scribe general rules, because the individual cases differ too widely
or the problems do not lend themselves to generalization. But where
it is possible, it is a valuable governmental technique.
General rules can be just as valuable in bringing agency practices
into line with NEPA as they have been in implementing other Federal
policies. NEPA requires a rather finely tuned and systematic balanc-
ing of its policy against other agency objectives.47 It requires agencies
to reexamine the basic premises on which they have operated and
to take a new direction when those premises do not square with the
required concern for environmental effects.
Nothing in NEPA says that such balancing or reexamination must
be performed anew each time the agency proposes to act, without
regard to previous agency consideration of the relevant interests. No
person or institution can operate effectively under a requirement to
question its basic premises before taking each action. But considera-
tion of the environment must be dynamic. New situations must be
evaluated, and new knowledge must be brought to bear. An agency
can be both effective and responsible if it adopts rules to guide its
daily choices and reexamines those rules as necessary to respond to
changes in circumstances or in public policy. Environmental issues
not adequately covered in the rulemaking process can be considered
on a case-by-case basis. As pointed out below, an agency can follow
a similar approach in preparing impact statements under section
102(2) (C).
Agencies need, therefore, to identify areas in which NEPA's policy
can best be applied by general rules, as distinguished from areas in
which some or all issues must be evaluated with each individual
action in mind. If, for example, an agency can identify beforehand
the circumstances under which a type of development carries un-
acceptable environmental risks, it can formulate a corresponding
rule to guide applicants for Federal assistance or authorization. The
Interior Department has taken this approach in issuing rules to
govern the development of geothermal steam under the Geothermal
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GUIDELINES AND REPORTS 3149
Steam Act of 1970,48 and the Forest Service is considering similar rules
to govern means of access to mining claims on National Forest lands.
Similarly, if it can be determined what level of pollutant emissions
will be acceptable from a class of activities, a general rule can be
framed to guide the exercise of a Federal authority. This principle
underlies the Federal regulatory programs for air and water pollution.
It may be equally valuable, where appropriate, in other Federal
programs which involve many individual actions.
The question arose in Calvert Cliffs' Coordinating Committee v.
AEC 49 whether an agency may, in selecting a rule of general appli-
cability to implement NEPA, defer to a relevant rule prescribed by
another agency with environmental expertise. The AEC, in its pro-
cedures for implementing NEPA, had provided that a State
certification of compliance with water quality standards under the
Federal Water Pollution Control Act was sufficient to remove the
issue of water quality effects from further consideration in an AEC
proceeding for licensing a nuclear powerplant. The U.S. Court of
Appeals for the District of Columbia held that such automatic
deference to another, agency's views was inconsistent with AEC's duty
under NEPA to consider all environmental factors in its licensing
actions. The AEC had based its procedures on two special factors:
section 21 (b) of the Federal Water Pollution Control Act (added by
the Water Quality Improvement Act of 1970),50 which required
the State certification, and Congressional statements about the inter-
play of section 21 (b) with NEPA.51 The appeals court ruled that
NEPA required the AEC to assess water quality effects independently,
regardless of a certification of compliance with standards under sec-
tion 21 (b). The court reasoned that by making an "individualized
balancing analysis" in each case, the AEC could "ensure that, with
possible alterations, the optimally beneficial action is finally
taken." 62
It is not entirely clear whether the AEC or the court of appeals
correctly judged the Congressional intent concerning the relationship
of section 21 (b) to NEPA. Legislative clarification of the issue is
found in bills since passed by both the House and Senate to amend
the Federal Water Pollution Control Act. Those bills carry a pro-
vision, supported by the Administration, allowing the AEC and other
permit-granting agencies in their NEPA evaluations to rely on State
certifications that water quality effects will be acceptable. However,
permit-issuing agencies still would be required under NEPA to balance
water quality effects along with other factors in making the final
permit decision.53
The question of whether one agency can defer to another agency's
finding of compliance with water quality standards may have limited
importance in view of this prompt Congressional move to clarify the
law. However, it is important to note that, despite the stress in Calvert
Cliffs' on an "individualized balancing analysis," the opinion does not
say that an agency cannot turn to its own general rules to guide all
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3150 LEGAL COMPILATION—GENERAL
or part of individual decisions. As already pointed out, NEPA re-
quires an agency to balance all competing factors and to consider all
reasonable alternatives. But it does not dictate that this be done
entirely anew in each decision, without the assistance of general rules
and past experience. Decisionmakers are permitted to cut their more
complicated decisions down to manageable size. Advance determina-
tion of program policy through rulemaking can implement NEPA,
at the same time avoiding repetitious reexamination of basic principles
in the context of each individual action.
mandate for innovation
NEPA not only requires Federal agencies to appraise and improve
the environmental effects of their activities; it also mandates agencies
to develop new governmental initiatives to tackle the Nation's grow-
ing environmental problems. Section 101 declares that it is "the con-
tinuing policy of the Federal Government ... to use all practical
means and measures ... to create and maintain conditions under
which man and nature can exist in productive harmony." 54
While this responsibility for governmental innovation rests on all
agencies of the Federal Government, NEPA contemplates that a cen-
tral role will be played by the Council on Environmental Quality.
Section 204(4) tells the Council "to develop and recommend to the
President national policies to foster and promote the improvement of
environmental quality . . . ." 55 The President has reaffirmed this
responsibility in Executive Order 11514.56 The Council, working
closely with other Federal agencies, has had the responsibility for
preparing new environmental initiatives that have been included in
the President's Environmental Messages in 1971 and 1972.57 Chap-
ter 4 discusses in detail the activity of the Council and other agencies
in this area.
This affirmative responsibility of the Government to anticipate
environmental problems and to devise ways of solving them gives
hope for reversing the deterioration of our surroundings. If the Federal
Government responds vigorously to NEPA's dual command to control
the environmental effects of its actions and to devise new means of
environmental protection, it will have been faithful to its new respon-
sibility for the conditions under which we live.
the evolving impact statement process
The environmental impact statement process of section 102(2) (C)
was included in NEPA to insure an across-the-board Government
response to the Act's policy directives. That process, requiring a
public explanation of the environmental consequences of proposed
Government actions, compels substantial adjustments in the ways in
which many agencies previously did business. Like any major gov-
ernmental reform, the process has raised a number of thorny prob-
lems in its early implementation. The Council, acting under Execu-
tive Order 11514, has issued guidelines instructing the agencies on
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GUIDELINES AND REPORTS 3151
how to handle many aspects of the 102 process.58 The Council also
gives agencies additional guidance on a more informal basis.59 Because
the guidelines are an interpretation of NEPA by the agency charged
with its implementation, a number of courts have acknowledged that
they are entitled to great weight under accepted legal principles.60
Among the major problems that still persist, three types of issues
recur: what procedures agencies must follow in preparing and circu-
lating 102 statements, what the statements must contain, and what
role the Council on Environmental Quality plays in the 102 process.
procedural problems
actions requiring impact statements—Section 102(2) (C) requires
an environmental impact statement for "major Federal actions signifi-
cantly affecting the quality of the human environment." 61 The legis-
lative history contains little discussion of the meaning of this phrase.
And the courts are only beginning to furnish some guidance in inter-
preting the phrase, when they are asked to review its application to
a particular agency action."2 Probably the best guide to Congress'
intent is the strong concern, voiced throughout the hearings leading
to NEPA's enactment, for preventing unanticipated environmental
effects from Government actions. The Act calls for statements only
on major actions with significant environmental effects. With that
language it attempts to ensure that the great bulk of the environ-
mental impact wrought by Federal agencies will be analyzed through
the 102 process, while avoiding the wasteful preparation of state-
ments on minor actions or actions with insignificant environmental
consequences.
Both terms, "major" and "significant," are relative, calling for a
reasonable exercise of judgment in light of the NEPA policy. Because
the section 102(2) (C) requirement is addressed to the agency propos-
ing to take an action, it is that agency which must initially decide the
applicability of the terms in light of its knowledge of the nature and
effects of its programs. The Council on Environmental Quality has
attempted to guide this exercise of judgment through section 5 of its
guidelines.63 Moreover, the Council is always available to consult
with agencies regarding particular programs or actions. However, the
great diversity of Federal activities subject to the 102 process makes
it impossible for the guidelines to do more than elaborate in general
terms upon the statutory language.
The guidelines make clear, for example, that the overall, cumula-
tive impact of one or more actions is to be considered and that an
effect may be significant even though it is limited to one locality. The
guidelines also call upon each agency to issue its own procedures to
implement the 102 process. Those procedures are intended both to
identify agency programs that are likely to involve actions requiring
statements and to specify the factors that will guide decisions in in-
dividual cases. Virtually all the major agencies have now published
such procedures."4
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3152 LEGAL COMPILATION—GENERAL
The duty to assess the environmental consequences of a proposed
action, which flows from sections 101, 102(1), 102(2) (B), 103, and
105, is not limited to major and environmentally significant actions—
as is section 102(2)(C). Further, determining whether an action
falls within section 102(2) (C) calls for an early inquiry into what
the effects may be. Therefore, in practice, an agency contemplating
any action that may possibly affect the environment must perform
an environmental assessment and decide whether a statement is
necessary.65 A few agencies, including the Environmental Protection
Agency (EPA), have experimented with a practice of issuing a notice
of intent when this preliminary look indicates that a 102 statement
is required. The notice alerts the public that the statement will be
coming, offering an opportunity for early input. Moreover, it pro-
vides a public record of the time when preparation of the statement
was started. Similarly, an agency may make a negative declaration
when it decides that a statement is not required. The agency should,
in appropriate cases, prepare a record indicating, for future refer-
ence, why a 102 statement was considered unnecessary.66
In the first years of the 102 process, many of the controversies
over whether 102 statements were required have involved Federal
activities begun or authorized before NEPA's enactment. The Act
contains no transitional language to condition its command that any
major action with significant environmental effects taken after its
enactment must have an environmental impact statement. Because
many such actions are part of a continuing program or project
started before NEPA took effect, agencies have often faced the ques-
tion whether to prepare a 102 statement that would involve re-
appraisal of past actions or financial commitments.
To deal with these situations, section 11 of the Council's guidelines
provides that a 102 statement is necessary to assess further incremen-
tal major actions. However, the scope of alternatives realistically
available to the agency in such cases may be narrower in light of how
nearly complete the project was at the time NEPA took effect. If
prior commitments, legal or financial, make it impractical to change
the basic course of action, there should still be a 102 statement
discussing the project's environmental effects and the possibilities for
minimizing adverse environmental consequences from the remaining
major actions.
In early lawsuits testing the applicability of section 102(2) (C) to
previously commenced projects, some of the courts failed to distin-
guish the major Federal actions yet to be taken—if any—from the
earlier commitments made. This failure led to an erroneous charac-
terization of the problem as one of retroactive application of NEPA
to actions already taken. That failure also led to a corresponding fail-
ure to analyze whether the remaining Federal steps offered an oppor-
tunity to improve the project's environmental impact.67 However, in
more recent decisions the courts have turned increasingly to the
approach in section 11 of the guidelines.68
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GUIDELINES AND REPORTS 3153
The problem of applying section 102(2) (C) to pre-1970 projects
has already faded in importance as the courts have gravitated toward
a uniform approach. It should recede even further as the remainder
of the projects that were in the pipeline when NEPA was enacted
are processed and the agencies are able to turn their attention to
new projects for which environmental assessments can be performed
from the outset.
The retroactivity problem remains intense in the licensing of
nuclear electric powerplants. A number of plants were completed or
under construction when NEPA was passed and will be ready this
year and next to begin producing electricity in areas of possible power
shortage. A Federal court decision enjoining the startup of the Quad
Cities plant on the Mississippi River raised legal uncertainty whether
those plants will be available when needed.69 The case has since been
settled. But the House of Representatives has passed, and the Senate
is considering, a short-term amendment of NEPA to permit the AEG
to use emergency procedures to meet urgent needs in the licens-
ing of plants that predate NEPA. The amendment would permit use
of these plants on the basis of an abbreviated review through the
summer of 1973, pending completion of full 102 statements.70
program impact Statements—As noted above, many Federal
agency programs involve a multiplicity of individual actions, such as
grants or permits, administered under relatively uniform policies. It
was pointed out that NEPA's substantive duties can often best be
implemented in such cases by writing environmental policies into
the general rules governing a program. Similarly, the procedural
duties of section 102(2) (C) can often be implemented more effec-
tively by preparing a single statement on the program as a whole
rather than by filing separate environmental impact statements on
the individual actions. An intermediate possibility is to prepare an
overall statement assessing basic policy issues common to all actions
under a program, then to follow it when necessary with a separate
statement for each major action, limited to issues needing individu-
alized treatment. This range of possibilities is present also when a
large project is divided into small segments for administrative pur-
poses—as in the case of a major highway project.71
In many such instances the purposes of section 102(2) (C) will
best be served by an umbrella program environmental impact state-
ment. The statement may be prepared at the time the general rules
for the conduct of the program are issued, or it may simply emerge
from the thorough reexamination that NEPA requires for ongoing
programs. The program 102 statement affords an occasion for a
more comprehensive consideration of effects and alternatives than
is practicable in a statement on an individual action. It tends to
ensure that cumulative impacts likely to be slighted in a case-by-case
analysis are considered. And it avoids duplicative discussion of basic
policy questions. A program statement can be supplemented or up-
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3154 LEGAL COMPILATION—GENERAL
dated as necessary to account for changes in circumstances or public
policy and to measure cumulative impacts over time.
However, a program statement would not satisfy section 102 (2) (C)
if it were superficial or limited to generalities. The very rationale for
a program statement requires that environmental considerations be
analyzed fully. When all significant issues cannot be treated ade-
quately in connection with the program as a whole, statements of
more limited scope will be necessary on some or all individual actions
to complete the analysis.
This discussion illustrates the sophisticated judgments that an
agency must make in applying NEPA's general procedural requisites
to its programs. The complexity of the agency's task is increased by
the impossibility of doing everything at once. An agency must time
its preparation of program and individual statements to accomplish
NEPA's ends in the light of its other program objectives. When a new
program is just beginning, the obvious course is for the agency to
prepare an environmental impact statement before the program is
launched. The Department of the Interior has followed this course
in beginning exploratory development of oil shale and in launching
the exploitation of geothermal steam.72
multi-agency actions—Many Federal activities are the shared re-
sponsibility of more than one agency. For example, a highway
project may be funded by the Department of Transportation but
also require a permit from the Corps of Engineers to fill or build
in a navigable waterway. A combined water resource and recreation
project may require the cooperative efforts of the Corps of Engineers,
a river basin commission, and the National Park Service. Or a major
new policy may be initiated by the Government and its implementa-
tion will require coordinated actions by several agencies. In these
instances each agency involved may prepare its own impact state-
ment. But there are two other approaches that will usually be more
effective in complying with section 102(2) (C) : One is to designate
a "lead agency" responsible for preparing a statement prior to imple-
menting the program or policy. Another is for the agencies to prepare
a joint overview statement.
Assigning responsibility to a lead agency may be most appropriate
when the action is essentially a single project in which two or more
agencies are involved by virtue of their separate legal authorities.
Each agency's decision may relate to only a part of the project, but
in an environmental impact statement it would have to consider
the cumulative impacts of the project as a whole. Therefore, it will
be most efficient for the agencies involved to agree which is the lead
agency and assign it the responsibility to prepare a statement.
The Council's guidelines provide that the lead agency is the
Federal agency which has primary authority for committing the
Federal Government to a course of action with significant environ-
mental impact.73 At least three factors come into play in picking the
lead agency: which agency became involved in the project first,
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GUIDELINES AND REPORTS 3155
which has the heaviest involvement, and which is most expert with
respect to the project's environmental effects. The Council is ready to
assist agencies that have difficulty selecting a lead agency. Moreover,
in preparing the statement the lead agency may call on the other
agencies involved for help, or on other agencies with relevant ex-
pertise. Agencies may find cooperative arrangements very useful. The
guidelines indicate that the lead agency's 102 statement normally
should be released in final form before any of the participating agen-
cies has taken major or irreversible action on the project. The courts
have recognized that the lead agency device can be a proper way to
satisfy NEPA's procedural demands in a multi-agency context.74
An overview statement, prepared jointly by a number of agencies,
may be especially appropriate for new policy initiatives formulated
at an interagency level. In the shaping of policy on a major issue
with environmental implications, it is necessary to explore a broad
range of alternative actions that fall outside the authority or ex-
pertise of any single agency. Even the narrower course of action ulti-
mately chosen often requires implementation by several agencies.
Preparation of an overview statement by an interagency group can
make use of each agency's special knowledge while avoiding the
duplication inherent in separate statements. In addition, it can assure
that a full environmental analysis is performed before the Govern-
ment sets out on a course of action. When later specific implementing
actions require additional 102 statements^ those statements can rely
on the overview statement for discussion of the general policy issues.
A judicial discussion of the role of an overview statement came
in a lawsuit under NEPA challenging a proposal by the Department
of the Interior to sell leases for oil and gas exploration on the Outer
Continental Shelf. The proposal was one of the initiatives arising out
of the President's 1971 Energy Message. Although the studies leading
up to the Message included environmental factors, the preparation of
environmental impact statements was left until the time of the imple-
menting actions of the Department of the Interior, the AEG, and
other agencies. The Department of the Interior's proposed offshore
lease sale proved to be the first action to implement the President's
Message. The responsibility fell to Interior to act as the lead agency
in discussing the broad range of alternative energy sources to be
assessed in connection with the entire package of initiatives.
In a court test of this procedure, the U.S. Court of Appeals for
the District of Columbia held that, although a joint overview state-
ment might have been prepared in connection with the Energy
Message, it was legally permissible "to defer the impact statement
from the time of programmatic directive to the tune of the imple-
menting specific actions." 75 However, because the energy policy in-
volved numerous and diverse initiatives, Interior's 102 statement
covering its lease sale did not rule out a need for additional state-
ments covering the other major actions. For example, the Atomic En-
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3156 LEGAL COMPILATION—GENERAL
ergy Commission has prepared an impact statement covering its proj-
ect for demonstrating a liquid-metal fast-breeder nuclear reactor.7"
Some duplication will necessarily occur in these multiple state-
ments. Moreover, each agency involved must discuss alternatives and
environmental effects outside its areas of primary expertise. For these
reasons, an early overview statement has advantages over the other
approaches when a number of proposed actions are part of a coordi-
nated plan to deal with a broad problem. It can be expected that
overview statements will find more extensive use in the future.
A similar need for interagency coordination arises when an activity
requiring a 102 statement is also subject to a like environmental evalu-
ation process under State law. As noted in Chapter 5, at least 10
States77 and Puerto Rico now have an impact statement process for
State or local agency actions affecting the environment. A number of
other States are considering such laws. More and more instances will
occur in which a project involves both State and Federal agencies
and requires environmental assessments under both State and Federal
law.
In most of these cases the agency whose involvement in the project
comes first will be the first to evaluate its environmental effects. This
will usually be a State agency which formulates or approves a pro-
posal before sending it on for Federal action. For example, State and
local agencies initiate proposals for construction of sewage treatment
plants and recommend the proposals to EPA for Federal funding. If
State law requires an environmental analysis, the appropriate State
or local agency will usually complete the analysis before referring the
proposal to EPA. EPA will then have the benefit of the State's study
in preparing a 102 statement if the project requires one under
NEPA. Experiments are already underway in some States with
joint State-Federal preparation of impact statements.
State and Federal agencies should cooperate closely in these situa-
tions to minimize any duplication of effort. The basic studies, whether
performed by the State or Federal agency or jointly, can be tailored
to help satisfy both the State and Federal requirements. Moreover,
it should generally be possible to combine the comment processes
under both laws, to avoid consulting expert agencies twice. The re-
sult of the State impact statement requirement will be to ensure that
environmental effects get attention early in the development of pro-
posals by State agencies, even before the Federal involvement would
otherwise begin.
the comment process—NEPA requires each agency, prior to com-
pleting a 102 statement, to "consult with and obtain the comments
of any Federal agency which has jurisdiction by law or special exper-
tise with respect to any environmental impact involved." The com-
ments thus obtained, as well as those from relevant State and local
agencies, are to accompany the proposal "through the existing agency
review processes" and are to be made public with the 102 statement.78
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GUIDELINES AND REPORTS 3157
The Council's guidelines make clear that these requirements also
include the comments of private organizations and individuals.78
To enable all of these entities to make informed comments, the
guidelines require that draft statements be circulated to other agen-
cies and released to the public for review at least 90 days before the
proposed action. The agency must consider the comments its receives
and change its proposal and the statement as appropriate. The agency
must then make the final statement and comments public at least
30 days before taking action. Agencies may consult with the Council
about modifying these time limits to meet emergency situations or
when program effectiveness is threatened.80 When a public hearing
is held, the draft statement is made available at least 15 days before-
hand—to permit informed discussion of environmental issues at the
hearings.
These provisions for review and comment have impacted heavily
on the Federal Government. They have opened to public participa-
tion many Government decisions that were previously made in-
formally and without prior public notice. The Council 'believes that
NEPA's public comment process can be assimilated into the agencies'
existing planning and review procedures for new proposals and still
delay decisionmaking little, if at all. The comment process can be an
important step toward a more open and responsive Government when
environmental issues are involved.
Agencies and private groups whose interests and expertise put
them frequently in a commenting role on draft 102 statements have
complained at times of the difficulty of preparing helpful comments
in only 30 to 45 days. For example, the Department of the Interior
is asked to comment on hundreds of proposed actions affecting land
use and fish and wildlife values. EPA, with its expertise in pollution
control, faces a similar situation. EPA's workload is increased by sec-
tion 309 of the Clean Air Act. Enacted shortly after NEPA, section
309 supplements NEPA's general comment provisions with a require-
ment that EPA review and comment publicly on Federal actions that
affect its areas of responsibility.81 Private environmental groups, too,
often find their resources taxed by the opportunities for comment on
Federal actions.
One answer to this problem, obviously, is for the commenting enti-
ties to add the staff and other resources to handle the commenting
task. The opportunity to make Federal decisionmaking better in-
formed and more carefully planned warrants the necessary man-
power. However, even with adequate resources, it is often impossible
to prepare comments in 30 days that will do justice to a draft state-
ment that may have taken years to prepare. It is probably impracti-
cable to solve the time problem by an across-the-board extension of
the minimum period between circulation of the draft statement and
agency action. A significant extension would impose a delay incom-
patible with the nature of some Government programs.
Agencies are free, of course, to take longer when the program
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3158 LEGAL COMPILATION—GENERAL
permits and when NEPA's policy would be served by deeper scru-
tiny. For example, the Department of the Interior permitted exten-
sive time for comment and held hearings in the District of Columbia
and in Alaska before writing its final statement on the Trans-Alaska
Pipeline System. But in most cases improvement of the comment
process will require that agencies develop means of giving ample
advance notice and encourage consultation before the draft state-
ment is finished. By making other agencies and groups aware that a
draft is being developed, an agency can give them time to prepare
for the upcoming opportunity to comment. Such a warning may also
bring in a faster feedback that permits earlier modification of the
proposal and thereby avoids later confrontation. Some agencies al-
ready are developing the means of earlier notice and consultation.
Further experimentation promises substantial benefits in making the
comment process a more effective tool.
A question persists about how a draft statement should compare
to a final statement in content and comprehensiveness. The draft
serves as the primary means of informing others about the environ-
mental effects of a proposed action and of possible alternative
actions. Therefore, it should embody a thorough airing of each of
the points specified in section 102(2) (C). By the time it circulates
a draft, the initiating agency should have fully explored those
points, with help from other sources when necessary, rather than
leaving parts of the analysis to be furnished by commenting groups.
In short, a draft statement should be capable of serving as the final
or "detailed" statement if no comments come back.
However, the very rationale for consultation with others is that
a commenting agency or group may uncover errors or omissions
in the original environmental analysis. The final statement, when
issued, thus will ideally be comprehensive and will give accurate guid-
ance in the agency's decision whether to go ahead as planned, modify
the project, or abandon it. However, if a final statement is chal-
lenged in court and found legally defective, it can be further revised,
and the ultimate product will reflect the court's legal guidance.
One argument holds that when a commenting group or review-
ing court has pinpointed a defect in a statement, it should be
corrected in a new draft and the new draft circulated for additional
comments. One Federal district court, in a case involving the Interior
Department's proposed offshore Louisiana oil and gas leases, ap-
pears to have adopted this view.82 However, to impose a flat re-
quirement of recirculation, even when the project itself is not
changed, could cause unnecessary repetition and delays, often with
little gain in fulfilling the purpose of section 102(2) (C). Indeed, it
might create an incentive for an agency not to improve its statement
after circulating the draft. A commenting group or reviewing court
may contribute valuable factual or legal insights which can then be
incorporated into the statement. If the defect is fully corrected in
the revised statement, then the 102 process has accomplished its
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GUIDELINES AND REPORTS 3159
primary goal: a thorough environmental analysis incorporated in
a document for the decisionmaker that is made public at least 30
days before any proposed action. Other agencies and groups have
been apprised and have contributed to the analysis. Recirculation
should be considered only when the second statement discusses sig-
nificant new issues. Judgments on the need for recirculation are
best made on a case-by-case basis. But at some point the process of
circulation and comment must end.
A different situation exists when, after a draft statement is circu-
lated, an agency changes its plans and proposes an action not even
discussed as an alternative in the draft. In that event the agency has
in effect come up with a new proposal on which other agencies and
the public have not had a chance to comment. Such a new proposal
should be the subject of a draft statement of its own whenever the
proposed action is major and the environmental effects significant.
environmental regulatory activities—Section 102(2) (C) requires
"all agencies of the Federal Government" to prepare environ-
mental impact statements on major actions significantly affecting
the environment. However, the discussions leading to the enact-
ment of NEPA showed that the primary concern of the Congress
was the many Federal Government agencies that did not have a
clear mandate to consider environmental effects and to protect the
environment. The Congress recognized that Federal programs, such
as the air and water pollution regulatory programs, already operated
under statutes designed to protect the environment. The relationship
of NEPA's more general environmental commands to those existing
statutes was considered in the debate leading to NEPA's enactment.
In a statement on the Senate floor shortly before NEPA's final
passage, Senator Jackson of Washington, its principal Senate sponsor,
said:
Many existing agencies such as the National Park Service, the Federal
Water Pollution Control Administration and the National Air Pollution Con-
trol Administration already have important responsibilities in the area of
environmental control. The provision[s] of section 102 (as well as 103)
are not designed to result in any change in the manner in which they carry
out their environmental protection authority. This provision is, however,
clearly designed to assure consideration of environmental matters by all
agencies in their planning and decisionmaking—especially those agencies
who now have little or no legislative authority to take environmental con-
siderations into account.83
Similar statements were made in both houses of Congress.84 They
show Congress' clear understanding of NEPA's substantive impact:
As recited in section 105, NEPA's requirements were to supplement,
but not supplant, "those set forth in existing authorizations of Fed-
eral agencies." 85
However, the question has since arisen whether the procedural
duties of section 102(2) (C) apply to environmentally protective
regulatory programs. Were agencies administering those programs,
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3160 LEGAL COMPILATION—GENERAL
though guided by other environmental legislation, nevertheless to
prepare 102 statements when their regulatory actions significantly
affected the environment?
Relying on the statements in NEPA's legislative history that section
102 was "not designed to result in any change in the manner in
which [agencies with environmental regulatory responsibilities] carry
out their environmental protection authority," the Council in its
guidelines interpreted NEPA as excluding the exercise of such au-
thority from the 102 requirement. The President, shortly after
NEPA's passage, consolidated most of the Federal pollution control
regulatory programs into the new Environmental Protection Agency.
Therefore, section 5(d) of the Council's guidelines limits exemption
from the 102 process to "environmental protective regulatory activ-
ities taken or concurred in by" EPA.86
NEPA itself contains no specific guidance on this point. As a result,
there has been disagreement about the authority for, and scope of, this
exemption. The disagreement led to decisions by two Federal district
courts—in Kalur v. Resor and Sierra Club v. Sargent—that the
water quality permit program, established under the Refuse Act of
1899 and administered by the Corps of Engineers with EPA con-
curring on each permit, was subject to environmental impact state-
ments.87 In three other cases, business groups are arguing that EPA
must prepare 102 statements when it sets air pollution standards.88
In order to clarify the uncertainty, EPA has started a study of the
effects of applying the 102 process to its regulatory activities. That
study will permit EPA to specify the extent to which it believes its
activities should or should not be subject to impact statements.89
EPA's study, and the forthcoming decisions on Government appeal of
the Kalur and Sierra Club cases, should clarify NEPA's requirements
in this area. Meanwhile, the Council and EPA have recommended to
the Congress a temporary moratorium in applying section 102(2)
(C) to the Refuse Act permit program.90 This would allow rapid
processing of the initial backlog of over 20,000 permit applications on
existing facilities. Permits issued during the moratorium would be
subject to arrangements developed for handling future applications.
formal regulatory procedures—Many Federal regulatory agencies
must base their actions on the record of a hearing at which
concerned parties are permitted to present facts and arguments.91
The procedures applicable to most such agencies are spelled out in
the Administrative Procedure Act (APA)92 and are often further
elaborated in the agencies' own statutes. Difficulties have arisen in
accommodating these procedures to the requirement in section 102
(2) (C) that the environmental impact statement "accompany the
proposal through the existing agency review processes."
The procedures of the FPC illustrate the difficulty. If an applica-
tion is made to the FPC for a certificate to construct a hydroelectric
power facility, and the application is opposed by an intervenor, a
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GUIDELINES AND REPORTS 3161
hearing is held at which the opposing views are aired. Each party at
the hearing is entitled to confront and cross-examine the opposing
witnesses. The hearing examiner then makes an initial decision and,
if that is challenged, the Commission itself makes a final ruling.
The rules adopted by the FPC to implement NEPA require the
applicant to submit with his application a report containing enough
information to be the basis for a 102 statement. Rather than writing
a draft statement prior to the hearing, the agency staff, under the
FPC rules, circulates the applicant's report as the basis for comments
from other agencies and discussion at the hearing. The FPC takes
the position that the APA makes it preferable for its staff not to take
positions on the environmental issues prior to the hearing. After the
hearing, the FPC staff prepares a brief which includes the elements of
a draft 102 statement. The parties in the proceeding get the brief,
but there is no agency draft statement circulated to other agencies
and to the public for comment. The hearing examiner considers the
briefs of the staff and the parties and issues his initial decision. His
decision is explained in an opinion that includes a final 102 statement.
If Commission review is sought, the Commission may revise the final
102 statement in its own opinion.
The FPC procedures have been attacked by environmentalists as
inconsistent with NEPA on two grounds: first, that by failing to
require a draft statement prior to the hearing, they ignore NEPA's
requirement that a statement accompany the proposal through the
existing agency review processes; and second, that the failure to cir-
culate the staff draft statement to any agencies not involved in the
proceeding violates NEPA's requirement to obtain comments of
expert agencies.
In Greene County Plannning Board v. FPC,S3 involving a chal-
lenge to the FPC's authorization of a transmission line to connect
with a powerplant in Gilboa, N.Y., a U.S. court of appeals agreed
with the first of these arguments. The court held that the FPC has
"abdicated a significant part of its responsibility by substituting the
[draft] statement of [the applicant] for its own" as the only document
available prior to the hearing. Considering the FPC's hearing "an
existing review process," the court said that NEPA would be satisfied
only if "the agency's own" draft statement was prepared for the
parties to see before the hearing. The court said that circulation of
the applicant's draft to other agencies satisfied NEPA's consultation
requirement. But it indicated that it would be preferable for the
FPC to circulate its own draft, as the AEG does in similar formal
licensing proceedings.94
In response to the claim that the APA requires the agency
staff to refrain from taking a position prior to the hearing, the
court held that the APA prevents only premature decisions by the
Commission members but does not prevent release of a draft state-
ment prepared by the agency staff without participation by the Com-
mission members.95 The court also held that parties opposing the
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3162 LEGAL COMPILATION—GENERAL
application must be given the opportunity at the hearing to cross-
examine the applicant and the FPC staff about the draft statement.
The FPC is seeking review of the Greene County decision in the
Supreme Court.
content of impact statements
Section 102(2)(C) specifies that environmental impact state-
ments must cover five points:
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the
proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of man's environment
and the maintenance and enhancement of long-term productivity, and
(v) any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be implemented.00
Section 6 of the Council's guidelines elaborates on these require-
ments. Early court decisions confirmed beyond doubt that together
they are intended to bring "full disclosure" of the environmental im-
plications of an impending decision.97 An impact statement must
discuss "all known possible environmental consequences of proposed
agency action." 98 Only then can it serve its purpose—to help the
agency to decide and to fully inform the public, the President, and
the Congress on the issues.
Implementing the 102 process has raised a number of questions
about the required content of impact statements. Out of this ques-
tioning have come three decisions by the U.S. Court of Appeals for
the District of Columbia, which give added guidance in this impor-
tant area.
duty to consider opposing Views—The statement prepared by the
AEC for the "Cannikin" underground nuclear test on the island of
Amchitka in autumn 1971 was challenged in court. The plaintiffs
argued that the AEC statement failed to discuss the views of experts
who disagreed with the AEC's scientists about the possible dangers
from the test. The courts never finally ruled on the adequacy of the
AEC statement, because the case was mooted by the actual per-
formance of the test. But the litigation produced a major opinion
defining the duty to discuss opposing views under NEPA. In Com-
mittee for Nuclear Responsibility v. Seaborg,09 the U.S. Court of
Appeals for the District of Columbia held that a 102 statement must
inform "the officials making the ultimate decision ... of the full
range of responsible opinion on the environmental effects" of the
proposal. A statement must therefore "set forth the opposing views"
on significant environmental issues raised by the proposal. The court
stressed that it would be "arbitrary and impermissible" to omit from
a statement "any reference whatever to the existence of responsible
scientific opinion" on such issues. It noted, however, that "only re-
sponsible opposing views need to be included" and that "the agency
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GUIDELINES AND REPORTS 3163
need not set forth at full length views with which it disagrees." What
is required is "a meaningful reference that identifies the problem at
hand for the responsible official." 10°
Taken together, the requirement that a draft statement be cir-
culated for comment and the requirement to discuss opposing views
make the 102 statement a very effective way to meld the best knowl-
edge on environmental issues. The initiating agency should, of course,
consider all major schools of thought in its draft statement. If there
are responsible opinions of which the agency is unaware, they can be
brought out in comments on the draft. This enables the agency to
reevaluate the project in light of the comments and to discuss them
in the final statement.
duty to discuss alternatives—As noted above, the Interior Depart-
ment was challenged under NEPA when it proposed a sale of oil
and gas leases on the Outer Continental Shelf as one implementing
step under the President's Energy Message. In Natural Resources
Defense Council v. Morton.,101 the Court of Appeals for the District
of Columbia held that Interior's 102 statement contained an inade-
quate discussion of alternative courses of action. The court's opinion
reaffirmed the importance of the duty to discuss alternatives and
examined the scope of the duty.
The court noted that the terse language in section 102(2) (C) on
alternatives had been explained in the Senate as requiring a discus-
sion of "the alternative ways of accomplishing the objectives of the
proposed action and the results of not accomplishing the proposed
action." 102 It also noted that this requirement in turn is buttressed
by the requirement of section 102(2) (D) that an agency
study, develop, and describe appropriate alternatives to recommended courses
of action in any proposal which involves unresolved conflicts concerning
alternative uses of available resources.103
The court, quoting the Council's guidelines, said that these pro-
visions require not only a "rigorous exploration" and description
of alternative courses of action but also "an analysis ... of their
costs and impact on the environment." 3M
The Government argued that the only alternatives to which this
requirement applies are those that can be adopted and put into
effect by the official or agency issuing the statement. Many of the
possible alternative ways of producing the energy that Interior pro-
posed to tap from the Outer Continental Shelf were within the
province of agencies other than Interior. So defending lawyers argued
that Interior was not required to discuss them. The court rejected
this as inconsistent with the Congress' purpose in section 102(2) (C)
to institute "a comprehensive approach to environmental manage-
ment." The court declared that "it is the essence and thrust of
NEPA that the pertinent statement serve to gather in one place a
discussion of the relative environmental impact of alternatives"—
including all the alternatives reasonably available to the Govern-
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3164 LEGAL COMPILATION—GENERAL
ment as a whole. Even if some of those alternatives are outside the
authority of the agency preparing the statement, their discussion
will inform the public on the issues and guide the future choices of
the ultimate decisionmakers in the Federal Government—the Presi-
dent and the Congress. The court noted that the importance of this
broad discussion of alternatives was highlighted in the case before
it—in which the proposed action was part of a broad governmental
plan to deal with the energy problem, yet the major policy tradeoffs
had not been discussed in an overview statement on the entire plan.
However, the court stressed that it was not asking the impossible
in a discussion of alternatives. It observed that "[a] rule of reason
is implicit in this aspect of the law, as it is in the requirement that
the agency provide a statement concerning the opposing views that
are responsible." 105 What NEPA requires is "information sufficient
to permit a reasoned choice of alternatives so far as environmental
aspects are concerned." 106 If an alternative has little or no effect on
the environment, the environmental impact statement may simply
state that that is the case. A course of action promising results only
in the distant future need not be discussed as an alternative to a pro-
posal designed to deal with a short-term problem. Detailed discus-
sion is not required of alternatives that "are deemed only remote and
speculative possibilities, in view of basic changes required in statutes
and policies of other agencies." And the agencies need not indulge
in " 'crystal ball' inquiry" in assessing the effects of alternatives. The
agency will have taken the "hard look" demanded by NEPA if it
has discussed the reasonably foreseeable impacts with a thorough-
ness commensurate with their severity and the significance of the
action.107
"balancing" opposing considerations—Agencies have public val-
ues to consider other than just the environment. Balancing them
against environmental values is inherent in the duty imposed by
NEPA. If the environmental effects are adverse, the agency must
consider whether they outweigh the benefits of the proposal. This
implicit requirement is confirmed by the directive of section 102
(2) (B) that agencies develop methods for giving "presently un-
quantified environmental amenities and values . . . appropriate
consideration in decisionmaking along with economic and technical
considerations." 108
However, NEPA is less clear on whether this balancing of environ-
mental against other values must be spelled out in the environmental
impact statement. Each of the five items expressly required of state-
ments under section 102(2) (C) relates to environmental effects—
except the third, which does not specify what type of information is
necessary about "alternatives to the proposed action." It is not wholly
clear from the bare language of section 102(2) (C) whether the 102
statement is to catalog only the environmental effects of the proposed
action and alternatives or whether it is to identify all of the important
values bearing on the wisdom of the proposed action. Is it to state
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GUIDELINES AND REPORTS 3165
the various opposing considerations which enter into the agency's
decision?
The legislative history suggests that the Congress did expect the
102 statement to record the agency's tradeoffs of competing values.
In explaining the bill on the Senate floor, Senator Jackson said:
Subsection 102(c) [now 102(2) (C)] establishes a procedure designed to
insure that in instances where a proposed major Federal action would have a
significant impact on the environment that the impact has in fact been
considered, that any adverse effects which cannot be avoided are justified by
some other stated consideration of national policy, that short-term uses are
consistent with long-term productivity, and that any irreversible and irre-
trievable commitments of resources are warranted. (Emphasis added.)108
This interpretation is supported by several statements in court
decisions. In the Calvert Cliffs' case, the court stressed the necessity
for balancing under NEPA. And it interpreted the role of the 102
statement in showing how the balancing was done:
In some instances environmental costs may outweigh economic and tech-
nical benefits and in other instances they may not. But NEPA mandates a
rather finely tuned and "systematic" balancing analysis in each instance.
To ensure that the balancing analysis is carried out and given full effect,
section 102(2) (C) requires that responsible officials of all agencies prepare
a "detailed statement" covering the impact of particular actions on the en-
vironment, the environmental costs which might be avoided, and alternative
measures which might alter the cost-benefit equation.110
Similarly, in Natural Resources Defense Council v. Morton, the court
observed that:
The impact statement provides a basis for (a) evaluation of the benefits
of the proposed project in light of its environmental risks, and (b) comparison
of the net balance for the proposed project with the environmental risks
presented by alternative courses of action.111
, This requirement to identify countervailing interests complements
the primary purpose of the 102 statement: to assess the environ-
mental effects of possible actions. NEPA was enacted out of a concern
that environmental considerations were not being fully assessed before
action was taken. When an agency proposes to go ahead despite ad-
verse environmental consequences, the 102 statement must identify
the other interests that justify going ahead. Of course, NEPA's pur-
poses would not be served if the statement were to deteriorate into a
promotional document in favor of the proposal, at the expense of a
thorough and rigorous analysis of environmental risks. Moreover, it
may be impossible and unnecessary to discuss the countervailing in-
terests in the same detail as environmental factors. The court in the
Morton case observed that "the consideration of pertinent alterna-
tives requires a weighing of numerous matters, such as economics,
foreign relations, [and] national security." 112 A detailed discussion of
each of these subjects could require as much space as the environ-
mental analysis itself, destroying the focus of the 102 statement and
going beyond the purpose of the Act. What is necessary is a succinct
recital of the interests being balanced, which will alert the President,
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3166 LEGAL COMPILATION—GENERAL
the Congress, and the public to the nature of the interests which are
being served at the expense of environmental values.
the role of the council on environmental quality
NEPA requires that each 102 statement be made available to the
President, to the Council on Environmental Quality, and to the
public.113 Since the Council is designated by title II of NEPA as
environmental advisor to the President, the guidelines say that sup-
plying a 102 statement to the Council satisfies the obligation to make
it available to the President.114 But there is nothing in the Act speci-
fying what the Council is to do with the 102 statements that it
receives.
Two important constraints help to define the Council's role in the
102 process. First, NEPA does not transfer to the Council the respon-
sibility to make each of the many Government decisions that signif-
icantly affect the environment. That responsibility remains in the
Federal officials who administer the programs and who, as the re-
sponsible officials under NEPA,115 must prepare environmental im-
pact statements. Thus, the Council has no legal veto power over
agency proposals. However, it does perform an important advisory
role with the agencies and the President. Of course, the decisions of
the heads of executive agencies are subject to review by the President
as Chief Executive.
Second, NEPA establishes the Council in the Executive Office of
the President as a small policymaking and coordinating group, not
as another large addition to the Federal bureaucracy. With a total
staff of less than 60, the Council cannot make a thorough study, even
for advisory purposes, of every 102 statement filed with it.
Within these limitations, the Council plays a key role in the 102
process. Under Executive Order 11514, the Council is charged with
issuing guidelines to Federal agencies for implementing section
102(2) (C) .116 Through this guideline mechanism, through assist-
ance to agencies in preparing their own procedures for implementing
NEPA, and through continuing consultation with agencies on their
performance, the Council attempts to help agencies build NEPA's
policy objectives into their decisionmaking apparatus. The Council
believes that the consideration of environmental factors will be most
effective if it comes in the early stages of program and project formu-
lation. If the 102 process is not closely integrated at this early point,
it risks becoming an overlay upon agency decisionmaking. And it
tends to serve as a post facto justification of decisions based on tradi-
tional and narrow grounds. The Council's success in winning its
objectives hinges largely upon its ability, through the review of
section 102 statements and agency 102 procedures, to identify and
pursue environmental issues.
The Council also attempts to use the 102 process to identify sig-
nificant recurring substantive problems that point to a need for
general reform of a Federal program through administrative action,
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GUIDELINES AND REPORTS 3167
Presidential order, or legislation. The interests protected by NEPA
include not only pollution control and land use but many other
aspects of the quality of life which are beyond the expertise of any
single operating agency. So the Council plays an essential role in
coordinating Government actions affecting those interests. Where
the 102 process reveals a need for more comprehensive Government
policies or programs, the Council can guide policy formulation and
program development.
The 102 process also alerts the Council to the very significant
projects whose environmental effects warrant careful Council review.
After reviewing the 102 statement, the Council may advise the initi-
ating agency or the President concerning the project.
As of May 31, 1972, the Council had received draft or final impact
statements on 2,933 agency actions. About half of these—1,552—are
actions for which final statements have been filed and for which the
102 process is now complete. There are still 1,381 draft statements in
process. In recent months, filings of finals and drafts combined have
averaged about 10 each working day. Draft statements, which repre-
sent new proposals, are averaging about 4 to 5 each day—down from
roughly 10 each day 8 months ago. The decrease primarily reflects a
drop in the filings of highway 102's as State highway departments
clear out their backlog of projects requiring NEPA analysis.
Despite this declining trend, transportation projects account for
60 percent of all actions for which 102 statements have been filed to
date. Corps of Engineers projects make up about another 15 percent.
This means that the remainder of the Federal establishment accounts
for only 25 percent of the actions for which 102 statements have been
filed. In nearly 2l/z years since NEPA's enactment, fewer than 800
statements have been prepared for all categories of Federal actions
other than highways, airports, and Corps activities. That is a rate of
roughly 300 per year out of the thousands of Federal projects and
actions initiated annually. These data imply that some agencies are
not doing enough to define actions appropriate for 102 treatment and
to prepare and submit environmental impact statements. In such cases
the question is not whether the goals of NEPA are being imple-
mented effectively but whether they are being implemented at all.
The Council is concerned about this and is working closely with
agencies to ensure broad compliance with the requirements of sec-
tion 102(2) (C).
The Council's goal is to make the 102 process self-implementing,
so that environmental factors will receive proper attention without
needing frequent Council or court intervention. Public participation
plays a vital role in realizing this goal by sounding an alert when
an agency has failed to consider important environmental effects.
Together, the Council, the public, and commenting agencies can
help to realize NEPA's objective of making "environmental pro-
tection a part of the mandate of every Federal agency and
department".117
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3168
LEGAL COMPILATION—GENERAL
Figure 1
Environmental Impact Statements
Filed with the
Council on Environmental Quality
Through May 1972 by Agency *
DEPARTMENT OF TRANSPORTATION
ARMY CORPS OF ENGINEERS
DEPARTMENT OF AGRICULTURE
*
TOTAL NUMBER^
OF STATEMENTS „
2933
«*
DEPARTMENT OF THE INTERIOR
ATOMIC ENERGY COMMISSION
FEDERAL POWER COMMISSION
GENERAL SERVICES ADMINISTRATION
DEPARTMENT OF HOUSING
AND URBAN DEVELOPMENT
ALL OTHERS
'«»-
NUMBER OF STATEMENTS BY FEDERAL AGENCY
* Includes all final statements and draft statements for actions on which a final
statement has not yet been filed.
the courts and nepa
Citizen enforcement of NEPA through court action has been one
of the main forces in making the Act's intended reforms a reality.
The Council's Second Annual Report chronicled the.early cases
brought under the Act and described the implications of this citizen
enforcement.118 The events of the past year indicate that citizen law-
suits continue to provide a check on agency compliance with NEPA
and to resolve important questions about its interpretation.
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GUIDELINES AND REPORTS
3169
Figure 2
Environmental Impact Statements Filed with the
Council on Environmental Quality
Through May 1972 by Type of Federal Action*
ROADS (includes 201 roads through parks)
TOTAL NUMBER
„OF STATEMENTS,
2933
WATERSHED PROTECTION AND FLOOD CONTROL
ALL OTHERS
'*'*"" ' AIRPORTS
NAVIGATION
ELECTRIC POWER
PARKS, WILDLIFE REFUGES AND
RECREATIONAL FACILITIES
LAND ACQUISITION
AND DISPOSAL
PESTICIDES
AND
HERBICIDES
NUMBER OF STATEMENTS BY TYPE OF FEDERAL ACTION
* includes all final statements and draft statements for actions on which a final
statement has not yet been filed.
The lawsuits brought under NEPA since its enactment now num-
ber over 200. The bulk of them have involved federally assisted
highway or airport projects, Corps of Engineers water resources proj-
ects, land management activities of the Interior or Agriculture De-
partment, licenses for nuclear powerplants, and federally assisted
housing projects. The litigation has spawned a number of major
decisions, in which the courts not only have helped to interpret
NEPA but also have more clearly defined their own role under the
Act.
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3170 LEGAL COMPILATION—GENERAL
citizen standing—the mineral king decision
The law of citizen standing was reviewed in chapter 5 of the
Council's Second Annual Report. In the succeeding year, court deci-
sions have continued to confirm the right of citizens and citizen
groups to invoke NEPA's protections when environmental values
are threatened by an agency's failure to comply with the Act. Federal
court decisions during the last year have upheld the "standing" of
both individuals and public interest groups to sue under NEPA in
diverse situations.119 The Supreme Court decision in Sierra Club v.
Morton (the Mineral King case) ,120 which involved laws other than
NEPA, frames new guidelines on the scope of citizen standing under
all Federal laws protecting environmental values.
In the Mineral King case, the Sierra Club challenged the legality
of a ski resort development on Federal land in the Mineral King
Valley, which lies in the southern end of the Sierra Nevada Moun-
tains in California. The Sierra Club argued that the proposed devel-
opment violated Federal statutes governing the management of the
National Forests and National Parks.121 The Supreme Court held
that the Sierra Club had not asserted a sufficient stake in the preserva-
tion of the Valley to have standing to bring the suit. However, the
Court's opinion strongly confirmed the right of appropriate citizens
and groups to sue to vindicate environmental interests. It also indi-
cated what steps a group such as the Sierra Club must take to be
able to bring such suits in the future.
The Supreme Court confirmed in clear langnage that an injury
to a noneconomic interest such as "the scenery, natural and historic
objects and wildlife" of the Mineral King Valley is a sufficient base
for a suit under the general court review provision of the Adminis-
trative Procedure Act.122 The Court said:
Aesthetic and environmental well-being, like economic well-being, are
important ingredients of the quality of life in our society, and the fact that
particular environmental interests are shared by the many rather than the
few does not make them less deserving of legal protection through the legal
process.123
The Court observed, however, that "the impact of the proposed
changes in the environment of Mineral King will not fall indis-
criminately upon every citizen" but will be felt directly only by those
who use the area. Therefore, only such users and organizations repre-
senting such users have sufficient threatened injury to aesthetic and
recreational values to be entitled to challenge the development in a
Federal court.
The Sierra Club did not assert that its activities or those of its
members would be affected by the development. It merely relied
on its institutional interest in protecting natural areas such as Mineral
King. The Court held that the Club had not asserted a sufficient
basis for suit. The Court pointed out that the Sierra Club was free
to go back to the lower Federal courts to seek to amend its complaint
to claim a more direct injury. The Club has since done so.
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GUIDELINES AND REPORTS 3171
The Court emphasized that a citizen or group which establishes
its standing to sue by showing a direct involvement with the en-
vironmental asset at stake, is not limited in court to asserting just
its own interest in the matter. Such a plaintiff may also assert the
interest of the general public in protecting the threatened environ-
mental values. Therefore, the requirement that the person seeking
review assert an injury to himself "does not . . . prevent any pub-
lic interests from being protected through the judicial process." 124
The Court in the Mineral King case did not address itself to
another aspect of citizen standing: Who is entitled to sue when
Federal action threatens legally protected environmental values
enjoyed by the public as a whole, rather than by any particular
user group? The values protected by Federal endangered species
laws,125 for example, seem to belong to all citizens of the United
States. Moreover, in NEPA itself there is a declaration of policy to
protect a broad range of environmental values for the benefit of
"present and future generations of Americans." 12e When a Federal
action challenged under NEPA is said to endanger the atmospheric
conditions on which human life depends or the biological integrity
of the oceans, the threatened injury would appear to affect all
citizens. The Mineral King decision does not seem to foreclose recog-
nizing the right of any responsible citizen or citizens' group to invoke
the protections of Federal law in such cases.
The Government's brief to the Supreme Court in Mineral King
acknowledged that NEPA may confer broader citizen standing than
do the specific statutes involved in that case.127 That argument is sup-
ported by the Court's statement that its ruling "does not insulate
executive action from judicial review." 128
Further decisions will be necessary to clarify the full consequences
of the Mineral King opinion. But already it has banished any doubt
that the environmental interests embodied in Federal statutes, such
as NEPA, stand on a par with economic and other interests before
the Federal courts. When Government action in violation of NEPA
threatens environmental interests, injured citizens are entitled to seek
judicial redress.
review of agency actions
The Congress addressed section 102(2) (C) to the agencies in the
executive branch of the Federal Government. Those agencies must
develop procedures for implementing the 102 process. They must
prepare environmental impact statements, and they must take envi-
ronmental values into account in administering their programs. Fed-
eral law contains basic principles governing the role of the courts
in reviewing whether agencies have complied with such directives.
Those principles, which are summarized in the Administrative Pro-
cedure Act,129 generally tell the courts to decide for themselves any
questions of law passed upon by the agency. The courts may substitute
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3172 LEGAL COMPILATION—GENERAL
their own reading of the law if they believe the agency has erred. The
Federal courts are the ultimate arbiters of questions of Federal law
under the Constitution.
The principles of judicial review, however, prescribe greater defer-
ence when the courts review an agency's determination of fact or its
exercise of discretion in administering a program entrusted to it by
law. "When agency decisions of this type are made without formal
procedures, they can generally be reversed by the courts only if they
are "arbitrary or capricious." When the decisions are required to be
made on the basis of a formal hearing similar to a trial (as described
earlier in this chapter), they must be allowed to stand if supported
by "substantial evidence" in the record compiled by the agency. The
Supreme Court decision in Citizens to Preserve Overton Park v.
Volpe^ discussed in the Council's Second Annual Report, lays the
ground rules for applying these principles in environmental cases.
Recent lower court decisions further clarify how these principles will
be applied under NEPA.
the need for an impact Statement—In deciding Whether a 102 state-
ment is required for a proposed action, an agency has a double duty.
It must interpret the statutory phrase "major Federal actions sig-
nificantly affecting the quality of the human environment," and it
must determine what the environmental effects of its proposed action
will be. The interpretation of the statutory phrase is a question of law.
The assessment of environmental effects is largely a question of fact.
In lawsuits that have challenged agency decisions not to prepare
102 statements, courts have been exercising their responsibility to
determine for themselves the scope of the statutory language. Even
while doing so, the courts have acknowledged their limited role in
reviewing an agency's conclusions about what effects its action will
have. If an agency neglects to consider important environmental
effects, the courts will send the case back to the agency for a new
look—but they do not do the factfinding for the agency.131
The courts therefore have upheld agency decisions that 102 state-
ments were not required, under the circumstances of particular cases,
for a military practice maneuver in Reid State Park in Maine,132 for
Federal approval of a lease of lands held by the Government
in trust for Indians in New Mexico,133 for erecting a Federal
office building to house Corps of Engineers staff in Mobile,
Ala.,134 and for grants to assist construction of a 66-unit apart-
ment project in Los Angeles and a lower income housing
project in Houston.135 They have held that 102 statements were
required for a grant to assist construction of a college high-rise housing
project in Portland, Oreg.,136 for Interstate Commerce Commission
approval of a temporary boost in railroad freight rates,137 for Federal
aid for widening a Wisconsin State highway,138 and for a Soil Con-
servation Service project to channelize 66 miles of Chicod Creek in
North Carolina.139
In the last two decisions, the courts stressed that when an agency's
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GUIDELINES AND REPORTS 3173
decision on the applicability of section 102(2) (C) is challenged in
court,
It is the court which must construe the statutory standards ("major" and
"significantly affecting") and, having construed them, then apply them to the
particular project, and decide whether the agency's failure [to prepare a
statement] violated the congressional command.140
This pronouncement highlights the courts' important role in judging
the scope of the statutory language. Where the language is appli-
cable, section 102(2) (C) does not make the preparation of a state-
ment discretionary; it "is a flat command to [the agency], to the
fullest extent possible, to make a detailed statement." 141 Each deter-
mination of applicability, however, also involves an assessment of the
facts about the particular project. A reading of the courts' opinions
in these two cases indicates that they did not mean to deny that this
basic factfinding job is for the agency, with limited court review. The
opinions in the other cases recognize this traditional principle even
more explicitly.142
the content of an impact statement—The courts have had a great
impact in construing the provisions of section 102(2) (C) which de-
fine what an environmental impact statement must contain. As
described above, the courts have answered important questions about
the agencies' duty to discuss opposing views, to consider all reasonable
alternatives, and to disclose how competing interests have been bal-
anced. However, in this area, too, the courts have been quick to
point out that their role is narrower when they move from constru-
ing the statute to reviewing the content of a particular 102 statement.
On the latter subject, the courts' responsibility is "to determine
whether the agencies involved have fully and in good faith followed
the procedure contemplated by Congress".143
Because preparing an impact statement requires judgment and
skills in a variety of disciplines, the courts have no precise standard
against which to measure an agency's performance. They have ac-
knowledged this by saying that the requirements for the content of
102 statements are subject to a "rule of reason." If a 102 statement
covers each of the matters required by NEPA, a court is left only to
decide whether the discussion is sufficient in depth and detail to
allow the statement to fulfill its purpose—to inform the decision-
makers and the public. The courts are not in a position to second-
guess the judgment of the agency on the details of writing the
statement. As the Court of Appeals for the District of Columbia
observed in NRDC v. Morton:
In this as in other areas, the functions of the courts and agencies, rightly
understood, are not in opposition but in collaboration, toward achievement
of the end prescribed by Congress. So long as the officials and agencies have
taken the "hard look" at environmental consequences mandated by Congress,
the court does not seek to impose unreasonable extremes ....*"
the agency's proposed action—NEPA commands firmly that an
agency must, to the fullest extent possible, take environmental values
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3174 LEGAL COMPILATION—GENERAL
into account. It must also prepare environmental impact statements
for major actions significantly affecting the quality of the human
environment. If an agency fails to do either, it can be ordered to
comply by a court.145 But neither NEPA's substantive duty nor its
102 process purports to dictate the agency's choice of a course of
action in particular situations. The courts have uniformly said that,
after an agency has considered environmental effects, its decision to
act is subject to the limited judicial review afforded by the tradi-
tional arbitrary-or-capricious and substantial-evidence tests.
For example, the Court of Appeals for the District of Columbia
has said that NEPA does not authorize a court "to interject itself
within the area of discretion of the executive as to the choice of the
action to be taken." 14e A court "probably cannot reverse a substan-
tive 'decision on its merits . . . unless it be shown that the actual bal-
ance of costs and benefits that was struck was arbitrary or clearly
gave insufficient weight to environmental values." 147 The Court of
Appeals for the Second Circuit, reviewing the FPC's license for the
controversial Storm King powerplant on the Hudson River, agreed:
The licensing of projects such as the Storm King plant and the evaluation
of their environmental impact has been entrusted to "the informed judgment
of the Commission, and not to the preferences of reviewing courts." l48
The pronouncements of other courts are similar.149
The Supreme Court in Citizens to Preserve Overton Park v.
Volpe 15° explained that the courts' role under the arbitrary-or-
capricious test is to reverse an agency decision -when there has been
a clear error of judgment. The Court said that "this inquiry into the
facts is to be searching and careful . . . [but] the court is not em-
powered to substitute its judgment for that of the agency".151
a new type of case—industry as plaintiff under nepa
Since its enactment, NEPA has provided a basis for environ-
mentalists to urge more attention by Federal agencies to environmen-
tal effects and to challenge in court agency actions not in compliance
with the Act. However, private business groups that either benefit
from Government programs or are subject to Federal regulation are
beginning to seek protection in NEPA as well. They are invoking
section 102(2) (C)'s requirement of careful Federal decisionmaking
as a protection against what they believe to be inadequate considera-
tion of their interests in Federal environmental decisions.
The first decision in a case of this type was National Helium Corp.
v. Mortow.152 In it a company that had contracted to sell helium gas
to the Federal Government challenged the Government's decision to
stop purchasing the gas. The company had an obvious economic
interest in preserving its business relationship with the Government.
However, it sued the Government not on the basis of that interest
but on the ground that, as a member of the public, it would be
harmed by the environmental damage stemming from the Govern-
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GUIDELINES AND REPORTS 3175
merit's decision. The company claimed that if it ceased its operations,
the helium from the gas field in which it was working, said to be the
largest source of helium in the free world, would be irretrievably lost
to the atmosphere. On the basis of this argument, the court held
that canceling the contract was a Federal action on which a 102
statement was required. It enjoined the cancellation pending prep-
aration of a statement. The Department of the Interior has prepared
a draft statement.153
More cases of this type are likely as the Government imposes regu-
lations to protect the environment and companies subject to the
regulations seek to challenge them in court.
In at least three cases, representatives of the cement, chemicals,
and electric power industries have challenged EPA's regulations
limiting air pollution emissions from new industrial plants.154 The
companies argue that the regulations are major Federal actions that
significantly affect the environment; therefore 102 statements are
required. The success of that argument will depend on how the
applicability of the 102 process to EPA's regulatory activities is
resolved. But regardless of how it is resolved, businesses can be
expected to challenge other regulatory actions of the Government.
There is a question in these cases whether the business plaintiff
has standing to challenge a violation of NEPA. NEPA is intended
to protect the quality of life, while the company generally is seeking
to avoid a corporate financial injury unrelated to protection of
environmental values. Federal law generally allows a person to sue
only when the interest he asserts is an interest intended to be
protected by the statute involved.155 Companies may be able to
show in some cases that their financial interests coincide with an
environmental interest protected by NEPA. For example, a com-
pany might argue that strict controls on one kind of pollution, such
as ocean dumping, would force some other means of waste disposal,
leading to further pollution of the air or inland waters instead. When
such a relationship exists, a company may claim to protect environ-
mental values and its own business interests at the same time. It is
too early to judge whether businesses will often succeed in establishing
standing to invoke NEPA in this way.
With both environmental and business groups policing agency per-
formance under section 102(2) (C), it is virtually certain that there
will continue to be a substantial load of litigation under NEPA in the
years ahead. This litigation should continue to exert a strong force
in realizing the purposes of the Act.
conclusions—nepa's accomplishments
In the two and a half years since its enactment, NEPA has gone far
toward fulfilling its promise as one of the major pieces of governmen-
tal reform legislation in decades. It has had at least five clearly bene-
ficial effects on the Federal Government.
First, it is a major step in bringing national policies in line with
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3176 LEGAL COMPILATION—GENERAL
modern concerns for the quality of life. For the first time, maintaining
environmental quality is acknowledged to be "the continuing respon-
sibility of the Federal Government." 15° Each agency has had its
horizon broadened to include not only its own parochial concerns but
also the need to "assure for all Americans safe, healthful, productive,
and esthetically and culturally pleasing surroundings." 157
Second, the 102 process provides a systematic way for the Govern-
ment to deal with complex problems that cut across the responsibili-
ties of several agencies. Many of the modern problems faced by the
Government are inherently complex and are beyond the responsibility
of a single agency. In the past, different agencies have often responded
to these problems in a piecemeal, uncoordinated fashion, largely
because of the lack of a mechanism for shaping comprehensive policy.
By forcing interagency consultation and attention to a broad range
of effects and alternatives, section 102 fosters more sophisticated
Government decisionmaking. The 102 process uncovers the need for
more comprehensive policies and programs in areas such as energy
and transportation. Thus it is a catalyst for more sensible policy
formulation and program development.
Third, the 102 process has opened a broad range of Federal Gov-
ernment activities to public scrutiny and participation for the first
time. Although many agency procedures were formerly closed, the
agencies are now required to explain their decisions when significant
environmental values are concerned. A written study of environ-
mental effects, including an analysis of available alternatives, must be
made available to the President, the Congress, and the public before
an agency acts. The public in turn has an opportunity to evaluate
and comment on the agency's analysis. This new element of public
participation should contribute to more careful and conscientious
decisionmaking.
Fourth, agencies whose personnel have reflected a narrow focus
of concerns are being required now to supplement their staffs with
persons of different backgrounds relevant to environmental issues.
NEPA's required "interdisciplinary approach" means that personnel
must be hired who bring not only new skills but a fresh viewpoint into
the agencies. Over time, this influx should lead to sharper questioning
of traditional assumptions within the agencies. Out of it should
emerge an institutional viewpoint that is more sympathetic to envi-
ronmental values.
Fifth, NEPA's initiatives are enforceable in Federal court by citizen
suit. This keeps each of these requirements from being an empty
exhortation. What NEPA requires of the agencies is often difficult
and uncomfortable. It is only natural that agencies are sometimes
reluctant to question accepted goals and to do the work demanded
by the 102 process. The willingness of citizens to sue to vindicate
NEPA and the vigilance of the courts in enforcing the Act help
to ensure that the agencies take their new tasks seriously.158
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GUIDELINES AND REPORTS 3177
NEPA has had a positive effect on Government decisions, al-
though it is difficult to assess accurately the size of this impact.
The examples already listed of projects and programs improved by
NEPA provide little feel for NEPA's effect on the thousands of other
decisions that make up the agencies' daily workload. The substantial
number of impact statements filed with the Council is a sign that
many agencies are responding to the Act. But the best indication
available at this juncture is probably the subjective impressions of
those who work with the agencies on environmental matters on a
close, daily basis—the Congressional committees that oversee the
Act, the environmental groups, the Council on Environmental Qual-
ity, and the Environmental Protection Agency. For its part, the Coun-
cil's sustained contact with agency actions under NEPA leads it to
believe that desirable changes are in fact underway in the Federal
bureaucracy. There is still much room for improvement. Not all
agencies are successfully identifying actions subject to 102 statements.
Statements are sometimes prepared too late to have a real role in
decisionmaking. Viewpoints and practices are changing more quickly
in some agencies than others. But the Federal Government, at the
deliberate pace characteristic of large institutions, is falling into step
with the Nation's new environmental consciousness expressed in
NEPA.
The General Accounting Office (GAO) recently completed a
review for the House Merchant Marine and Fisheries Committee
of the implementation of the 102 process by seven selected agencies:
the Army Corps of Engineers, the Forest Service, the Soil Conserva-
tion Service, the Department of Housing and Urban Development,
the Federal Aviation Administration, the Federal Highway Admin-
istration, and the Bureau of Reclamation.159 In addition GAO
analyzed the roles of the Council on Environmental Quality, EPA,
and the Office of Management and Budget under the Act and called
for intensified efforts in its enforcement. GAO found that the Gov-
ernment needs to improve its identification of projects needing 102
statements and to inject the preparation of statements earlier in the
decisionmaking process. GAO also recommended that agencies sup-
plement their NEPA procedures to ensure that measures to protect
the environment are actually carried out and to improve other as-
pects of the 102 process. The GAO report will assist the Council and
the agencies in making the 102 process more effective.
By requiring a thorough examination of environmental effects
before the Government commits itself to a new course of action,
NEPA supplies a needed mechanism for technology assessment. New
technologies have been developed and used in the past usually with-
out sufficient advance assessment of the broad range of environmental
changes that they might bring. Now, when technological develop-
ments such as the supersonic transport and the fast-breeder nuclear
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3178 LEGAL COMPILATION—GENERAL
reactor advance beyond research to the development stage, they must
be subjected to searching analysis before implementation. Our abil-
ity to anticipate and thereby to control the environmental effects
of technological change has been enhanced.
These benefits have not been without costs to the Government. The
initial uncertainties about NEPA's meaning have spawned a large
amount of litigation, which is always costly in money and time. As
NEPA principles become clearer, this problem should decline. The
need to study environmental effects and to hire new personnel
carries budgetary costs. These costs may run as high as $65 million
a year when NEPA is fully underway. However, much larger
amounts can be wasted on any one ill-advised Federal project—for
example, the Cross-Florida barge canal had cost $50 million when
the President stopped it and would have cost $130 million more to
complete. Moreover, careful analysis of the effects of Government
action is a logical component of good public administration. Much
of the cost attributed to NEPA is going for studies that should be
performed in any event.
Private investment decisionmaking in many areas also has been
touched by NEPA and the 102 process. Businesses subject to Federal
regulation or which receive Federal funding are having to adjust
to the agencies' new environmental awareness. Private planners for
new power facilities, for federally assisted housing, and for develop-
ment of the resources of Federal lands must now consider the en-
vironmental issues spelled out in section 102(2) (C). The costs to
business have in some instances been substantial.
The States, too, have felt NEPA's impact. States that apply for
Federal funding for projects such as highways, airports, and sewage
treatment plants must anticipate the scrutiny their proposals will
receive from Federal agencies. As a result, they are gathering more
information on the environmental issues surrounding these projects.
NEPA's beneficial effects overlap into the international arena.
Actions of the U.S. Government to which the 102 process applies
often affect the environments of neighboring or even distant coun-
tries. Canada and Mexico are affected by Federal activities near
their borders, and 102 statements must consider effects in those
countries.160 Possible effects on Japan and its environment were
considered in impact statements on the removal of nerve gas from
Okinawa to Johnson Island in the Pacific and the detonation
of the Cannikin underground nuclear test on Amchitka Island in
the Aleutian chain.161 Moreover, the growing number of completed
102 statements provides an information source on a broad range of
environmental issues that is freely available to other nations.
The success of the 102 process has prompted a committee of the
National Academy of Sciences to suggest that the United Nations
consider adopting a similar process to evaluate the environmental
impacts of the actions of the U.N.'s specialized agencies. The inter-
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GUIDELINES AND REPORTS 3179
national "102 statements" would be furnished to the new U.N. en-
vironmental agency recommended by the 1972 U.N. Conference on
the Human Environment in Stockholm.162
The experiment in governmental reform begun by NEPA's pas-
sage is having steadily more wide-ranging ramifications. The Act's
accomplishments to date are impressive. And there is every indica-
tion that its usefulness will increase in the coming years.
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3180 LEGAL COMPILATION—GENERAL
footnotes
1. H.R. 6750, 91st Cong., 1st Sess. (1969).
2. S. 1075, 91st Cong., 1st Sess. (1969).
3. See 115 Cong. Rec. 19008-13 (July 10, 1969) (Senate passage) ; id. at
26568-91 (Sept. 23, 1969) (House passage); id. at 39701-04 (Dec.
17,1969) (conference report).
4. The full text of NEPA appears in Appendix B.
5. See S. Rep. No. 91-296, 91st Cong., 1st Sess. 10-12 (July 9, 1969) ;
H.R. Rep. No. 91-378, 91st Cong., 1st Sess. 2-3 (July 11, 1969).
6. "America the Beautiful", An Address by Russell E. Train, President,
Conservation Foundation, Before the 90th Annual Meeting of the Amer-
ican Forestry Association Held Jointly with the National Council of
State Garden Clubs, Jackson Lake Lodge, Grand Teton National Park,
Wyoming, Sept. 6, 1965 (reprinted by Conservation Foundation) ; see
Terence T. Finn, Unpublished Doctoral Dissertation on NEPA Sub-
mitted to the Department of Government, Georgetown University
(1972).
7. P.L. 304, ch. 33, 60 Stat. 23 (Feb. 20, 1946), as amended, 15 U.S.C.
§§ 1021-24.
8. 15 U.S.C. § 1021.
9. See 15 U.S.C. §§ 1022,1023.
10. See, e.g., Baldwin, "The Santa Barbara Oil Spill," in Law and the
Environment, p. 5 (M. Baldwin & J. Page eds. 1970) ; J. Sax, Defending
the Environment—A Strategy for Citizen Action, pp. 240—42 (1971).
11. S. Rep. No. 91-296, 91st Cong., 1st Sess. 8 (July 9, 1969).
12. E.g., Hearings on S. 1075, S. 237, and S. 1752 Before the Committee on
Interior and Insular Affairs, United States Senate 112-35 (April 16,
1969) (Testimony of Prof. Lynton K. Caldwell).
13. 115 Cong. Rec. 19008-13.
14. 115 Cong. Rec. 26568-91.
15. 115 Cong. Rec. 29046-63, 29066-89.
16. 115 Cong. Rec. 40415-27 (Dec. 20, 1969); id. at 40923-28 (Dec. 23,
1969).
17. 16 U.S.C. §803(a).
18. 354 F.2d 608, 620, 1 ERG 1084, 1092-93, 1 ELR 20292, 20296-97
(2d Cir.), cert, denied, 384 U.S. 941 (1965).
19. Id. at 620, 1 ERG at 1093, 1 ELR at 20297.
20. 387 U.S. 428, 1 ERG 1069, 1 ELR 20117 (1967).
21. 49 U.S.C. § 1653(f). See also Department of Transportation Act
§2(b)(2),49U.S.C.§1651(b)(2).
22. 16 U.S.C. §661 etseq.
23. 16 U.S.C. §470et seq.
24. See, e.g., Environmental Defense Fund \. Corps of Engineers, 325 F.
Supp. 728, 739, 2 ERG 1260, 1263, 1 ELR 20130, 20134 (E.D. Ark.
1971).
25. See NEPA §§ 101(a), (b), 42 U.S.C. §§ 4331(a), (b).
26. See NEPA §102(1), 42 U.S.C. §4332(1); 115 Cong. Rec. 39703
(Dec. 17, 1969) (conference report) ; id. at 40418 (statement by Sen-
ator Jackson). See also Ely v. Velde, 451 F.2d 1130, 3 ERG 1280, 1
ELR 20612 (4th Cir. 1971); Calvert Cliff's Coordinating Committee
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GUIDELINES AND REPORTS 3181
v. AEC, 449 F.2d 1109, 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 1971);
Peterson, "An Analysis of Title I of the National Environmental Policy
Act of 1969", 1 ELR 50035 (1971).
27. NEPA §§ 102(2) (B), 103, 105, 42 U.S.C. §§ 4332(2) (B), 4333, 4335.
28. See, e.g., Zabel v. Tabb, 430 F.2d 199, 1 ERC 1449, 1 ELR 20023 (5th
Cir. 1970) ; Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d
1109, 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 1971); Natural Resources
Defense Council v. Morton, 3 ERC 1558, 2 ELR 20029 (D.C. Cir. 1972).
29. Zabel v. Tabb, supra note 28.
30. Department of Transportation, Environmental Impact Statement, Toll
Bridge/San Francisco Bay from India Basin, San Francisco to Bay Farm
Island and Alameda, Calif. (Draft, Jan. 10, 1971).
31. See Students Challenging Regulatory Agency Procedures v. ICC (D.D.C.
July 10, 1972), stay pending appeal denied (Sup. Ct. July 19, 1972) ;
Ex Parte Nos. 265 and 267, Increased Freight Rates, 1970 and 1971,
339 I.C.C. 125, 209 (1971); 37 Fed. Reg. 5202 (March 10, 1972).
See generally 37 Fed. Reg. 6318 (March 28, 1972) (ICC NEPA
procedures); Port of New York Authority v. United States, 451 F.2d
783, 3 ERC 1691, 2 ELR 20105 (2d Cir. 1971); City of New York
v. United States, 337 F. Supp. 150, 3 ERC 1570, 2 ELR 20275 (E.D.
N.Y. 1972).
32. Compare New Hampshire v. AEC, 406 F.2d 170, 1 ERC 1053 (1st
Cir.), cert, denied, 395 U.S. 962 (1969), with Calvert Cliffs' Co-
ordinating Committee v. AEC, 449 F.2d 1109, 2 ERC 1779, 1 ELR
20346 (D.C. Cir. 1971).
33. Statement by the President Terminating Construction of the Cross-
Florida Barge Canal (Jan. 19, 1971), reprinted in 7 Presidential Docu-
mentsQl (Jan. 25, 1971).
34. Public Statement by Russell E. Train, Chairman, Council on Environ-
mental Quality, and Kenneth E. BeLieu, Under Secretary, Department
of the Army, "Recommendation for Future of the Oklawaha River Basin
of the Cross-Florida Barge Canal Project" (May 18, 1972).
35. See note 30 supra; New York Times, Section 1, p. 64, col. 6 (June 11,
1972).
36. Department of Transportation, Environmental Impact Statement, Geor-
gia, Cobb County 1-75-3(2) 291 P.E. and 1-75-3(3) 270 P.E. (Final,
March 29, 1972).
37. Department of Transportation, Environmental Impact Statement, Fair-
fax County Airport Site (Draft, Jan. 7, 1971).
38. General Services Administration, Environmental Impact Statement, Dis-
posal of Portion of Fort Snelling Hospital Reservation, Saint Paul,
Minn. (Final, Aug. 20, 1971).
39. Department of Housing and Urban Development, Environmental Impact
Statement, Proposed Park Forest South New Community, Will County,
111. (Final, March 23, 1971).
40. Department of the Interior, Public Statement (Sept. 20, 1971).
41. Department of the Interior, Environmental Impact Statement, 1971
Outer Continental Shelf Oil and Gas Drainage Lease Sale—Offshore
Louisiana, pp. 28-34, 36 (Final, Sept. 7, 1971); Department of the
Interior, Public Statement (Nov. 22, 1971).
42. Forest Service, Emergency Directive No. 1 (Nov. 9, 1971), reprinted in
Title 2100, Forest Service Manual.
43. See 33 C.F.R. §§ 209.120, 209.130, 209.150; Corps of Engineers Reg-
ulation 1145-2-303, Change 5 (April 23, 1970).
44. See 10 C.F.R. Part 50, Appendix D, as amended, 37 Fed. Reg. 9779
(May 17, 1972). See also 37 Fed. Reg. 10013 (May 18, 1972).
45. See Executive Order 11574 (Dec. 23, 1970); Executive Order 11644
(Feb. 8, 1972) ; Executive Order 11643 (Feb. 8, 1972).
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3182 LEGAL COMPILATION—GENERAL
46. See, e.g., H. Friendly, Benchmarks, pp. 86-154 (1967), and authorities
there cited.
47. Calvert Cliffs' Coordinating Committee v. AEC, 449 F. 2d 1109, 1113, 2
ERG 1779,1781,1 ELR 20346, 20348 (D.C. Cir. 1971).
48. 36 Fed. Reg. 13722 (July 23, 1971) (Interior Department proposed
rules for exploitation of geothermal steam resources). See also, e.g., De-
partment of Housing and Urban Development, Departmental Circular
No. 1390.2, "Noise Abatement and Control: Departmental Policy, Im-
plementation Responsibilities, and Standards" (Aug. 4, 1971).
49. 499 F. 2d 1109, 2 ERG 1779, 1 ELR 20346 (D.C. Cir. 1971).
50. 33U.S.C. U51, as amended by P.L. 91-224, 84 Stat. 91 (April 3, 1970).
51. See 115 Cong. Rec. 29046-63 (Senate consideration of Water Quality
Improvement Act of 1970); id. at 29066-89 (Senate discussion of
position in conference committee on NEPA) ; id. at 40923-28 (House
debate on conference report on NEPA); 116 Cong. Rec. 8984 (Senate
debate on conference report on Water Quality Improvement Act). See
also Comment, 1 ELR 10125, 10127 (1971).
52. Calvert Cliffs' Coordinating Committee v. AEC, 449 F. 2d 1109, 1123,
2 ERG 1779, 1788, 1 ELR 20346, 20353 (D.C. Cir. 1971).
53. See S. 2770, §511(d) (as passed by Senate), §511(c) (as passed by
House), 92d Cong., 2d Sess.; 117 Cong. Rec. S17456 (Daily Ed. Nov. 2,
1971).
54. 42 U.S.C. §4331 (a).
55. 42 U.S.C. §4344(4).
56. Executive Order 11514, § 3(a) (March 5, 1970), reprinted in 35 Fed.
Reg. 4247 (March 7, 1970).
57. Message from the President of the United States Transmitting a Program
to Save and Enhance the Environment, H.R. Doc. No. 92-46, 92d
Cong., 1st Sess. (Feb. 8, 1971); Message from the President of the
United States Transmitting a Program for Environmental Protection,
H.R. Doc. No. 92-247, 92d Cong., 2d Sess. (Feb. 8, 1972).
58. Council on Environmental Quality, Guidelines for Statements on Pro-
posed Actions Affecting the Environment, 36 Fed. Reg. 7724 (April 23,
1971) (hereinafter cited as Guidelines). The full text of the Guide-
lines appears in Appendix H.
59. See, e.g., Council on Environmental Quality, "Memorandum for Agency
and General Counsel Liaison on National Environmental Policy Act
(NEPA) Matters" (May 16, 1972), reprinted in 3 Env. Rep. 82
(May 19, 1972).
60. See, e.g., Environmental Defense Fund v. Corps of Engineers, 325 F.
Supp. 728, 749, 2 ERC 1260, 1 ELR 20130 (E. D. Ark. 1971); Environ-
mental Defense Fund v. TV A, 339 F. Supp. 806, 3 ERC 1553, 2 ELR
20044 (E.D. Tenn. 1972). See generally Udall v. Tollman, 380 U.S.
1,16 (1965).
61. 42 U.S.C. § 4332(2) (C).
62. See cases cited in notes 131-139 infra, particularly Natural Resources
Defense Council v. Grant, 3 ERC 1883, 2 ELR 20185 (E.D. N.C.
1972).
63. Guidelines, supra note 58, § 5, 36 Fed. Reg. 7724.
64. See 36 Fed. Reg. 23666 (Dec. 11, 1971). The full texts of these
procedures are published and kept up-to-date in 1 ELR 46001 et seq.
65. See, e.g., Hanly v. Mitchell, 4 ERC 1153, 1155, 2 ELR 20216, 20218
(2d Cir. 1972), rev'g in part — ERC , 2 ELR 20181 (S.D. N.Y.
1972).
66. See, e.g., Department of Transportation Order DOT 5610.1 A, § 8a
(Oct. 4, 1971); Hanly v. Mitchell, supra note 65. See also Citizens
to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971).
67. See, e.g., Pennsylvania Environmental Council v. Bartlett, 315 F. Supp.
238, 1 ERC 1271 (M.D. Pa. 1970), aff'd, 454 F.2d 613, 3 ERC
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GUIDELINES AND REPORTS 3183
1421, 1 ELR 20622 (3d Cir. 1971); Arlington Coalition on Trans-
portation v. Volpe, 332 F. Supp. 1218, 3 ERG 1138, 1 ELR 20486
(E.D. Va. 1971), rev'd, 3 ERG 1995, 2 ELR 20162 (4th Cir. 1972) ;
Brooks v. Volpe, 319 F. Supp. 90, 329 F. Supp. 118, 2 ERG 1004,
1571, 1 ELR 20045, 20286 (W.D. Wash. 1970, 1971), rev'd, 3 ERG
1858, 2 ELR 20139 (9th Cir. 1972); Elliott v. Volpe, 328 F. Supp.
831, 2 ERG 1498, 1 ELR 20243 (D. Mass. 1971). Cf. Investment
Syndicates, Inc. v. Richmond, 318 F. Supp. 1038, 1 ERG 1713, 1
ELR 20044 (D. Ore. 1970); Citizens to Preserve Overton Park v.
Volpe, 335 F. Supp. 873, 3 ERG 1510, 2 ELR 20061 (W.D. Tenn.
1972). See also Comment, 1 ELR 10113, 10115 (1971); Peterson,
supra note 26, at 50048.
68. See, e.g., Arlington Coalition on Transportation v. Volpe, 3 ERC 1995,
2 ELR 20162 (4th Cir. 1972); Brooks v. Volpe, 3 ERC 1858, 2
ELR 20139 (9th Cir. 1972); Lathan v. Volpe, 455 F.2d 1111, 3
ERC 1362, 1 ELR 20602 (9th Cir. 1971); Environmental Defense
Fund v. Corps of Engineers, 324 F. Supp. 878, 329 F. Supp. 543,
2 ERC 1173, 1797, 1 ELR 20079, 20366 (D. D.C. 1971); Environ-
mental Defense Fund v. TV A, 339 F. Supp. 806, 3 ERC 1553, 2 ELR
20044 (E.D. Tenn. 1972); Harrisburg Coalition Against Ruining the
Environment v. Volpe, 330 F. Supp. 918, 2 ERC 1671, 1 ELR 20237
(M.D. Pa. 1971); Morningside-Lenox Park Assn. v. Volpe, 334 F. Supp.
132, 3 ERC 1327, 1 ELR 20629 (N.D. Ga. 1971); Sierra Club v. Laird,
1 ELR 20085 (D. Ariz. 1970); Texas Committee v. United States, 1
ERC 1303 (W.D. Tex. 1970), dismissed as moot, 430 F.2d 1315 (5th
Cir. 1970) ; Willamette Heights Neighborhood Assn. v. Volpe, 334 F.
Supp. 990, 3 ERC 1520, 2 ELR 20043 (D. Ore. 1971); Nolop v. Volpe,
333 F. Supp. 1364, 3 ERC 1338, 1 ELR 20617 (D. S.D. 1971); Conser-
vation Society v. Volpe, 4 ERC 1226, 2 ELR 20270 (D. Vt, 1972). But
cf. Jicarilla Apache Tribe v. Morton, 3 ERC 1919, — ELR — (D. Ariz.
1972).
69. See Izaak Walton League v. Schlesinger, 337 F. Supp. 287, 3 ERC 1453,
2 ELR 20040 (D. D.C. 1971).
70. H.R. 13752 (passed by the House April 17, 1972).
71. See generally Comment, 2 ELR 10038 (April 1972); Comment, 2
ELR 10025 (March 1972).
72. Department of the Interior, Environmental Impact Statement, "Proto-
type" Oil Shale Leasing Program for the States of Colorado, Utah,
and Wyoming (Draft, July 1, 1971); Department of the Interior, En-
vironmental Impact Statement, Geothermal Leasing Program (Draft,
Oct. 6, 1971; Supplemental Draft, May 8, 1971).
73. Guidelines, supra note 58, § 5(b), 36 Fed. Reg. 7724-25.
74. Cf. National Resources Defense Council v. Morton, 3 ERC 1558, 2 ELR
20029 (D.C. Cir. 1972); Upper Pecos Assn. v. Stans, 328 F. Supp. 332,
2 ERC 1614, 1 ELR 20228 (D. N.M. 1971), aff'd, 452 F.2d 1233, 3
ERC 1418, 2 ELR 20085 (10th Cir. 1971), cert, granted, 40 U.S.L.W.
3556 (May 22, 1972).
75. Natural Resources Defense Council v. Morton, supra note 74, 3 ERC
1562, 2 ELR 20033, discussed in Comment, 2 ELR 10038 (April 1972).
76. Atomic Energy Commission, Environmental Impact Statement, Liquid
Metal Fast Breeder Reactor Demonstration Plant (Final, April 14,
1972). See also, e.g., Department of the Interior, Environmental Impact
Statement, Geothermal Leasing Program (Draft, Oct. 6, 1971; Supple-
mental Draft, May 8, 1971).
77. Arizona, California, Delaware, Hawaii, Indiana, Montana, New
Mexico, North Carolina, Washington, and Wisconsin.
78. NEPA § 102(2) (C), 42 U.S.C. § 4332(2) (C).
79. Guidelines, supra note 58, §6(a)(vii), 10(b), 36 Fed. Reg. 7725-26.
80. Id., § 10(d), 36 Fed. Reg. 7726.
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3184 LEGAL COMPILATION—GENERAL
81. 42 U.S.C. § 1857H-7. See the extensive Comment on § 309 in 1 ELR
10146 (1971).
82. Natural Resources Defense Council \. Morton, 3 ERG 1623, 2 ELR
20071 (D. D.C. 1972).
83. 115 Cong. Rec. 40418 (Dec. 20, 1969).
84. See 115 Cong. Rec. 40423, 40425 (Dec. 20, 1969) (statement of Senator
Muskie) ; 115 Cong. Rec. 40925, 40927-28 (Dec. 23, 1969) (state-
ments of Representatives Dingell and Harsha).
85. 115 Cong. Rec. 40418 (Dec. 20, 1969).
86. Guidelines, supra note 58, § 5(d), 36 Fed. Reg. 7725.
87. Kalur v. Resor, 335 F. Supp. 1, 3 ERC 1458, 1 ELR 20637 (D. D.C.
1971) ; Sierra Club v. Sargent, 3 ERC 1905, 2 ELR 20131 (W.D. Wash.
1972). Both decisions have been appealed. Compare Businessmen for the
Public Interest v. Resor, 3 ERC 1216 (N.D. 111. 1971).
88. See notes 152—53 infra and accompanying text.
89. See Statement of William D. Ruckelshaus, Administrator, Environmental
Protection Agency, Before the Senate Committees on Public Works and
Interior and Insular Affairs (March 9, 1972) ; Statement of Russell E.
Train, Chairman, Council on Environmental Quality, Before the House
Subcommittee on Fisheries and Wildlife Conservation (March 22, 1972)
(testimony on H.R. 13752).
90. See 118 Cong. Rec. H2577-78 (Daily Ed. March 27, 1972) (introduc-
tion of H.R. 14103) ; id. at S9809 (Daily Ed. June 21, 1972) (intro-
duction of S. 3733); Statement of Timothy Atkeson, General Coun-
sel, Council on Environmental Quality, Before the House Subcommit-
tee on Fisheries and Wildlife Conservation (May 2, 1972).
91. See, e.g., Atomic Energy Act § 189, as amended, 42 U.S.C. § 2239.
92. Administrative Procedure Act §§ 1-9, as amended, 5 U.S.C. §§ 551-59.
93. 455 F. 2d 412, 3 ERC 1595, 2 ELR 20017 (2d Cir. 1972), petition for
cert, filed, 40 U.S.L.W. 3589 (No. 71-1597, June 6, 1972). See also
Students Challenging Regulatory Agency Procedures v. ICC (D. D.C.
July 10, 1972), stay pending appeal denied (Sup. Ct. July 19, 1972).
94. Id. at 420, 421, 422, 3 ERC at 1599, 1601, 2 ELR at 20020, 20021
(emphasis in original).
95. Id.; see Comment, 1 ELR 10022, 10027 (1971).
96. 42 U.S.C. §4332(2)(C).
97. See, e.g., Environmental Defense Fund v. Corps of Engineers, 325 F.
Supp. 728, 749, 2 ERC 1260, 1 ELR 20130 (E.D. Ark. 1971) ; Environ-
mental Defense Fund v. Hardin, 325 F. Supp. 1401, 2 ERC 1425, 1 ELR
20207 (D. D.C. 1971).
98. Environmental Defense Fund v. Corps of Engineers, supra note 97, 325
F. Supp. at 759, 2 ERC at 1267, 1 ELR at 20141 (emphasis in original).
99. 3 ERC 1126, 1 ELR 20469 (D.C. Cir. 1971). Subsequent opinions in
the same case are reported at 3 ERC 1210, 1256, 1 ELR 20529, 20532
(D.C. Cir. 1971); 404 U.S. 917, 3 ERC 1276, 1 ELR 20534 (1971).
See also Comment, 1 ELR 10161 (1971).
100. 3 ERC at 1128, 1129, 1 ELR at 20470 (emphasis in original).
101. 3 ERC 1558, 2 ELR 20029 (D.C. Cir. 1972), discussed in Comment, 2
ELR 10038 (April 1972).
102. 3 ERC at 1561, 2 ELR at 20032, quoting 115 Cong. Rec. 40420
(Dec. 20, 1969) (explanation by Senator Jackson of bill as approved by
conference committee).
103. 42 U.S.C. § 4332(2) (D), quoted in 3 ERC at 1561, 2 ELR at 20032.
104. 3 ERC at 1561 n. 12, 2 ELR at 20032 n. 12, quoting Guidelines, supra
note 58, 6(a) (iv), 36 Fed. Reg. 7725.
105. 3 ERC at 1561, 2 ELR at 20032.
106. 3 ERC at 1563, 2 ELR at 20033.
107. 3 ERC at 1558, 1564, 2 ELR at 20029, 20034.
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GUIDELINES AND REPORTS 3185
108. 42 U.S.C. §4332(2)(B).
109. 115 Cong. Rec. 29055 (Oct. 8, 1969) (explanation of position to be
taken by Senate conferees in conference committee.)
110. Calvert Cliffs' Coordinating Committee v. AEC, 449 F. 2d 1109, 1113-
14, 2 ERG 1779, 1781-82, 1 ELR 20346, 20348 (D.C. Cir. 1971).
See also Comment, 2 ELR 10003 (Jan. 1972).
111. 3 ERG 1558, 1561, 2 ELR 20029, 20032 (D.C. Cir. 1972).
112. Id.
113. NEPA§ 102(2) (C), 42 U.S.C. § 4332(2) (C).
114. Guidelines, supra note 58, § 10(b), 36 Fed. Reg. 7726.
115. NEPA § 102(2) (C), 42 U.S.C. § 4332(2) (C).
116. Executive Order 11514, § 3 (h) (March 5, 1970).
117. Calvert Cliffs' Coordinating Committee \. AEC, 449 F. 2d 1109, 1112,
2 ERG 1779, 1780, 1 ELR 20346, 20347 (D.C. Cir. 1971).
118. Council on Environmental Quality, Environmental Quality: Second
Annual Report, pp. 155-58, 163-70 (1971).
119. E.g., National Helium Corp. v. Morton, 455 F. 2d 650, 3 ERG 1129, 1
ELR 20478 (10th Cir. 1971), aff'g 326 F. Supp. 151, 2 ERG 1372,
1 ELR 20157 (D. Kan. 1971); Natural Resources Defense Council
v. Grant, 3 ERG 1883, 2 ELR 20185 (E.D. N.C. 1972).
120. 40 U.S.L.W. 4397, 3 ERG 2039, 2 ELR 20192 (1972).
121. See statutes cited in 40 U.S.L.W. at 4398 n. 2, 3 ERC at 2040 n. 2, 2
ELR at 20193 n. 2.
122. 40 U.S.L.W. at 4399-400, 3 ERC at 2042, 2 ELR at 20194.
123. Id.
124. Id. at 4401, 3 ERC at 2044, 2 ELR at 20195.
125. See, e.g., Endangered Species Conservation Act of 1969, 16 U.S.C.
§§ 668aa to 668cc-5; Bald Eagle Protection Act, as amended, 16 U.S.C.
§§668, 668a-668d.
126. NEPA§ 101 (a), 42 U.S.C. §4331 (a).
127. Brief for the United States at 29-30, Sierra Club v. Morton (U.S.
Supp. Ct., No. 70-34).
128. 40 U.S.L.W. at 4401, 3 ERC at 2044, 2 ELR at 20195; see Comment,
2 ELR 10034 (April 1972). See also Environmental Defense Fund v.
EPA, 2 ELR 20228 n. 1 (D.C. Cir. 1972).
129. See 5 U.S.C. § 706.
130. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971),
discussed in Council on Environmental Quality, Environmental
Quality: Second Annual Report, supra note 118, pp. 158, 168-69.
131. Hanly v. Mitchell, — ERC , 2 ELR 20181 (S.D. N.Y.) rev'd
in part and remanded, 4 ERC 1153, 2 ELR 20216 (2d Cir. 1972).
132. Citizens for Reid State Park v. Laird, 336 F. Supp. 783, 3 ERC 1580,
2 ELR 20122 (D.Me. 1972).
133. Davis v. Morton, 335 F. Supp. 1258, 3 ERC 1546, 2 ELR 20003 (D.
N. Mex. 1971).
134. Save Our Ten Acres v. Kreger, — ERC , — ELR (S.D.
Ala. 1972).
135. Echo Park Residents Comm. v. Romney, 3 ERC 1255, — ELR
(C.D. Cal. 1971); Hiram Clarke Civic Club v. Romney, — ERC ,
_ELR (S.D.Tex. 1971).
136. Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 3 ERC
1087, 1 ELR 20492 (D. Ore. 1971).
137. Students Challenging Regulatory Agency Procedures v. ICC (D. D.C.
July 10, 1972), stay pending appeal denied (Sup. Ct. July 19, 1972).
138. Scherr v. Volpe, 336 F. Supp. 882, 886, 3 ERC 1586. 1588, 2 ELR
20068, 20069 (W.D. Wis. 1971).
139. Natural Resources Defense Council v. Grant, 3 ERC 1883, 2 ELR 20185
(E.D. N.C. 1972).
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3186 LEGAL COMPILATION—GENERAL
140. Scherr v. Volpe, 336 F. Supp. 882, 888, 3 ERG 1586, 1590, 2 ELR
20068, 20070 (W.D. Wis. 1971); see Natural Resources Defense Coun-
cil v. Grant, supra note 139, at 1890, 2 ELR at 20189.
141. Scherr v. Volpe, supra note 140, at 888, 3 ERG at 1590, 2 ELR at
20070.
142. See, e.g., Citizens for Reid State Park v. Laird, 336 F. Supp. 783, 789,
3 ERG 1580, 1584, 2 ELR 20122, 20125 (D. Me. 1972); Save Our
Ten Acres v. Kreger, — ERG , — ELR (S.D. Ala. 1972) ;
Goose Hollow Foothills League v. Romney, 334 F. Supp. 877, 3 ERG
1087, 1 ELR 20492 (D. Ore. 1971); Hanly v. Mitchell, — ERG , 2
ELR 20181 (S.D. N.Y.), rev'd in part and remanded, 4 ERG 1153, 2
ELR 20216 (2d Cir. 1972); Echo Park Residents Comm. v. Romney, 3
ERG 1255, — ELR (C.D. Gal. 1971).
143. Committee for Nuclear Responsibility v. Seaborg, 3 ERG 1126, 1128,
1 ELR 20469, 20470 (B.C. Cir. 1971). See Environmental Defense
Fund v. Corps of Engineers, 4 ERG 1097, — ELR (E.D. Ark.
1972).
144. Natural Resources Defense Council v. Morton, 3 ERG 1558, 1564, 2
ELR 20029, 20034 (D.C. Cir. 1972).
145. E.g., Calvert Cliffs' Coordinating Committee v. AEC, 449 F. 2d 1109,
1115, 2 ERG 1779, 1783, 1 ELR 20346, 20349 (D.C. Cir. 1971).
146. Natural Resources Defense Council v. Morton, 3 ERG 1558, 1564, 2
ELR 20029, 20034 (D.C. Cir. 1972).
147. Calvert Cliffs' Coordinating Committee v. AEC, 449 F. 2d. 1109, 1115,
2 ERG 1779, 1783,1 ELR 20346, 20349 (D.C. Cir. 1971).
148. Scenic Hudson Preservation Conference v. FPC, 453 F. 2d 463, 467, 3
ERG 1232, 1235, 1 ELR 20496, 20498 (2d Cir. 1971), cert, denied,
40 U.S.L.W. 3599 (June 19,1972).
149. E.g., Environmental Defense Fund v. Corps of Engineers, 1 ERG 1260,
1261, 1 ELR 20130, 20138 (E.D. Ark. 1971); Hanly v. Mitchell, 4
ERG 1153, 2 ELR 20126 (2d Cir.), rev'g in part — ERC , 2 ELR
20181 (S.D. N.Y. 1972). See also S. Rep. No. 91-296, 91st Cong., 1st
Sess. 20 (1969).
150. 401 U.S. 402, 2 ERC 1250, 1 ELR 20110 (1971).
151. 401 U.S. at 416, 2 ERG at 1256, 1 ELR at 20113-14. See also Environ-
mental Defense Fund v. Ruckelshaus, 439 F. 2d 584, 2 ERC 1114, 1
ELR 20059 (D.C. Cir. 1971).
152. 326 F. Supp. 151, 2 ERC 1372, 1 ELR 20157 (D. Kan. 1971), aff'd,
455 F. 2d 650, 3 ERC 1129, 1 ELR 20478 (10th Cir. 1971).
153. Department of the Interior, Environmental Impact Statement, Termina-
tion of Helium Purchase Contracts with National Helium Corp., Cities
Services Helex, Inc., and Phillips Petroleum Co. (Draft, May 19, 1972).
154. Essex Chemical Corp. v. EPA (D.C. Cir. No. 72-1072, filed Jan. 21,
1972); Portland Cement Assn. v. EPA (D.C. Cir. No. 72-1073, filed
Jan. 21, 1972); Appalachian Power Co. v. EPA (D.C. Cir. No. 72-1079,
filed Jan. 24,1972).
155. See Association of Data Processing Service Organizations v. Camp, 397
U.S. 150 (1970); Sierra Club v. Morton, 40 U.S.L.W. 4397, 4399,
3 ERC 2039, 2041, 2 ELR 20192, 20193-94 (1972); Zlotnick v. Re-
development Land Agency, 2 ELR 20235 (D.D.C. 1972). Cf. Pizitz
v. Kotye,4ERC1195 (M.D.Ala. 1972).
156. NEPA§ 101(b),42U.S.C. §4331(b).
157. NEPA§ 101(b)(2),42U.S.C.§4331(b)(2).
158. See also Statement of Roger C. Cramton, Chairman, Administrative
Conference of the United States, Before the Committees on Public
Works and Interior and Insular Affairs (March 7, 1972).
159. Comptroller General of the United States, Report to the Subcommittee
on Fisheries and Wildlife Conservation, Committee on Merchant Marine
and Fisheries, House of Representatives, "Improvements Needed in
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GUIDELINES AND REPORTS 3187
Federal Efforts to Implement the National Environmental Policy Act
of 1969" (May 18, 1972).
160. See, e.g., Department of the Interior, Environmental Impact Statement,
Trans-Alaska Pipeline, Alaska (Final, March 20, 1972); International
Boundary and Water Commission, Environmental Impact Statement,
Emergency Delivery of Colorado River Water to Tijuana, Baja Cali-
fornia, Mexico via Facilities in California (Final, June 12, 1972). See
also Wilderness Society v. Morton, 4 ERG 1101, — ELR — (D.C.
Cir. 1972) (Canadian citizen and group permitted to intervene to chal-
lenge adequacy of consideration in 102 statement of effects on Canadian
environment).
161. Department of Defense, Environmental Impact Statement, Operation
"Red Hat" (Final, Dec. 31, 1970); Atomic Energy Commission, En-
vironmental Impact Statement, Cannikin-Underground Nuclear Test
(Final, June 23, 1971).
162. National Academy of Sciences, Institutional Arrangements for Inter-
national Environmental Cooperation,pp. 30-31 (1972).
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1
Ir • ,-,i
it -'-
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GUIDELINES AND REPORTS 3189
the costs and
economic impacts
of environmental
improvement
Expenditures to improve environmental quality are an investment
in the quality of life. As with similar investments in education, the
results are not immediately visible as profits or growth in the Gross
National Product. Nevertheless, these investments can reap great
dividends.
Like any reallocation of resources, the investment to achieve en-
vironmental quality will bring about short-run adverse impacts, i.e.,
higher prices, temporary unemployment, and plant dislocations.
Matched against these negative results are the investment's dividends,
such as decreased health bills, increased recreational opportunities,
diminished damage to materials, and better maintenance of the eco-
logical balance necessary for human survival.
Last year, the Council's Annual Report contained a comprehen-
sive chapter on "The Economy and the Environment." It sketched
a preliminary assessment of the costs of environmental improvement.
It reviewed the benefits achievable from an improved environment
and discussed alternative economic policy strategies for achieving
them.
There had been no detailed analyses on the impact of environ-
mental control costs at the time of the Council's initial discussion of
the economics of environmental quality last year. Yet on the basis of
its preliminary assessment, the Council concluded that benefits of
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3190 LEGAL COMPILATION—GENERAL
environmental protection would exceed the admittedly substantial
costs. The Council also felt that although some older and smaller
firms might be forced to shut down, with associated local dislocations,
the economic impact of these pollution control costs on overall
national economic growth, employment, and prices would not be
severe.
In 1971, the Council, together with the Environmental Protection
Agency and the Department of Commerce, undertook a series of
studies of pollution control costs and their impact on the economy.
TKese economic impact studies support the Council's initial judg-
ments. The studies, based on current air and water pollution stand-
ards, found that the impact of those pollution control costs that
were estimated and examined would not be severe in that they
would not seriously threaten the long-run economic viability of the
industrial activities examined. However, the estimated impact is not
inconsequential in that there are likely to be measurable impacts both
on the economy as a whole and on individual industries.
The studies indicate that some firms will earn lower profits, some
will curtail production, and other firms and plants will be forced
to close. The studies go on to note, however, that most of the firms
or plants that will be forced to close are currently marginal operations
that were already in economic jeopardy due to other competitive
factors. In these instances, the impact of the environmental standards
is to accelerate such closings.
Because of limited, data on the ways in which pollution
control requirements will affect industrial activity, none of the studies
can be considered definitive presentations of total impact on the
industrial activities examined or on the economy. However, it is
reasonable to believe that the relative relationship of postulated stand-
ards and pollution abatement cost consequences is at least indicative
of the nature and order of magnitude of the economic impacts.
Although these studies focused on adverse economic impacts, it
should be noted that there will be positive economic impacts as
well. Examples of positive impacts not addressed bv the micro-
economic studies are increased profits and employment in industries
producing pollution abatement equipment and services and rela-
tively low polluting products; and increases in sales and market shares
by firms that are more efficient in the use of environmental resources.
Relating these economic benefits to the transitional dislocations is
difficult. For example, pollution abatement requirements may cause
sales and employment to rise in one industry while they decline in
another, but the employees laid off in the declining industry are
not likely to be reemployed immediately in the other, because of
geographic or skill factors.
This year, the Council also has expanded its estimates of control
costs to include some areas where standards are not now authorized
or promulgated but are likely in the near future. Because of new
information on costs and the recently completed studies on impacts,
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GUIDELINES AND REPORTS 3191
the Council decided to focus solely on the costs of environmental
improvement and the impact of those costs.
Although the chapter does not explicitly deal with benefits of
reducing environmental damages, clearly they are critical to our
decisions on what level of environmental quality should be attained.
Existing evidence indicates that, in the aggregate, the benefits from
current environmental programs are measurably greater than the
costs. Nevertheless, it is important to develop better data to allow
assessment of the benefits to be achieved from additional environ-
mental control expenditures.
Those interested in the available benefit data, as well as the Coun-
cil's broader review of the economic aspects of environmental
improvement, should read "The Economy and the Environment"
chapter of last year's Annual Report.
the costs of environmental controls
The Council's 1971 estimates of environmental management costs
were limited to air and water pollution control and solid waste man-
agement spending. They included control costs, but not the costs of
monitoring the environment. Many of the data were selective or
based on case studies, engineering estimates, or surveys, and the full
impact of emerging standards was not known. Insofar as possible,
comparable methodology was used, but the basic assumptions in the
cost studies varied widely. Byproduct revenues, estimated equipment
life, allocation of process change costs between pollution control and
increased productivity, and numerous other factors were not dealt
with uniformly. Estimates reflected the assumption that emission
and effluent controls would be achieved through treatment. They did
not fully consider other methods, such as process changes, improved
plant management, and recycling, which might decrease total costs.
Many of these problems still exist. But this chapter presents data
and analysis improved in several respects: Costs have been estimated
for controls in a number of additional environmental areas—noise
from commercial aircraft, sediment from construction, water pollution
from feedlots, radiation controls for nuclear powerplants, and recla-
mation of surface—mined lands. Last year's air and water pollution
control data have been updated to reflect new information on stand-
ards and control costs. Finally, the time frame examined has been
expanded to include the entire decade of the seventies, including both
the period when accelerated investments are needed to meet the
requirements of new standards (1970-76) and a more normal period
after the backlog of investment has been met (1977-80). This
extended time frame also picks up the significant operating costs
which will be required by investments made during the previous
periods.
The updated cost estimates for air and water pollution control
come from reports and studies by the Environmental Protection
Agency (EPA) and other Federal agencies. In general these costs are
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3192 LEGAL COMPILATION—GENERAL
based on existing standards which are now law. In the event that the
existing best practicable technology requirements for water pollution
control beyond 1976 are replaced by requirements for recycling or
best available technology, presently under consideration by the
Congress, the estimated water pollution control costs could rise signifi-
cantly, especially after 1976. The raw data for the newly covered
pollution control areas were either supplied by relevant Federal
agencies or collected from other secondary sources, as indicated in
each case.
The new areas of environmental control costs discussed in this
chapter highlight an important limitation in calculating a total cost
of achieving environmental improvement. We are in a period of
changing standards and control technology. It is also a time of increas-
ing concern reflected in legislative action on an ever wider variety
of environmental problems. Consequently, any estimate only approxi-
mates the total cost of realizing a high quality environment.
categories of costs
The broad types of environmental protection expenditures in-
cluded in this chapter are outlined below.
air pollution—This category includes control costs for stationary
sources, such as factories and power plants, and for mobile sources,
specifically automobiles.
The bulk of all air pollution control costs are private expenditures
for controlling mobile and stationary source emissions. The cost of
controlling heavy duty vehicle emissions is excluded because of the
uncertainty over applicable standards. The relatively small public
control costs are limited to Federal expenditures to control air pollu-
tion from Federal facilities and municipal expenditures to control air
emissions from solid waste disposal. All estimates are of the costs of
meeting existing standards established under the Clean Air Act.1
If more stringent State standards are adopted, costs would be higher.
Detailed assumptions underlying the data can be found in the 1972
edition of EPA's The Economics of Clean Air.2
Many States and localities are considering the use of mass transit
systems, traffic controls, and similar measures to help meet the ambi-
ent air quality standards. The costs of these measures, unlike emission
control requirements, are not included.
water pollution—This year's estimates, like those of last year, are
based primarily on control expenditures by municipalities, manufac-
turing establishments, and electric utilities as required by the Federal
Water Pollution Control Act.3 Federal spending includes funds to
upgrade Federal facilities and naval vessels. EPA construction grants
to municipalities are included under the State and local category
along with the funds contributed by those governments. These costs
cover treatment plants and the interceptor sewers, pumping stations,
and outfalls associated with such plants. Cost for improvements to
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GUIDELINES AND REPORTS 3193
collecting sewers and combined sewer systems are shown, but not
included in the total costs in this chapter because of insufficient data,
the uncertainty of the control techniques that will be used to deal with
combined sewer overflow, and the unknown degree to which such
controls will be needed to meet water quality standards.
Expenditures by municipalities and manufacturing establishments
are drawn from the 1972 edition of EPA's The Economics of Clean
Water* The estimate for utilities is from the microeconomic study
on electric utilities discussed later in this chapter.
Three new estimates have been added to the water pollution con-
trol section: feedlots, construction sediment, and vessel pollution.
Livestock and poultry production in feedlots, where many animals
are kept in close confinement, frequently account for major dis-
charges of wastes into streams during storms. In fact, they are the
predominant pollution source in some river basins of the Midwest.
New Federal water pollution control legislation, passed by both the
House and Senate in different versions, would require controls on
feedlot discharges.5 It has been estimated that it would cost the larger
livestock and poultry producers from several hundred million dollars
up to almost $3 billion in capital expenditures to achieve the types of
controls that these new bills would require.6 Small livestock and
poultry producers generally would not be required to make signifi-
cant capital expenditures. Based on the data available, a $1.8 billion
investment has been used for the following calculations.
Construction activities generally expose the land to erosion. The
pending Sediment Control Act, an amendment to the Federal Water
Pollution Control Act/ would require States to establish sediment
control programs for building and construction activities. The new
water pollution control legislation recently passed by the House
and Senate also would require State sediment control programs. The
cost of sediment control for housing construction programs is esti-
mated at between $100 and $150 per structure.8 It is assumed that
there will be 2 million residential units in approximately 1.2 million
individual structures started annually between 1972 and 1980.9 How-
ever, because regulations will be based on meeting water quality
standards, not all homes will require controls. For purposes of this
analysis, it is assumed that one-half of all structures will require
a $125 investment each in controls, for a total investment of $900
million.
The Department of Transportation estimates that adequate control
of sediment during federally aided highway construction repre-
sents up to 0.5 percent of the overall cost of a highway. At projected
levels of Federal highway cost sharing with States during the 1970's,
$333 million will be expended for sediment control during highway
construction.10 Expenditures for nonfederally aided highways have
not been included. Also not included in these estimates are expendi-
tures for continuing sediment control on highways, farms, and the
like.
-------
3194 LEGAL COMPILATION—GENERAL
Also included this year are estimates for controlling waste dis-
charges from Federal vessels, U.S.-based commercial vessels, and
recreational craft. Capital investment of $930 million will be re-
quired between 1971 and 1980 for equipment on vessels and for on-
shore facilities.11 EPA's recently issued regulations for vessel waste
discharges are discussed in Chapter 1 of this Report.
solid waste—This year's estimate includes the costs of collecting and
disposing of residential, commercial, institutional, and industrial solid
wastes. Not included in this category are costs to dispose of the re-
siduals generated from air and water pollution controls. These sig-
nificant costs have in part been included in the air and water pollution
control cost estimates, but comprehensive estimates are not available
at this time.
The cost data through 1980 are calculated by assuming propor-
tional increases in annual expenditures to keep pace with growing
waste generation, with only small expenditures estimated for up-
grading disposal facilities. However, given the long time period and
the potential for more efficient operation and solid waste recycling,
the costs may be overstated, perhaps significantly.
noise—There are no comprehensive estimates of the cost of lowering
noise to more environmentally acceptable levels. Such costs will vary
depending on the levels established and the classes of noise sources
included. Estimates have been made for reducing noise from existing
commercial jet aircraft, for which Federal regulatory authority has
existed for years, although no retrofit regulations have as yet been
promulgated. Because no specific requirements are yet stated, this
cost is not included in the total costs shown in this chapter.
A National Aeronautics and Space Administration study estimates
that available technology can lower aircraft noise levels during take-
off and landing by approximately 30 to 75 percent for existing air-
craft. Modifying the commercial fleet anticipated by 1980 would
require an investment of $860 million to $2.7 billion.12 Because new
aircraft are initially designed to be quieter and because it is difficult
to separate noise control costs from other engine costs, estimates have
not been included for new aircraft. Clearly, there will be some incre-
mental costs due to increased aircraft weight, higher development
costs, and other factors.
radiation—Since enactment of the Atomic Energy Act of 1946, radio-
active emissions have been regulated by the Federal Government. Last
year the Atomic Energy Commission proposed that existing and
planned light-water cooled nuclear reactors be modified or designed
to reduce emissions so that the exposure of individuals in the sur-
rounding population to radiation will be no greater than 1 percent of
the level then recommended by Federal Radiation Council
guidelines.13
To meet those standards, additional air and water effluent controls
must be installed in each plant. The incremental costs of these sys-
-------
GUIDELINES AND REPORTS 3195
terns are expected to be $600 million in capital expenditures to modify
currently operating reactors as well as those now under construction.
Costs to bring the expected number of new reactors to be built by 1980
up to these standards total $800 million, for a total of $1.4 billion.14
The costs for current levels of controls have not been estimated
because high levels of radiation control are an integral part of every
plant design, and it is extremely difficult to separate control costs from
other plant costs.
land reclamation—Half of all coal and almost all nonfuel mining is
accomplished with surface mining techniques. Surface mining, if
uncontrolled, is a significant source of water pollution, particularly
sediment and acid mine drainage. Mining also causes aesthetic blight,
disruption of wildlife habitat, and sometimes destruction of personal
property. The pending Mined Area Protection Act would require
that States set up regulatory programs to assure adequate
reclamation.15
Costs of reclamation vary widely—from estimates of a few hundred
dollars per acre to over $5,000 per acre.16 For these calculations,
unit costs were assumed to be $2,000 per acre for all disturbed
acreage. Although this cost estimate is probably high, it does lend
perspective to the relative costs of high levels of land reclamation.
It is estimated that acreage disturbed will increase from 220,000
acres in 1970 to 330,000 acres in 1980.17 Because it is difficult, if
not impossible, to apportion the costs between water pollution control
and land enhancement, all costs are included in the latter category.
Many categories of environmental controls are not included in this
chapter, such as controls on fertilizer runoff from agricultural lands,
pesticide restrictions, and oil spill controls on tankers. Thus, the total
cost estimates presented here understate the total cost of environ-
mental protection. However, the relatively small expenditures re-
quired by the new categories added this year suggest that these addi-
tional categories will not greatly increase the aggregate control costs,
although they may be large with respect to the activity regulated.
total costs
There are a number of ways to measure environmental control
costs. Total costs consist of those that are already being incurred,
the added costs of meeting new standards, and the costs of providing
control for increasing population and new productive capacity. They
represent a measure of national resources which must be used to meet
environmental goals and are therefore unavailable for other uses.
Table 1 lists the investment in and annualized costs of pollution
control for the categories discussed above for 1970 and 1980 and for
the 10-year-period of 1971 to 1980. As indicated, total national
annualized costs (i.e., operating costs plus interest and depreciation on
investments in environmental controls) will rise from $10.4 billion in
1970 to $33.3 billion in 1980, an increase of 220 percent On a per
capita basis, this represents an increase from about $51 per person in
-------
3196
LEGAL COMPILATION—GENERAL
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-------
GUIDELINES AND REPORTS
3197
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-------
3198
LEGAL COMPILATION—GENERAL
1970 to about $145 per person in 1980.18 Cumulative cash expendi-
tures from 1971 to 1980 will total $287.1 billion. Figure 1 shows the
percentage of total costs for air pollution, water pollution, solid waste,
and other controls. If the non-add items—aircraft noise control and
combined sewer separation—were included, the investment would
rise by between $17.9 billion and $58.7 billion. Operating costs would
also increase, but the actual amount is not known.
The total cost estimate of $287.1 billion is nearly three times larger
than last year's less comprehensive estimate of $105.2 billion. If the
former figure is reduced to remove the new categories added and the
longer time period covered, the two estimates are more comparable.
The costs over the entire decade for all the new categories added, e.g.,
feedlots and urban sedimentation, add just $9.6 billion. The remain-
ing increased cost is primarily the result of covering a 10-year rather
than a 6-year period, when each additional year adds over $9 billion
Figure 1
Total Cumulative Environmental Expenditures
By Category 1971-1980
OTHER
3%
SOLID WASTE
30%
WATER
30%
TOTAL = $287.1 BILLION
Source: Based on data from Environmental Protection Agency and other Federal agencies
-------
GUIDELINES AND REPORTS
3199
in cash outflows for automobile air pollution controls alone. Each
additional year also adds significantly to the solid waste and water
pollution totals.
Even if a comparable time period were used, however, there
would still be increases from last year's estimates because higher unit
cost estimates were used for automobiles and utilities and because all
data were changed from 1970 dollars to 1971 dollars.
As with last year's report, die Council compared its estimates,
based on Government sources, with estimates made by the private
sector. A survey by McGraw-Hill estimated that investments by
American business of $22.8 billion would be required to bring all
existing facilities up to present air and water pollution control stand-
ards.19 As reflected in Table 1, the Council estimated air and water
pollution control expenditures for the 1972 to 1976 period at $24
billion. These figures are not strictly comparable, however, because
the Council's estimate is for new as well as existing facilities. The
most interesting aspect of McGraw-Hill's report is the actual and
planned expenditures by business for pollution control (Table 2),
which shows a 51 percent planned increase in 1972 over 1971
expenditures.
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incremental costs
Although total control costs show the total level of resources that
must be allocated to environmental quality improvements, they are
not a good indicator of economic impacts. Because substantial amounts
of money are currently being spent to clean up air and water pollu-
tion and to dispose of solid wastes, current prices and production
activities already reflect these costs. Further impacts on prices, levels
of production, and employment will result only from imposing new
costs.
Table 3 details incremental expenditures for new pollution con-
trol requirements above those costs required to operate, maintain,
and replace facilities in operation in 1970. Consequently, these in-
-------
3200
LEGAL COMPILATION—GENERAL
Table3
tin billions of 1971 dollars] :
Cumulative requirements
, , , 1971HM- ' '•
Pollutant/medium
Air Pollution
hfte. :,
Mobile automobiles
- dojpttat' ' t' • ,
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,8,7
4,4
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314' Z&?'' ' *?.'!
- 14JS.
13.9 46.6
Water Pollution
Federat
State and local:
Treatment systems
Collecting sewers
Nft Nft .1
NA
Manufacturing ' " 7.0
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Construction sedimentation . i ,,7'
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Noise
; e
Radiation
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Industrial process waste
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Grand total
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-------
GUIDELINES AND REPORTS 3201
cremental costs include only costs above that level either to meet new
standards or to provide environmental controls for growing popu-
lation and increased industrial production. They do not indicate the
level of expenditures which in 1970 were already 'being incurred by
public bodies and industry. The total incremental cost of $182.5
billion reflects a 175 percent increase in expenditures over the level
needed to maintain 1970 levels of environmental control. This total
approximates changes in resource allocation and can be used to assess
the effects of new environmental controls on the economy.
High levels of spending prior to 1970 are particularly important
to solid waste management, where large sums historically have been
spent for collecting and disposing of municipal wastes independent
of any regulatory requirements. Substantial expenditures also have
been made for decades in municipal and, to a lesser extent, indus-
trial water pollution control. In other areas, primarily air pollution,
water pollution from feedlots, noise, and land reclamation from min-
ing, large increases in expenditures will be required in a relatively
short time period to meet new regulatory requirements, either en-
acted or pending.
Figure 2 shows contributions to incremental costs for air and
water pollution, solid wastes, and other categories.
impacts of control costs on the economy
In absolute terms, the pollution abatement costs outlined in the
previous section seem large. Yet, in the aggregate, they are relatively
small when compared with measures of total economic activity such
as the Gross National Product (GNP). During the 1971 to 1980
period, GNP is expected to total over $13.2 thousand billion.20
Consequently, total environmental costs represent 2.2 percent of
total GNP for this period, compared to 1.6 percent for the 1970-1976
period reported last year.
As mentioned before, the Council, EPA, and the Department of
Commerce sponsored a series of economic impact studies to assess
the impact of pollution control costs on the general economy and
on selected key industries most likely to be severely affected.
The study on the general economy examined the impact over the
whole decade. The individual industry studies evaluated the eco-
nomic impacts through 1976—roughly the year when current air
and water standards must be met and the period during which most
dislocations would occur. If standards do not change after 1976,
additional control costs would only be incurred to replace, operate,
and maintain existing facilities and control new sources. If stand-
ards become more comprehensive or stringent, the costs and the
impacts as well will change. Estimates have not been made for these
additional impacts—which may not be proportional to the cost in-
creases. Further efforts are required to refine the economic impact
data, particularly in the area of international trade impacts. New
studies are now underway, building on the studies already completed.
-------
3202 LEGAL COMPILATION—GENERAL
Figure 2
Total Incremental Environmental Expenditures
By Category 1971-1980
SOLID WASTE
14%
TOTAL = 182.5 BILLION
Source Based on data from Environmental Protection Agency and other Federal agencies
The remainder of this chapter is a reprint of the Overview Section
from the summary of the GEQ-EPA-Gommerce studies entitled The
Economic Impact of Pollution Control: A Summary of Recent
Studies, published in March 1972.21
The purpose of this overview is to put into perspective studies
which -were conducted to assess the economic impacts of air and
water pollution abatement requirements on a number of industrial
activities.
The studies were conducted under contract with the Council on
Environmental Quality, the Environmental Protection Agency, and
the Department of Commerce. The Council of Economic Advisers
provided guidance on economic methodology for the studies.
The contractors' reports included summaries, detailed analyses,
-------
GUIDELINES AND REPORTS 3203
and background data. [Summaries of these studies are printed in the
March 1972 publication.]
Adequate data are not yet available on all the ways in which pol-
lution control requirements will affect industrial activity. Environ-
mental standards as well as the changes being induced in the way
materials are extracted, processed, transported, fabricated, con-
sumed, and ultimately disposed of are not only extensive but still
evolving. Comprehensive studies would require a great deal more
time to conduct than was allotted to these preliminary analyses.
In view of these recognized limitations, none of the studies can
be considered definitive presentations ol total impact on the indus-
trial activities examined or on the economy. However, it is reasonable
to believe that the relative relationship of postulated standards and
pollution abatement cost consequences are at least indicative of
the nature and order of magnitude of the economic impacts.
In general, the studies found that the impact of those pollution
control costs that were estimated and examined would not be severe
in that they would not seriously threaten the long-run economic
viability of the industrial activities examined. However, the estimated
impact is not inconsequential in that there are likely to be measura-
ble impacts both on the economy as a whole and on individual
industries.
background
Pollution abatement regulations have been implemented by govern-
ment at all levels in order to reduce the substantial and rising costs
society has been bearing as a result of pollution. These costs are
reflected to varying degrees—sometimes subtly, sometimes directly—
in such factors as increased demands for medical services, property
devaluations, lost man-hours of productive work, lower crop yields,
shorter useful lives of manmade structures, animal losses, and soiling
costs, as well as in such considerations as aesthetics and the quality of
life.
In the absence of public action, the full costs to society of producing
goods are not reflected in the prices of goods since society rather
than the producer bears the costs of pollution. Environmental regu-
lations are a means to internalize these costs by requiring producers
to bear the costs of pollution abatement. As prices change to reflect
pollution abatement costs, consumers can be expected to shift their
purchases to relatively less expensive goods which are produced with
lower pollution abatement costs. Hence, more low-pollution and
fewer high-pollution products will be produced. As a result, less
pollution will be created, fewer resources will be required for pollu-
tion abatement, and more resources will be available for meeting
society's demands for other goods and services.
However, the process of reallocating society's economic resources
outlined above can in the short run have adverse as well as positive
impacts on society. Specifically, transitional economic dislocations
-------
3204 LEGAL COMPILATION—GENERAL
may occur. For example, although sales and employment may be
rising in one industry while falling in another, the employees laid off
from one industry are not likely to be immediately hired by the other
industry due to such considerations as geography, skill requirements,
and lack of knowledge of job opportunities.
The purpose of the economic impact studies was to begin to develop
a better understanding of the nature and order of magnitude of the
adverse impacts of environmental regulations on the economy as a
whole and on individual industries and regions within the economy.
Although these studies focused on adverse economic impacts, it
should be noted that there will be positive economic impacts as well.
An example of positive economic impacts, which were not addressed
by the microeconomic studies, is increased profits and employment:
(a) In the industries that produce pollution abatement equipment
and services, (b) the industries that produce relatively low-polluting
products, and (c) some of the firms in the industries that are im-
pacted by environmental regulations (i.e., firms that absorb the mar-
ket shares previously held by firms that are not efficient when
measured by their use of total resources, including the environment,
and thus close when they must incur pollution abatement costs).
Examples of positive economic impacts, which were not addressed
by either the microeconomic or macroeconomic studies, are: (a) Pos-
sible productivity increases where environmental regulations stimulate
technological develpoments (e.g., changes in production processes
which both increase productivity and reduce pollution), and (b)
increases in the average level of productivity in some industries as
environmental regulations result in the closing of plants that are
inefficient in their use of total resources. Further, no attempt was
made to quantify the economic benefits of a cleaner environment
(e.g., higher crop yield, increased man-hours of productive work),
or to compare these benefits with the cost of pollution abatement.
Finally, since the macroeconomic analysis employs the conventional
national income accounts framework, it overstates the net costs (or
understates the net benefits) to society because such accounting fails
to include the benefits of a cleaner environment.
approach
One macroeconomic study and eleven microeconomic studies were
conducted. The macroeconomic study used a computer-based
econometric model to determine the impact of pollution abatement
costs on such macroeconomic variables as growth of GNP, inflation,
unemployment, interest rates, and balances of trade and payments.
The microeconomic studies concentrated on major elements of 11
specific industries selected in part because of availability of pollution
abatement cost data from the Environmental Protection Agency and
in part because they were thought to represent a reasonably complete
spectrum of industrial activities that might experience significant dis-
locations and impacts. The microeconomic studies concentrated on
-------
GUIDELINES AND REPORTS
3205
such variables as sales, prices, profits, plant closings, employment,
and community impacts in the industries studied.
While effects on related (customer, supplier, and competing) in-
dustries were examined, the simultaneous impacts on different in-
dustries and their cross relationships were not studied in detail.
All of the studies were performed by contractors; the specific in-
dustrial activity areas examined and the contractors are listed in
Table 4.
cost definitions and assumptions
In interpreting the findings of these studies, it is important to be
aware of the nature and limitations of the cost data and the key as-
sumptions which were used. Although these are outlined in each
report in detail, some of the major considerations are outlined below:
The investment costs of pollution control equipment were defined
to include the direct incremental investment required to attain
environmental standards: (a) For existing facilities and (b) for new
facilities. The operating costs for pollution control equipment were
defined to be incremental and net of any productivity increases or
by-product revenues. It should be noted that the figures used in these
studies sometimes differ from the cost estimates prepared by others.
However, in general, a significant portion of such differences can be
explained by the fact that the costs were estimated using definitions
different from those above.
The water cost data were estimated under the assumption that the
relevant standard is the best practicable treatment—roughly the
standards on
'
-------
3206 LEGAL COMPILATION—GENERAL
industrial equivalent of secondary treatment. If the pending water
quality bill set more stringent standards to be met at any time in the
next decade, investment and engineering decisions would undoubtedly
be affected and higher costs would result.
The air cost data were estimated in most cases under the assump-
tion that the same set of emission standards would apply in every
State. The standards assumed were those published by EPA in the
guidelines for developing State implementation plans. If the States
adopt different control strategies in order to meet national ambient
air quality standards, the costs would vary accordingly. The studies
did not include consideration of the proposed sulfur tax.
Only air and water pollution abatement costs associated with
Federal standards were considered. If localities implement more
stringent standards or other standards (e.g., standards for odors), the
total pollution abatement costs would be higher than assumed in
these studies. Further, although some solid waste costs were reflected
in the air and water estimates, these were not comprehensively esti-
mated. Because the volumes of solid waste which will require recovery
and disposal will vary appreciably depending upon how air, water
and solid waste control requirements are addressed, no meaningful
and comprehensive solid waste control costs can as yet be estimated.
The year in which the pollution abatement costs must be absorbed
is a significant determinant of economic impact. For the purpose of
the studies, it was assumed that all pollution abatement costs for exist-
ing plants and for those to be completed by 1976 would be incurred
by 1976. Further, it was assumed that the water pollution abatement
costs would be incurred in equal increments over the period and
that those for air would be incurred over the 5 year period 1972—1976
in the following annual proportions: 5, 10, 35, 40, and 10 percent,
respectively.
The microeconomic studies covered only the period 1972—76. The
macroeconomic study covered the period 1972-80. For the macro-
economic study the cost estimates for the period 1972-76 included
the same estimates as used for the microeconomic studies plus addi-
tional estimates of pollution abatement costs for other industries im-
pacted by environmental regulations. For the 1977-80 period, the
cost estimates included: (a) The operating and maintenance, inter-
est, and replacement costs on the facilities and equipment installed
by 1976 in all industries, plus (b) the capital and operating costs as-
sociated with the equipment required for control equipment in facili-
ties expected to be built during the period.
Most cost estimates were based on end-of-line control technologies.
Since some of these are still in the early stages of development, the
actual cost of these technologies may vary considerably, in either
direction, from current estimates. To the extent that firms meet
abatement requirements by production process changes rather than
end-of-line controls, the costs employed in these studies could be
overestimated.
-------
GUIDELINES AND REPORTS 3207
It was assumed that the prices of pollution abatement equipment
and services remain constant relative to other prices over the decade.
In fact, the prices of pollution abatement equipment and services
could rise faster than other prices due to significantly increased de-
mand which is likely to peak in mid-decade. If this occurs, the costs
employed in these studies would be understated.
All of the cost data were estimated by the Environmental Protec-
tion Agency (EPA). Although the data were examined with the as-
sistance of industry experts identified with assistance of the National
Industrial Pollution Control Council (NIPCC), the cost estimates
provided to the contractors represented the views of the interdepart-
mental task force and were not necessarily endorsed by the industry
experts. The contractors were asked only to assess the economic im-
pact of the cost data given them. They were not asked to assess the
accuracy of the cost estimates. Since definitive cost estimates could
not be developed, ranges of estimates were given to the contractors
so that they could test the sensitivity of the impact to different cost
estimates. However, in some cases, additional cost analyses conducted
simultaneously with the economic studies indicated that the actual
costs could be higher than even the high range of estimates given the
contractors. These additional analyses are noted below in summariz-
ing the contractor reports.
microeconomic impacts
The microeconomic studies indicated that none of the industries
studied would be severely impacted in that the long-run viability of
no industry is seriously threatened solely by the pollution abatement
costs estimated. However, profits will decline for some firms in most
of these industries because firms will not be able to pass on the full
cost of pollution abatement to consumers in the form of higher prices.
Costs will not be passed on completely either because substitute or
foreign produced products are available so that none of the firms in
the industry can pass on their full costs or because the price increases
of the smaller firms which have higher unit abatement costs are con-
strained by those of the larger firms with lower unit abatement costs.
Accordingly, some firms will earn lower profits, some will curtail pro-
duction, and some firms and plants will be forced to close.
However, the studies indicated there will be some price increases
as a result of environmental regulations. Depending on the industrial
activity in question, prices are likely to rise from 0 percent to 10 per-
cent over the period 1972-76. This is equivalent to average annual
increases of from 0 percent to 2 percent with the bulk of the increases
likely to come in 1974 and 1975.
Most of the firms or plants that will be forced to close are currently
marginal operations (e.g., smaller, older, less efficient producers) that
were already in economic jeopardy due to other competitive factors.
In such cases, the impact of environmental standards is only to ac-
celerate closings that would have occurred anyway. The pollution
-------
3208 LEGAL COMPILATION—GENERAL
abatement costs either eliminate already slender profit margins or re-
duce them to a level at which they fail to justify the required capital
expenditures in pollution abatement equipment (in terms of an ade-
quate return on investment).
There are approximately 12,000 plants currently operating in the
industrial activities studied. Of these it is expected that approximately
800 would close in the normal course of business between 1972 and
1976. It would appear from the contractors' evaluations that an ad-
ditional 200-300 will be forced to close because of pollution abate-
ment requirements. Many of these additional closings would appear
to involve plants that were vulnerable for other reasons and, hence,
that were likely to have closed anyway a few years later.
These plant closings and production curtailments will have both
direct and indirect impacts. The direct impacts include the loss of
jobs and reduced value of equity. An indirect impact is that related
(customer and supplier) firms will be forced to close or reduce pro-
duction. For example, farms which have marketed their produce to a
cannery that closed might be unable to find new markets for their
produce. Another indirect impact is that the communities where
such plants are located may suffer local recessions—an impact which
will be most severe in one-plant towns.
The studies suggest that direct job loss attributable to environ-
mental regulations in the affected industry activities examined may
range from 50,000 to 125,000 jobs over the 1972-76 period.* These
figures represent approximately 1 percent to 4 percent of total em-
ployment in the industry activities studied. The direct average an-
nual unemployment created in these industries represents 0.05 per-
cent of the 1970 total national work force. However, the studies
suggest that these estimates could be substantially higher if the econ-
omy is not at full employment.
While the total plant closings in the industries in which plant clos-
ings might have a community impact appear to be about 150, the
data presented are not in sufficient detail to determine the number of
these communities that will be significantly impacted.
It is important to note that the figures reported in the preceeding
paragraphs apply to the industrial activities studied; neither the posi-
tive nor negative impacts on other industrial activities have been in-
cluded. However, in a general sense these other impacts are con-
sidered in the macroeconomic study.
In the following section, a brief description of the impact of pol-
lution abatement costs on each of the industry activities studied is
presented.
* These figures represent the total number of people disemployed as a re-
sult of environmental regulations. They are not net figures because they do
not account for the number of people (conceivably the same people that are
disemployed) who find employment in the industry over the same period.
In many industries the net figures indicates that more people find jobs than
lose them.
-------
GUIDELINES AND REPORTS 3209
automobiles—The study of the automobile industry differed from
the studies of all other industry activities. In all other cases the studies
focused on the impact of air and water pollution control costs re-
quired in the production process itself, while the auto study focused
solely on the impact on the industry of air pollution control equipment
to be installed on vehicles.
The installation of required pollution control equipment on auto-
mobiles and small trucks was estimated to add approximately $350
to the cost of manufacturing a vehicle by 1976-77. This is the same
estimate as reported in EPA's "Economics of Clean Air." Since
approximately $35 of the $350 was already in place by the 1972
model year, only $315 remained to be added. The contractor rounded
this figure to $300, but included a range of ± 30 percent in estimat-
ing the impact of the cost increase on the industry. The range which
he used for cost increase after the 1972 model year is therefore $210
to $390. The cumulative cost increase over the uncontrolled car is
$35 higher or $245 to $425.
The contractor was also given an estimate of increased operating
and maintenance costs of $65 annually or $325 over a 5-year period
(approximately 50,000 miles). However, these costs were not
employed in the analysis because the contractor was unable "to reject
on either statistical or theoretical grounds the hypothesis that for
this range of additions to operating costs the response of new car
purchases is negligible." The high estimate (i.e., $425) may or may
not capture any impact which these costs might have on auto sales.
It is important to note that the purpose of this study was to assess
the impact on the automobile industry of the requirements of the
Clean Air Act. It does not include cost increases which can be ex-
pected from new safety regulations, costs which some studies suggest
are of a magnitude equivalent to those for control of pollution. The
increased costs from the two sources, control of pollution and new
safety features, could have impacts on the industry which are more
than proportional to the sum of these costs.
The contractor's study of demand relationships for all automobiles
and among the different classes of automobiles indicated that from
84 percent to 98 percent of the cost increases associated with air
pollution control equipment will be passed on to consumers in the
form of higher automobile prices. Thus the price of subcompact cars
was expected to rise approximately $294 by 1976-77 because of
required installation of pollution control equipment. The price of
luxury cars was expected to rise approximately $343.
This increase in automobile prices was expected to have two effects
upon automobile sales. First, some change was expected in the class
of car purchased. In comparison with baseline projections, subcom-
pact automobiles were expected to lose 0.25 percent of the market,
and standard sized automobiles 1.6 percent, by 1980 because of the
cost of pollution control equipment. This market share would be
absorbed to some extent by compacts, intermediate, and luxury cars
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3210 LEGAL COMPILATION—GENERAL
(0.26 percent to 0.4 percent) ; and to a greater extent (0.8 percent)
by a new class of cars, the sub-subcompacts, which was expected to
be a factor in the market by that time.
It was also expected that because of increased automobile prices,
the total sales of new automobiles will be decreased. Projections
indicate that, in comparison with baseline estimates, the total number
of new passenger car registrations in 1976 would be reduced by
420,000 or 3 percent from 13.31 million to 12.89 million; in 1980 a
reduction of 180,000 or 1.2 percent from 14.53 million to 14.35
million was expected.
The reduced sales of automobiles through 1980 are expected
to lead to some reduction in employment from the baseline projec-
tions, especially in the period 1973 through 1977. Although total
employment in the automobile industry is not expected to be reduced
below current employment at any time, the growth in employment
will be slower than the baseline projections and in some years employ-
ment will be reduced from the previous year's level.
The maximum reduction in jobs from baseline projections was 1.8
percent or 18,000 jobs in 1976, from 1,025,000 to 1,007,000. Only in
1 year, 1975, is the total number of jobs in the industry reduced below
the previous year's level. In that year jobs are expected to decline
by 13,000 or 1.3 percent from 979,000 to 966,000. By 1980, it is
expected that industry employment will be 0.9 percent or 9,000 jobs
below the baseline projection of 1,044,000.
In 11 other industries significantly affected by these changes, total
employment in 1976 is expected to be 0.25 percent or 35,000 jobs
below the baseline projection of 13,119,000.
By 1980, however, total employment in these industries is expected
to be 53,000 or 0.35 percent above the baseline projection 15,273,000.
Because the contractor assumed a substantial increase in imports
of sub-subcompact cars, the U.S. balance of payments is expected
to be adversely affected by the increased automobile costs associated
with pollution control equipment. The annual net exports of goods
and services of the United States are expected to be reduced by a
maximum of $700 million in 1980.
baking—Total investment required to meet water pollution control
standards associated with the baking process from 1972 through 1976
was estimated to be $11.8 million to $21.3 million. Annual costs were
estimated to increase from $400,000 in 1972 to $2 million in 1976.
Average costs per pound of products were estimated to range from
0.011 cent to 0.02 cent for bread and related products, and from
0.05 cent to 0.09 cent for biscuits and crackers.
Because costs of pollution abatement in the baking process are
so low—0.2 percent of sales—no impact was expected in the bakery
products industry.
cement—Capital expenditures required from 1972 through 1976 to
meet air and water pollution control requirements associated with the
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GUIDELINES AND REPORTS 3211
manufacturing of cement in kilns and clinker coolers were estimated
to total $122 million. Annual costs were estimated to increase from
$3 million in 1972 to $43 million in 1976. These costs average out
to $0.08 to $0.10 per barrel of cement.
Projections of cash flow and capital needs including pollution
abatement expenditures for the cement industry through 1980 indi-
cated that the industry will be able to meet its cash needs. Given
the most severe set of assumptions, however, many changes in the
industry's financial policies would be required. These would include
a reduction in the dividend payout ratio from 59 percent to 49 per-
cent, and an increase in the debt/equity ratio from 0.39:1 to 0.6:1.
Both of these were considered manageable. Alternatively, a 4-5 per-
cent real price increase would be employed to provide most of the
required funds.
Pollution control costs in the cement industry were expected to
accelerate the current trend in the industry toward the closing of
small, old plants and the construction of large, modern facilities.
This, in turn, would increase the captal pressure upon the industry.
The combined effect has been estimated to result in the closing of
approximately 25 cement plants in the 1972-76 period. The addi-
tional impact upon cement industry employment was expected to
be minimal. Only one possible community impact has been identified.
The increase of prices because of pollution controls was expected
to accelerate the current increase in cement imports. No estimate
of the magnitude of this impact has been made, however.
electric generation—It was estimated that the total investment re-
quired to meet air and thermal pollution control requirements asso-
ciated with the generation of electricity from 1972 to 1976 will be
$10.7 billion. Of this, $7.5 billion would be required for air pollution
control, and $3.2 billion for thermal pollution control. It has been
suggested that the cost of installing pollution control equipment on
existing plants might be twice those included in these estimates. If so,
the total investment required through 1976 would reach $17.8 bil-
lion. Annual costs associated with pollution controls were estimated
to rise from $338 million in 1972 to $2.5 billion in 1976. Costs per
kilowatt hour in 1976 would range from 0.22 mils to 1.52 mils
depending upon the region of the country. These costs did not in-
clude additional costs that might be required for the control of nitro-
gen oxides and radiation.
The impact of pollution control costs will vary from region to
region across the United States depending upon the source of energy
employed. In the west south centra], for example, almost all genera-
tors are gas-fueled, and will require almost no air pollution control
facilities. Consequently, pollution control costs in this region in 1976
were estimated to total only 2.8 percent of 1970 average revenues.
In the Tennessee Valley Authority region, on the other hand,
approximately 80 percent of the generating facilities are coal-fired.
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3212 LEGAL COMPILATION—GENERAL
These will be faced with the full cost of air and thermaj pollution
controls. This, combined with a low revenue level, was estimated
to lead to pollution control costs in 1976 totaling 10.65 percent of
average 1970 revenues. The average of all regions' air and thermal
pollution control costs in 1976 was estimated to be 7 percent of
1970 average revenues.
In the philosophy of utility regulation, justified cost increases
are passed on to the consumer. Thus, it can be assumed the above
costs will ultimately be passed on completely to the electric rate-
payers through higher electricity rates. Past experience, however,
indicates that the passing on may not be complete and in any event
will occur with some delay. Furthermore, given the complexity and
variety of rate structures, it was not possible to determine how these
price increases might be distributed among the various categories of
consumers.
No adequate information was available on the demand respon-
siveness of the users of electricity to changes in electricity's price.
The total demand for electricity was judged to be extremely un-
responsive to price.
Six industries were identified for which electric power costs
amounted to 5 percent or more of the total value of shipments.
These are Atomic Energy Commission plants, primary aluminum,
electrometallurgical products, alkalies and chlorine, industrial gases,
and hydraulic cement. The anticipated increase in the price of elec-
tricity was expected to have little impact even upon these industries.
fruit and vegetable canning and freezing—Water pollution abate-
ment regulations were estimated to require the investment of approxi-
mately $120 million by the fruit and vegetable canning and freezing
industry through 1976. Annual costs of pollution control equipment
were estimated at $4.3 million in 1972 increasing to $21.3 million in
1976.
In the fruit and vegetable canning and freezing industry, the largest
third of the plants produce about 80 percent of total industry volume.
These plants enjoy a considerable cost advantage over the remaining
plants, and are consequently much more profitable. This advantage
has created a trend over the past 10-15 years toward fewer and larger
processing plants. Census figures indicate that from 1958 to 1967
the total number of fruit and vegetable canning plants declined 25
percent. The number of fruit and vegetable freezing plants more
than doubled from 1958 to 1964, but then decreased 6.6 percent
through 1967. Both of these trends were expected to continue through
1980 with a 25 percent decrease projected from 1971 through 1980.
It was expected that the larger canning and freezing plants will
also enjoy a cost advantage in installing and operating pollution con-
trol equipment. For those plants which must install their own facili-
ties, for example, the price increase that would be required to offset
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GUIDELINES AND REPORTS 3213
abatement costs would be 5.5 percent for large plants, but 9.6 percent
for small plants.
Given estimates that half of the plants will be able to find lower
cost abatement solutions, and that 58 percent of the projected abate-
ment technology is already installed, actual price increases were not
expected to be as high as above. Prices were expected to rise 1.4 per-
cent to 2.3 percent. Such an increase would cover the average costs
of the larger producers, but not of the smaller plants.
The increased prices were expected to lead to a 0.5 percent to
1 percent decrease in consumption. Such a decrease would be less
than the total annual increase expected in consumption because of
population expansion and increases in per capita consumption.
The increased costs of pollution control were expected to further
reduce the profits of the already marginally profitable small plants.
Many of these plants will be able to tie into municipal systems or to
find other low-cost pollution abatement techniques that will enable
them to stay in business. Experience in some states indicates that half
of the small plants might be unable to find such alternatives. In this
case, up to half of the small plants in the industry, or one-third of
all plants, were expected to be forced to close. Of the 1,200 plants
included in the industry directory, therefore, 400 might be forced
to close because of pollution abatement costs. As noted above, 25
percent of the plants, or 300 of the 1,200, would be expected to close
by 1980 in any event. Thus, the addition of pollution control costs
was expected to lead to the additional closing of 100 plants, or 8.3
percent of the total. In addition, closing of the other plants was
expected to occur some years earlier than otherwise.
It was estimated that the closing of 400 plants would result in
the loss of jobs by approximately 28,000 employees. The disemploy-
ment created by the 100 plants that were estimated to close because
of pollution controls would be one-fourth of that number or 7,000.
Many of these would be in small towns and rural areas where
reemployment would not be readily available. Up to 90 percent of
the jobs lost would be part-time positions.
Because many of the plant closings would be in small towns or
rural areas, the community impact of these closings could be sig-
nificant. This would be further complicated if the farmers in the
surrounding areas are unable to find alternate markets for their
products. This possibility was suggested, but no careful analysis has
been made of the experience in such cases or of the technical factors
involved. Accordingly, no estimate is available for the magnitude of
this impact.
The impact of increased prices in the industry upon the U.S. bal-
ance of payments was expected to be small.
iron foundries—Approximately $348 million in capital expenditures
was estimated to control the air pollution associated with the making
of iron castings through 1976. Annual costs of pollution control equip-
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3214 LEGAL COMPILATION—GENERAL
ment were expected to increase from $6.2 million in 1972 to $125
million in 1976. Average costs per ton of castings produced would
depend upon plant size, with an expected range of $2 per ton for
large producers to $14 per ton for small producers.
The iron foundry industry is composed of a relatively small number
(30 percent) of large producers whose costs and investment per ton
of castings are less than half of the smaller producers'. From 1947
to 1969, the total number of foundries has declined from 3,200 to
1,670. Most of these closings have involved small foundries which
have been unable to raise capital to modernize. This trend is expected
to continue through 1980, with the additional closing of some 670
foundries.
Requirements to install pollution control equipment were expected
to intensify capital availability problems, and thereby accelerate the
rate of plant closings. It was estimated that approximately 10 percent
of these 670 closings would be caused wholly or in large part by
pollution control requirements. In an additional 50 percent of the
closings, pollution control costs were expected to be a significant
factor.
Pollution control costs will range from 1.5 percent to 4.0 percent
of sales. Price increases of 1.7 percent to 5.0 percent were expected
to be necessary to cover these costs and to preserve current rates of
return. Such increases were estimated to be possible with a negligible
effect upon demand.
Total employment loss in all plants projected to close by 1980
was estimated at 26,600. It was expected that approximately half
of these would be reemployed in other iron foundries. The net un-
employment was therefore estimated to be 13,300. For the 60 percent
of the plant closings in which pollution control was expected to be
a factor, disemployment would be approximately 16,000 with a net
unemployment of 8,000.
Approximately 2,250 of these 13,300 unemployed workers would
possess transferable skills. The remainder would be unskilled, and
was therefore expected to experience difficulty in obtaining
reemployment.
Because foundries are generally located near industrial markets,
it was not expected that many communities will be severely impacted
by the projected closings.
Some increase was expected in imports of iron castings because
of increased costs in the United States. Because imports currently
account for 0.1 percent of the U.S. market, these increases were not
expected to be significant.
leather tanning—The total investment required of the leather tan-
ning and finishing industry between 1972 and 1976 for water pollution
abatement equipment was estimated at $89 million. Annual pollution
control costs were expected to rise from $2.1 million in 1972
to $10.7 million in 1976.
A survey of the costs of pollution control alternatives available to
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GUIDELINES AND REPORTS 3215
leather tanneries found that, on average, pollution control costs
were less than or equal to 1 percent of sales. At most, costs
were found to be 2 percent to 3 percent of sales. Such costs were esti-
mated to be well within the capacity of the industry, which frequently
experiences increases and decreases in the costs of its raw-material
hides of as much as 50 percent to 100 percent in a 1- to 2-year
period. Selling prices have correspondingly changed from 10 per-
cent to 25 percent in the same period with no apparent affect on
production. Thus, it was assumed that cost increases of 1 percent to
2 percent because of pollution controls could easily be passed on
by the industry.
Available financial data and an industry survey were interpreted
as indicating that those firms which were not likely to close for other
reasons would be able to finance the required capital expenditures.
It was estimated that a few small, marginal firms might close more
quickly because of pollution control costs, but this impact was
judged to be slight.
The aggregate effects on employment or production in the leather
industry as a result of pollution control costs were estimated to be
minimal. The closing of beam houses by some firms was expected
to result in the unemployment of some 600 workers. These job losses
were expected to be widely scattered geographically, however, with
no important community impacts. Some subsequent increase in em-
ployment was expected where the beam house work would be picked
up.
aluminum smelting and refining—Total investment expected to
control the air and water pollution associated with the smelting and
refining of aluminum for the period 1972 through 1976 was esti-
mated at approximately $935 million. Annual costs were estimated to
range from $22 million in 1972 to approximately $290 million in 1976.
Cost increases per pound of aluminum in 1976 would average $0.020
to $0.032.
Although the required capital expenditures are large, aluminum
producers were judged to have the necessary financial resources.
Cost increases are expected to be passed on to consumers of alu-
minum. Historically, demand for aluminum has been sensitive to
price. Thus it was expected that by 1976 prices increases of approxi-
mately 5 percent to 8 percent will lead to a level of aluminum
consumption 4 percent to 6 percent lower than would otherwise
have existed. In the longer run, price increases of approximately
10 percent were expected to lead to a 13 percent reduction in alu-
minum consumption. This does not mean that the demand for
aluminum would be reduced below current levels. Instead, demand
would not grow as fast as would otherwise be expected.
It was not expected that pollution control costs will force any
existing plants to shut down, although it is possible that some of
the other plants may be closed sooner than otherwise. No decline
of employment in the aluminum industry was expected because
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3216 LEGAL COMPILATION—GENERAL
of pollution controls. As with demand for production, employment
would not grow as fast as otherwise.
Increased costs were expected to have an adverse effect upon
the U.S. balance of payments by leading to a decline in U.S. exports
of ingot and mill products and an increase in U.S. imports of mill
products.
The latter effect might be especially severe because pollution con-
trol costs may lead to new aluminum smelters being located outside
of the United States. No total estimate of the balance of payments
effect has been made, although it was noted that the eventual
decline in exports may total $100 million to $200 million.
Because of the uncertainties associated with the financial capacity
of the industry and the economics of individual smelting and refin-
ing plants, further study is currently being made of the impact of
pollution abatement requirements upon the aluminum industry.
copper smelting and refining—The capital investment required in
the copper industry, because of air and water pollution controls from
1972 through 1976, was estimated to total $300 million to $690 mil-
lion, with a most likely estimate of $341 million. Annual costs were
expected to increase from $6 million in 1972 to $95 million in 1976.
Per pound of refined copper, these costs average $0.001 in 1972 and
$0.025 in 1976, with a possible high estimate of $0.05 in 1976.
It is expected that the industry can finance the required capital
expenditures.
The effect of cost increases has been analysed considering a basic
projection for the copper industry without pollution control costs;
and two alternative assumptions: (a) That foreign competition
will not compete in the U.S. market, so that U.S. producers are able
to raise prices, and (b) that foreign competition will prevent any
price increase in the U.S. market as a result of pollution control
costs. It was assumed that the actual impact of pollution control
costs will lie somewhere between these two extremes.
If the average pollution control costs are considered: (a) U.S.
production of copper in 1980 was expected to be approximately
7 percent less than the base projections of 4,169,000 short tons if
foreign competition prevents price increases while prices and con-
sumption would not change; (b) U.S. production would be 3.5 per-
cent lower than base projections; U.S. consumption 4.6 percent
lower; and U.S. prices 4 percent higher; if foreign competition is
not a factor.
If costs equal the highest estimates: (a) U.S. production would
be 14 percent lower than projected, if no price increase is possible;
(b) U.S. production would be 7.4 percent lower; U.S. consumption
9 percent lower, and U.S. price 8 percent higher, if low foreign
competition permits price increases.
Thus depending upon costs and foreign competition, it was esti-
mated that U.S. supply may be reduced 3.5 percent to 14 percent and
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GUIDELINES AND REPORTS 3217
U.S. consumption 0 percent to 9 percent; and U.S. prices may in-
crease 0 percent to 8 percent because of pollution controls.
It was estimated that most existing U.S. smelters will continue
to operate under pollution control requirements. Two smelters were
identified, however, as being forced to close. No estimate was made
of additional smelters which might close.
With the imposition of pollution controls, employment in the
copper industry was not expected to decline, but would grow more
slowly than the base projections. Without pollution control costs,
employment was expected to grow from 54,000 in 1970 to 76,900
in 1980. Pollution control costs were expected to reduce the 1980
employment by 2,800 to 10,900 or 3.6 percent to 14 percent depend-
ing upon the cost and foreign competition assumptions discussed
above. Where individual smelters close, of course, all workers would
become unemployed. The two smelters identified as closing currently
employ 1,150 employees. No estimate was made of the associated
mining employment. In both instances, a significant community
impact was expected.
No estimate was made of the effects of pollution controls in the
copper industry upon U.S. .balance of payments. In the extreme
case, it was mentioned, all new smelting capacity might be located
offshore. This would mean that the current capacity of 3,066,000
short tons would not be expanded to the predicted 4,169,000 short
tons in 1980, a reduction of 26 percent from the baseline trend.
This would have substantial financial and employment consequences
within the industry in addition to the balance of payments effects.
As with the aluminum industry, further study is being made of the
capper industry to ascertain on a plant by plant basis the costs of
pollution controls and the economic viability of the controlled
plants.
lead smelting and refining—The total capital expenditure required
to control the air and water pollution associated with the smelting and
refining of lead was estimated at about $70 million for the 1972-76
period. Annual costs were expected to increase from $1.1 million in
1972 to $20 million in 1976. Costs per pound of lead in 1976 were
estimated as $0.012 to $0.017, with a best estimate of $0.014. These
studies did not consider the substantial changes in the lead markets
that will be cause by other pollution abatement regulations such as
those which would lead to reductions in the lead content of gasoline.
The U.S. lead industry currently can be divided into the low-cost
producers in Missouri which account for 55 percent to 60 percent
of U.S. production; and the high-cost producers located elsewhere.
Estimates of production and pollution control costs indicated that
the low-cost producers would be able to raise the required capital
and to maintain production even if forced to absorb pollution con-
trol costs. High-cost producers, on the other hand, may not be able
to raise the required capital. If some are forced to close, this will be
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3218 LEGAL COMPILATION—GENERAL
an acceleration of the current industry trend which could be expected
to continue even in the absence of pollution control costs. Any price
increases were expected to be small, reflecting the costs of the low-
cost producers. One estimate was of an increase of $0.007 per pound
or 5 percent. Such an increase was not expected to alter the trend
towards the exit of high-cost producters.
Because the demand for lead was not very sensitive to price, no
significant reduction in lead consumption was expected to result from
pollution control costs. The shift in production toward the less labor
intensive, low-cost producers was expected to result in a net loss of
employment in the industry even in the absence of pollution control
costs. One smelter which was expected to close soon would result in
the unemployment of some 200 persons. Fewer employees would be
needed in the low-cost smelters which pick up this demand, and none
would be needed in the community where the plant closes.
No estimate was made of the impact of pollution control costs in
the lead industry upon the U.S. balance of payments. Some increase
in imports were expected, of course, if prices are raised, but the ex-
pected price increase was judged to be small. No incentive to re-
locate smelters abroad is anticipated. Further study is being made
of the economic impact of pollution abatement regulations on the
lead industry.
Zinc smelting and refining—During the period 1972-76 it was esti-
mated that $62 million of capital expenditures will be required to
control the air and water pollution associated with the smelting and
refining of zinc. Annual pollution control costs would increase from
$1.5 million in 1972 to $27 million in 1976. These would average
$0.0123 to $0.0267 per pound, with an expected cost of $0.0135 per
pound.
The U.S. zinc industry can be segmented into high-cost and low-
cost producers, with a trend toward the exit of high-cost producers
from the industry. Because pollution control costs were expected to
fall upon high-cost producers more heavily than upon their low-cost
competitors, and because price increases were not expected to equal
pollution control costs, some acceleration in the closing of high-cost
facilities was expected from pollution abatement regulations.
An analysis of prices and average production costs for low-cost
producers indicated that these producers would be able to absorb
pollution control costs and raise the necessary capital even if there
is no resultant price increase. It is possible, however, that such a situ-
ation would inhibit the expansion of some low-cost producers. No
similar analysis was conducted for high-cost producers. It was as-
sumed, however that because the profit margins after absorbing pol-
lution control costs were so small for low-cost producers, that the
margins of high-cost producers would be reduced below the oppor-
tunity cost of capital and possibly to a loss. Given the pressure of
imports and substitute materials, it was not expected that price in-
creases could be large enough to alter these conclusions.
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GUIDELINES AND REPORTS 3219
Total employment in the zinc industry is expected to decline in
the long run, with three or four smelters closing, even in the absence
of pollution controls. The trend would be hastened by abatement
requirements, but no estimate was made of the time periods involved.
Total employment in the smelters expected to close was approxi-
mately 3,000. No estimate of related mining employment was made.
The accelerated demise of high-cost producers and the cost in-
creases for low-cost producers would have a number of effects on
the U.S. balance of payments. The closing of some U.S. smelters and
the inhibition of expansion of others would lead to an increase in
zinc metal imports. This would be partially offset by the reduced
imports of concentrates formerly used by high-cost producers. Addi-
tional imports of zinc metal were estimated to reach $78 million to
$ 124 million per year. No estimate was made of decreased imports of
zinc concentrates.
Further study of the zinc industry is being conducted to ascertain
the impacts of pollution abatement requirements on individual smelt-
ing and refining plants.
petroleum refineries—From 1972 through 1976, it was estimated
that the petroleum refining industry would be required to make
capital expenditures of $634 million to $1,155 million to meet the air
and water pollution abatement requirements that apply to the refin-
ing of petroleum. Annual costs of $2 million in 1972 rising to $21
million in 1976 would also be required. In addition, the cost of using
low sulfur fuels in refinery operations was estimated to be $108 million
annually by 1976. The average pollution abatement costs per barrel
in 1976 were estimated to be $0.06, thus increasing the total cost per
barrel by approximately 1.4 percent.
Because capital expenditures for pollution control equipment
would equal only 5 percent of the $21.4 billion capital expenditures
otherwise projected for the industry in the next ten years, it was
considered that these expenditures would be manageable. A price
increase of $0.08 per barrel was expected to help defray the added
costs. In addition to the annual costs mentioned above, this $0.08 fig-
ure included an 8 percent return judged to be necessary to attract the
capital required to install control equipment in new facilities. This
price increase was assumed to be possible because imports are re-
stricted by law and the demand for petroleum is not elastic.
Given this $0.08 per barrel price increase, it was estimated that
most small producers will be able to sustain added pollution control
costs. A few, perhaps 12, might be forced to close.
If a dozen small refineries do close, approximately 1,000 workers
would become unemployed. These small refineries would probably
be located near smaller communities, and thus would have a notice-
able local impact. Otherwise, industry employment is expected to
increase at about the rate projected without pollution control costs.
If desulfurization of the liquid fuels used in refinery operations
is required, additional imports of such fuels were estimated to cost
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GUIDELINES AND REPORTS 3221
Assuming that pollution abatement measures will be similar in
all paper producing countries, it was not anticipated that pollution
abatement costs would significantly affect the international competi-
tiveness of U.S. paper products.
Steel making—Capital expenditures required by air and water pol-
lution abatement regulations were estimated to total $2.4 billion to
$3.5 billion for the period 1972 through 1976. Annual operating and
maintenance costs were estimated to be $45 million to $70 million in
1972, increasing to $760 million to $1,100 million in 1976. Per net
ton of steel shipped, these costs would average from $0.47 to $0.73 in
1972 and $6.60 to $9.60 in 1976.
Price increases to cover pollution abatement costs would be neces-
sary to generate the cash required to meet projected expenditures.
The estimated 0.7 percent to 1.5 percent annual increases were con-
sidered moderate, however, in relation to historical price increases.
It was expected that most facilities would be able to install pollu-
tion abatement equipment and continue operation. This conclusion
was strengthened by the fact that the demand may exceed the ca-
pacity of the industry to supply steel so that the industry would need
all of its current capacity.
The possible effect of price increases upon the U.S. balance of pay-
ments was assumed to be negligible because of continued voluntary
import restrictions, the realignment of currencies, and the moderate
size of expected price increases.
Because the estimates of the industry's ability to finance the re-
quired capital expenditures and to maintain operations in the less
modern facilities are sensitive to several key assumptions (e.g., sub-
stantial increases in demand for domestic steel, current industry ca-
pacity) , additional analysis is being conducted to confirm the validity
of these assumptions.
macroeconomic impact
The macroeconomic study indicated that the national economy
will not be severely impacted by the imposition of pollution abate-
ment standards. However, the impact is not insignificant.
In general, the dynamics of impact are as follows. Pollution control
costs are assumed to affect the economy in the form of higher product
prices and new demands for investments in pollution control facili-
ties by industry ($26 billion in 1971 dollars over the 1972-80 period).
Prices rise as a result of the cost-push impact of pollution control
costs. In the absence of compensatory macroeconomic policies, the ef-
fect of rising prices, which tends to slow the growth of demand in the
economy, outweighs the stimulating impact of investments in pollu-
tion control facilities. Consequently, the rate of growth of GNP in
constant dollars is retarded. The increase in unemployment is tied to
the slowdown in real product growth. The current account balance
of international trade deteriorates primarily as a result of the increase
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3222 LEGAL COMPILATION—GENERAL
in domestic prices relative to world prices.* Monetary and fiscal policy
adjustments can be initiated to completely offset the slowdown in
GNP and employment declines but at the expense of more rapid
price rises and further decline in the balance of international trade.
The impact of pollution control abatement costs is discussed below
in the context of three alternative projections of the national
economy: (a) A baseline projection assuming a return to a near full
employment economy and no pollution control costs; (b) the addi-
tion of pollution control costs to the baseline projection using best
estimates of pollution control costs as well as a variant with costs 50
percent higher than the best estimates; and (c) the addition of
compensatory monetary-fiscal policies and pollution control costs to
the baseline projection.
To put these findings in perspective, the key assumptions and
possible sources of bias are discussed, followed by a brief description
of the methodology employed in this study.
baseline projection—The baseline used in this study was con-
structed to push the economy toward full employment. This trend
toward full employment shows the unemployment rate falling to 4.4
percent by 1976. Over the 1971-76 interval, the value of GNP in
constant dollars grows at an average annual rate of 5.2 percent and
consumer prices by 4 percent.** Because this study concentrates on
the changes in the economy due to pollution control costs, the specific
details of the baseline case are not at issue here.
impact Of pollution control COStS—Constant dollar GNP grows
more rapidly in 1972 than in the baseline case as a result of additional
demand generated by pollution control investments. However, re-
flecting the impact of higher prices for consumer and capital goods,
constant dollar GNP falls below the baseline in 1973 and remains
below the baseline throughout the decade. As shown in table 1; the
annnual rate of GNP growth averages 0.3 percentage points lower
over the 1972-76 interval (average annual growth rate drops from
5.2 percent to 4.9 percent) and 0.1 percentage points lower over the
decade (from 4.8 percent to 4.7 percent). These averages are not
fully informative because the assumed time-phasing of pollution con-
trol investments concentrated in 1975-76 lowers the growth rate by
one-half of a percentage point in those years, whereas the economy
recovers somewhat near the end of the decade.
The impact on prices is felt immediately, with the most significant
increases occurring in plant and equipment prices as a result of cost
increases in steel, nonferrous metals and electricity. Over the 1971-
*For lack of data, this exercise assumes that price increases resulting from
pollution control occur only in the United States. To the extent that similar
price rises do take place in the economies of our major trading partners, the
trade effects are overstated.
**These guidelines were provided to the contractor before the Phase II
economic policy was announced.
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GUIDELINES AND REPORTS
3223
-------
3224 LEGAL COMPILATION—GENERAL
76 interval, fixed investment prices rise at an annual rate of 0.5 per-
centage points above the baseline, while the consumer price index
increases by 0.2 percentage points on an annual basis from a baseline
average of 4 percent per year. Here again, the largest price increases
occur in mid-decade. Inflationary pressures ease considerably by 1976,
and near the end of the decade prices rise at a lower rate than in
the baseline case. In large part this is a result of lesser incremental
pollution control costs in conjunction with a greater degree of excess
capacity in the economy.
The unemployment rate is slightly higher (0.1-0.2 percentage
points from a baseline of 4.6 percent over the decade with employ-
ment declines nearly offset by new jobs created by pollution control
investments.
Fixed investment, excluding those for pollution control purposes,
declines slightly over the decade as a result of slower GNP growth,
rising prices and a lower level of capacity utilization in the economy.
By 1976, investment levels for nonpollution control purposes are
3.2 percent below the baseline level of $112 billion in 1958 dollars
and 1.3 percent below by 1980. Total fixed investment lies above
the baseline until 1976 when pollution control investments fall
sharply. The resultant decline leaves total fixed investment $0.6
billion below the baseline in 1980.
Net exports of goods and services fall below the base case with
imports rising due to domestic price increases. The current account
balance declines by more than $1 billion per year over the 1972-76
period from a baseline of $2 billion in current dollars. Less con-
fidence should be placed on the reliability of these trade results
because the model deals with such impacts very crudely. However,
given the assumption that foreign prices will not increase due to
environmental regulations overseas, it is clear that net exports
would decline.
Although the previous results were based on best estimates of
pollution control costs, another variant was run assuming that pollu-
tion control costs were 50 percent higher, in part to account for any
costs which may have been excluded. In general these new results
(shown in Table 1) were simply about 50 percent greater than
before for nearly all variables, e.g., GNP growth over the 1972-76
interval slowed by 0.45 percentage points instead of 0.3. Thus, except
for the unemployment rate, which increased by more than 50 per-
cent, variations in economic variables were roughly proportional to
the percentage variation in pollution control costs.
impact with monetary-fiscal policy adjustments—Assuming that
the Federal Government may try to offset some of these impacts, the
contractor experimented with monetary-fiscal policy changes in order
to bring the economy back to its baseline path with respect to GNP
growth and the level of unemployment. Although it is not at all
clear that the particular mix of adjustment policies selected by the
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GUIDELINES AND REPORTS 3225
contractor, relying primarily on government spending, would be the
most appropriate one, the results are nevertheless indicative of the
magnitude of adjustments required and the impact of expansionary
policy changes.
The fiscal stimulus required to return the economy to its baseline
growth path is substantial. Federal spending over the 9-year projec-
tion period sums to over $70 billion above the baseline case, implying
annual increases in expenditures less revenues of from $7-$ 10 billion
during the last half of the decade.
This stimulus does bring the economy back to the baseline growth
path, but in the process it aggravates the impacts on prices and the
balance of payments. Inflationary pressures increase slightly in 1972-
76 but do not ease off after that period as they did when only pollution
control costs were added. For the 1972-80 period, the consumer
price index rises by about one-quarter of 1 percentage point an-
nually above the baseline.
The sustained price increases further aggravate the current ac-
count balance, generating an average annual decline in net exports
of about $2 billion per year over the 1972-80 period.
Interest rates were essentially unchanged because the policy
adjustments employed in the study were designed to maintain stable
interest rates.
In this case, the effect of raising pollution control costs by 50
percent produces somewhat more than proportional impacts on the
economic variables. The Federal budget deficit must be increased
to attain baseline GNP levels while prices and the balance of pay-
ments deficit increase by slightly more than 50 percent.
assumptions and sources of bias—This section looks at issues
which may have biased the results in the areas of the basic pollution
control cost data, the method of inserting costs into the model and
the model itself. Finally, a few comments are made concerning the
probable direction of bias in the macro-impact results.
the input data—(1) Coverage—pollution control costs were in-
cluded for 15 industry groups which were considered the major
sources of industrial pollution. It is probable that other sectors are
affected but the empirical impact is expected to be negligible. As
shown earlier, pollution control costs are predominantly air and
water for industry which excludes costs in the areas of solid waste
disposal, governmental water pollution abatement activities and
public air pollution abatement. The absence of these figures im-
plies the assumption that there are no incremental costs in industrial
solid waste disposal and that no adjustments were made to increase
revenues of State and local governments above the baseline
projections.
(2) Cost data issues—aside from any difficulties in the engineer-
ing cost work, there are some conceptual issues although the direc-
tion of possible bias is not clear. For example, investment costs in the
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3226 LEGAL COMPILATION—GENERAL
water area include a 20 percent upward revision in part to com-
pensate for down time required to install abatement facilities while
down time should be reflected as a decline in production, not as an
increase in aggregate demand.
(3) Cost phasing—phasing patterns clearly have an important
impact on the timing of economic effects, e.g., assumptions used
herein produce the most significant effects in 1974-76. However, it
is not clear that other phasing assumptions would reduce impacts
over the decade as a whole.
(4) Costs of pollution control facilities—a key assumption under-
lying the cost data is that the prices of abatement facilities relative to
other prices remain constant over the decade. In fact, if new demand
is significant enough and especially if demands are bunched, prices
of facilities might rise at a much greater rate relative to other prices
in the economy. If these effects occur, costs would be understated.
Obviously, the time phasing assumption might have a critical im-
pact on the basic cost numbers.
(5) Foreign trade assumptions—no allowance was made in the
results for any price increases of world prices as a result of pollution
control efforts outside the U.S. or the use of higher cost U.S. goods
in production processes elsewhere. To the extent that foreign prices
do rise, net exports would rise. Further analyses are to be made that
consider increases in world prices. There is also a probability that
the United States may be exporting pollution control equipment
in the future, a factor which could improve the balance of trade
but has not been included in this study.
problems of the treatment of cost data in the model—As men-
tioned above, a critical assumption in this study is that pollution con-
trol costs are entirely unproductive. By making this assumption we
have bypassed an area of intense controversy where a great deal of
research is now taking place.
Abatement costs are assumed to be based on end-of-line control
technologies. In fact, a lower cost approach may be adopted relying
on managerial improvements or changes in basic production
processes. Such changes would affect the results both with respect to
the magnitude of costs which in turn affects the magnitude of in-
creases in prices and in cost of capital.
There are many ramifications of this issue. For example, pollution
control efforts may spur increases in labor productivity because of a
more rapid adoption of new technologies, which often tend to produce
fewer pollutants per unit of output. It can also be argued that cost
increases may eliminate marginal firms and thereby average labor
productivity could increase if aggregate demand is maintained at full
employment. The results also ignore possible feedbacks on labor pro-
ductivity from improved health, etc., as a result of less pollution which
could lead to results different from those indicated by the study.
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GUIDELINES AND REPORTS 3227
problems with the econometric model—It is not clear at this
point what the nature of bias may be from incorrect specification
in the model itself. Clearly the model was not designed to handle the
special case of pollution control and thus refinements could be made
(such as production functions by industry to account for productivity
impacts varying with pollution control technologies). Whether such
changes would substantially alter the results reported is not known.
One part of the model which may be weak is the trade sector, which
is quite simple, including only four or five sectors. For example, if
imports fall off more than proportionately as GNP declines, then net
exports would not fall as much as they do in current results. Another
issue is the inability of the model to capture employment losses due to
plant shutdowns or cutbacks as profits, in some cases, are squeezed.
Because the model relates unemployment only to aggregate variables,
it may understate the impact of pollution control costs on unemploy-
ment. While we are not sure bias in the model is significant, we do
believe that further study and refinement may be warranted in order
to realistically capture pollution control impacts.
possible direction Of bias—As a result of this complex set of
qualifications, in which some have biases in opposite directions and
other factors have unknown effects, no statement can be made with
confidence about the direction of net bias in the present study.
methodology—Pollution control costs are assumed to affect the
economy in several respects: The efficiency of capital in the aggregate
production function is reduced, prices of consumer and capital goods
increase, the cost of capital per unit output increases and finally
pollution control investments generate new output and employment
in industries producing abatement facilities. It is worthwhile emphasiz-
ing that the quantitative magnitude of the first three negative impacts
hinges importantly on our assumption that pollution control costs are
entirely "unproductive" in the sense of generating new capacity in
industrial establishments.
prices—Annual costs in the form of percentage cost increases were
inputed into the industrial sector of an input-output table. These
cost increases are initially converted to first-round price increases by
industry markup factors which range from 0.8-1. These price in-
creases are then passed on through other industries which use other
products as inputs, assuming that all raw material price increases
are passed on 100 percent. After taking account of these interindustry
effects, these price increases were passed on through another series
of markup factors for final demand components, such as cars, shoes,
and plant and equipment. This set of price increases is then used to
move the economy off the baseline growth path.
aggregate production function—Pollution control investments
are included as a factor boosting aggregate demand in the economy,
thereby generating output and employment, but were not considered
-------
3228 LEGAL COMPILATION—GENERAL
to augment the productive or capacity-augmenting capital stock of
the nation. No adjustment was made for reducing the efficiency of
labor in the aggregate production functions, although this effect is
probably small compared to that for capital stock.
cost of capital—Since pollution control expenditures are assumed
not to be capacity-augmenting, some further adjustment was neces-
sary to reflect the negative incentive this would have on industry's
consideration of new investments which would augment capacity.
This adjustment was necessary because the determination of invest-
ment in the macro model did not explicitly consider the impact of
more capital required per unit of output. This was done by boosting
the "user cost of capital" by the ratio of pollution control costs to base-
line investment levels. Conceptually, this is equivalent to raising the
cost of capital needed to produce a unit of output. To provide some
feeling for the complicated set of factors which affect investment (ex-
cluding pollution control) demands in the model, we note that it is
negatively affected by the slowdown in GNP growth, the rise in capital
goods prices, the rise in the cost of capital and by the decline in the
degree of capacity utilization. Offsetting these factors to some degree,
investment demand is stimulated by the increase in wholesale prices.
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GUIDELINES AND REPORTS 3229
footnotes
1. 42 U.S.C. § 1857.
2. Environmental Protection Agency, The Economics of Clean Air: Annual
Report to the Congress of the United States, 1972.
3. 33 U.S.C. § 1151.
4. Environmental Protection Agency, The Economics of Clean Water, 1972.
5. S. 2770, 92d Cong., 1st Sess. (1971) (House bill, originally H.R. 11896,
passed as S. 2770 in 2d Sess. (1972).
6. Based on data supplied by the Office of Water Programs, Environmental
Protection Agency and the Agricultural Research Service of the U.S.
Department of Agriculture.
7. Council on Environmental Quality, The President's 1972 Environmental
Program, pp. 15-38, 1972.
8. Office of Water Programs, Environmental Protection Agency, Control
of Erosion and Sediment Deposition From Construction of Highway
and Land Development, 1971; estimates supplied by the Office of
Housing Production and Mortgage Credit, Department of Housing and
Urban Development.
9. U.S. Department of Commerce, Statistical Abstract of the United
States, p. 679, 1970.
10. Data supplied by the Federal Highway Administration, Department of
Transportation.
11. Based on data supplied by the Office of Planning and Evaluation, Environ-
mental Protection Agency.
12. National Aeronautics and Space Administration, "Aircraft Engine Noise
Reduction Conference: Figure Reprints," pp. IX-1—IX-13, May 16-17,
1972.
13. Atomic Energy Commission, Appendix I, 10 C.F.R., Part 50, 1971.
14. Data supplied by The Directorate of Licensing, Atomic Energy Commis-
sion.
15. S. 993 and H.R. 4704, 92d Cong., 1st Sess. (1971).
16. Based on data supplied by the National Environmental Reaserch Center,
Environmental Protection Agency, Cincinnati, Ohio.
17. Data supplied by the Bureau of Mines, Department of the Interior.
18. U.S. Department of Commerce, Statistical Abstract of the United
States, p. 5, 1971; Bureau of the Census, U.S. Department of Com-
merce, Population Estimates and Projections, p. 1, November 1971.
19. Economics Department, McGraw-Hill Publications Co., "Fifth Annual
McGraw-Hill Survey: Pollution Control Expenditures," May 12, 1972.
20. Council of Economic Advisers, Economic Report of the President, p.
195, 1972; Council on Environmental Quality, Department of Com-
merce, and Environmental Protection Agency, The Economic Impact of
Pollution Control: A Summary of Recent Studies, p. 323, 1972.
21. The full report is available from the Superintendent of Documents, U.S.
Government Printing Office, Washington, D.C., for $2.50 per copy. Some
portions of the Overview Section have been put in a different order for
purposes of this chapter.
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-. -_-.-»•. -
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GUIDELINES AND REPORTS 3231
national parks
A chasm a mile deep and 9 miles wide, its innards a time print
of earth's history to the geologist, to the artist a mural of eroded
form changing pattern moment by moment from dawn to dusk. A
block of the High Sierra country with a 7-mile long valley bounded
by towering waterfalls and sheer precipices; close by, a grove of
2,000-year-old Giant Sequoias. A river of grass at the Nation's south-
eastern tip, tropical paradise habited by alligators and spoonbills,
deer and panther. A cliffside village whose residents mysteriously
vanished 7 centuries ago, leaving their adobe dwellings, cloth, corn
cobs, and shards as reminders to the twentieth century of another
far different culture that lived close to the earth. A 2-million-acre
tract of geysers and hot springs, canyons and waterfalls, mountain
lakes and back-country streams, haunt of the grizzly and black bear,
the elk, and the eagle.
These natural and cultural marvels have been called "America's
Crown Jewels." To those who have not already guessed, they are de-
scriptions of five of the Nation's leading National Parks—Grand
Canyon, Yosemite, Everglades, Mesa Verde, and Yellowstone.
"Crown Jewels" may be a particularly fitting term to define the
founding principle of the National Parks. Where before nations had
sought to preserve the jewels of their monarchs for future genera-
tions to view and admire, the idea of a century ago marked the sav-
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3232 LEGAL COMPILATION—GENERAL
ing of natural crown jewels, not only to be seen by future genera-
tions in their original condition but also to be used for recreation of
the body and mind.
One traveling throughout the world finds the concept of the Na-
tional Park to be one of the United States' most recognized at-
tributes—and one of its leading exports. More than 100 nations have
followed the U.S. pattern and have designated National Parks or
Nature Reserves of their own. The national park idea is considered
unique, not for the objects preserved but for the concept that a na-
tion would decide that it is in the common interest of all of its citi-
zens to set aside millions of acres for their natural and cultural
worth, excluding industrial, agricultural, or residential development
that might impair continuance of the areas in or near their original
state.
The National Park System that has grown up over the past century
is, however, more than a collection of the Nation's natural crown
jewels. It now embraces 247 areas other than National Parks which
have been set aside—Historical Sites, Scenic Rivers and Trails, Park-
ways, Seashores and Lakeshores, Recreation Areas, and a Scientific
Reserve. To the purposes of preservation and recreation has been
added education. At each of the areas, park ranger naturalists or
historians seek to interpret the values of the locale to park visitors from
all over the world.
Although the National Park System constitutes only a small per-
centage of the Nation's geography and satisfies but a fragment of the
people's total recreation demand, it has another significance. The Na-
tional Parks, especially, constitute an early warning system for some
of the Nation's values. The parks are beset with problems—over-
crowding, pollution, transportation congestion, crime, lack of equal
availability to all. Thus the park areas are feeling environmental
pressures similar to those that threaten the quality of life in the rest
of the Nation. Encroachments on the parks and what the Nation
does about them are a test of its resolve to improve the quality of all
sectors of our environment. This chapter will deal with National
Parks as weathervanes of the Nation's search for a better quality of
life and its struggle to turn back threatening inroads before they lead
to irreversible damage.
a century of parks
Although the world's first National Park was authorized in 1872
when the Congress set aside 2 million acres in the Yellowstone region
of the Rocky Mountains as a public park, the seeds had been sown
much earlier. In 1832, explorer-painter George Catlin, while ven-
turing through the wilderness of South Dakota, worried about the
possible extinction of buffalo and Indians. Catlin wrote in his jour-
nal: "Many are the rudenesses and wilds in nature's works which
are destined to fall before the deadly axe and desolating hand of
cultivating man." 1 Indians, buffalo, and the wilderness in which
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GUIDELINES AND REPORTS 3233
they roamed might not have to disappear completely, wrote Catlin,
if they were
(by some great protecting policy of the government) preserved in their
pristine beauty and wilderness, in a magnificent park, where the world could
see for ages to come, the native Indian in his classic attire, galloping his wild
horse . . . amid the fleeing herds of elks and buffaloes. What a beautiful
and thrilling specimen for America to preserve and hold up to the view of
her refined citizens and the world, in future ages! A nation's park, contain-
ing man and beast, in all the wild and freshness of their nature's beauty.2
During most of the nineteenth century, the American frontier spirit
of conquering and developing the wilderness far overshadowed con-
cepts of preservation. Occasionally, the Eastern press could be aroused
to demand preservation, as in 1852, when two unscrupulous Califor-
nia men cut down a 315-foot-high, 61-foot-circumference Giant
Sequoia tree in the Calaveras Grove just north of what is now
Yosemite National Park and shipped a 116-fcot-high section of bark
East for a show in seaboard cities and London. Later, after Horace
Greeley and Frederick Law Olmsted discovered the beauty of
Yosemite Valley and published articles on the dangers to its sur-
vival, the Congress was persuaded in 1864 to grant about 10 square
miles of Federal land, including Yosemite Valley plus part of the
Mariposa Grove of "Big Trees," to the State of California as a State
park. The grant stipulated "that the premises shall be held for public
use, resort and recreation [and] shall be held inalienable for all time." 3
Significant also is the 1865 prophesy about Yosemite by Olmsted,
the famed designer of New York's Central Park:
It is but 16 years since the Yosemite was first seen by a white man, several
visitors have since made a journey of several thousand miles at large cost to
see it, and notwithstanding the difficulties which now interpose, hundreds
resort to it annually. Before many years if proper facilities are offered, these
hundreds will become thousands; in a century the whole number of visitors
will be counted by the millions. An injury to the scenery so slight that it may
be unheeded by any visitor now, will be one of deplorable magnitude when its
effect upon each visitor's enjoyment is multiplied by these millions. But again,
the slight harm which the few hundred visitors of this year might do, if no care
were taken to prevent it, would not be slight if it should be repeated by
millions.4
yellowstone park established
Although explorers, fur trappers, and prospectors had been wan-
dering through the Yellowstone country since 1807 and bringing
back tall tales of smoking earth, high waterfalls, and erupting gey-
sers, it was not until the Washburn-Langford-Doane expedition of
1870 that the full beauty and spectacle of this wilderness became
widely publicized and known. While the Washburn expedition was
encamped one night, Cornelius Hedges, a Montana lawyer, sug-
gested at a campfire discussion that there should be no private own-
ership of these wonders but that the area should be set aside forever
for public enjoyment. The group agreed and set about making this
intention known to others. Another expedition in 1871 led by Gov-
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3234 LEGAL COMPILATION—GENERAL
eminent geologist Ferdinand V. Hayden returned with documenta-
tion and pictures to verify earlier reports. A bill for the creation of
Yellowstone National Park was introduced in the Congress in De-
cember 1871. Some Senators opposed the bill. In floor debate,
California Senator Cornelius Cole said:
I have grave doubts about the propriety of passing this bill. The natural
curiosities there cannot be interfered with by anything that man can do. The
geysers will remain, no matter where the ownership of the land may be,
and I do not know why settlers should be excluded from a tract of land 40
miles square in the Rocky Mountains or any other place.5
But the bill passed and was signed by President Grant on March 1,
1872.6
The Act did not specifically use the words "National Park." But
the term was coined in the press, and Nathaniel P. Langford, the
first Superintendent, was called "National Park" Langford. The Fed-
eral lands in the territories of Montana and Wyoming lying near the
headwaters of the Yellowstone River were reserved "and withdrawn
from settlement, occupancy, or sale" and "dedicated and set apart
as a public park or pleasuring ground for the benefit and enjoyment
of the people." 7 The law authorized the Secretary of the Interior to
publish rules and regulations providing for the preservation "of all
timber, mineral deposits, and natural curiosities or wonders" within
the park, to "provide against wanton destruction of the fish and
game" 8 and to remove trespassers.
It is doubtful that anyone in 1872 had in mind the start of a vast
system of large recreational areas or wildlife sanctuaries. The advo-
cates of Yellowstone Park had originally sought only preservation of
the geysers, hot springs and waterfalls, and the few acres around
them. They did foresee that as a privately owned area the wonders
of these volcanic phenomena might be exploited for the financial
benefits of a few. However, because much of the area was unex-
plored and it was believed that many more geysers and natural
"wonders" might exist in the area, the boundaries were extended in
the bill passed by the Congress.
What was most significant about the Yellowstone Act, however,
was that it set a precedent for Federal ownership of a large block of
public domain which could be administered in a manner to bar for-
ever agriculture, mining, grazing, lumbering, and all other exploita-
tion. At that stage of the development of the Nation, there were no
competing demands for the resources of the Yellowstone country:
No railroads ran within hundreds of miles; the Rocky Mountains
were thought inaccessible for timber harvests; the cattlemen had not
yet entered the area; waterpower needs had not yet developed; and
the presence of hostile Indians made the area unattractive to settlers.
parks' growth slow
The National Park Service did not follow immediately and nat-
urally from the acquisition of Yellowstone. In fact, things went very
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GUIDELINES AND REPORTS 3235
badly for this newborn concept. The Congress appropriated no funds
for Yellowstone in the 5 years after the Park was authorized, assum-
ing that concessioners would pay rents adeqate to provide adminis-
tration and protection. Hunters took whatever game they wanted.
Visitors threw all types of objects into the geysers to see what would
happen. For a while, some guides attempted to coax hot springs into
geyser action by pouring in soap or concentrated lye. A railroad al-
most got permission to run tracks through the park and up to the
major natural attractions. When proper law enforcement was finally
introduced under the Army administration in 1886, rules and regu-
lations were enforced somewhat, but there was little or no progress
in resource management. Yet by word of mouth, and especially
through newspaper and magazine articles, the fame of Yellowstone
spread, and with it the idea of National Parks for all the people took
root.
The term "National Park" was not applied by the Congress until
1878 in a general appropriation for civil expenses, which listed an
item "to protect and improve the Yellowstone National Park." 9 The
first legislation using the term National Park was in 1899 when the
Congress authorized and established Mt. Rainier National Park.10 By
the turn of the century, a number of other major areas had been set
aside. In 1890, in the Benjamin Harrison administration, Yosemite
National Park was established surrounding the valley, and in 1906 the
valley lands were re-acquired from the State. Two other National
Parks were founded at the same time in California—General Grant
(which later was incorporated in Kings Canyon) and Sequoia. As
mentioned, Mt. Rainier National Park was established in 1899 in
Washington. Crater Lake National Park was set aside in Oregon
in 1902, Mesa Verde National Park in Colorado in 1906, Glacier
National Park in Montana in 1910, and Rocky Mountain National
Park in Colorado in 1915. A number of other large areas were set
aside as National Monuments, later to become National Parks—
among them Grand Canyon National Monument in Arizona in 1908
and Mount Olympus National Monument in Washington (later
named Olympic National Park) in 1909. Establishment of National
Parks is shown in Table 1.
In the early days, the National Park concept was unpopular with
hunters, miners, loggers, and grazing interests. The Park concept
called for elimination of all exploitive use of the areas. This position
conflicted with the then-emerging utilitarian school of conservation as
pioneered by Gifford Pinchot: using resources for the greatest good
of the greatest number of people and not keeping them in their orig-
inal state. To these early conservationists, dams for power and rec-
lamation and sustained-yield logging were preferable to "locking up"
resources forever in National Parks. In 1913, the pendulum momen-
tarily swung to the utilitarian side when Pinchot and his supporters
finally won Congressional approval for the Hetch Hetchy Dam
within Yosemite National Park to supply water for San Francisco. In
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3236
LEGAL COMPILATION—GENERAL
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GUIDELINES AND REPORTS
3237
National Parks
Park, State
Established Authorized
Gross ares
asJaWislieit as Ufayetts
"
MMiMtnt in 1937; redesigiwtea
Nationsl Monument in 1908; estaWishtd
Crand Canw NaiioMl M
Hote Nalional MonBW8i!t, v
-------
3238 LEGAL COMPILATION—GENERAL
this battle, which attracted nationwide press coverage and lasted sev-
eral years, the losers were the National Park supporters led by John
Muir and the Sierra Club. As it has turned out, Hetch Hetchy proved
to be the last dam built within the boundaries of a National Park,
although strong efforts were later made for dams in Yellowstone and
in Dinosaur National Monument and for dams on the Colorado
River that would affect Grand Canyon National Park. In defeat,
however, Muir had the last word when he wrote that "the conscience
of the whole country has been aroused from sleep."
starting the national park service
In 1916, after several years of legislative attempts, the National
Park Service was established by the Congress as a bureau of the De-
partment of the Interior, thanks largely to the persistence of Stephen
T. Mather, who became the first National Park Service Director. The
16 existing National Parks and 21 National Monuments administered
by the new agency had fewer than 400,000 visitors in 1916, and the
entire budget for the new directorate, including salaries, travel, and
office expenses was $19,500, together with about half a million dollars
for operating all the parks and monuments.
Written into the National Park Service Act was a statement of
purpose that has stood the test of time—but not without causing
problems: "to conserve the scenery and the natural and historic ob-
jects and the wildlife therein and to provide for the enjoyment of the
same in such manner and by such means as will leave them unim-
paired for the enjoyment of future generations." al In 1916, there was
no apparent contradiction in conserving the areas for the enjoyment of
the people and leaving them unimpaired for future generations. The
struggle in those years was to find ways of getting people to the
parks, of building a public base of support, and of getting the Con-
gress to provide money for operations, to acquire new parks, to pro-
tect existing parks from commercial development, and to prevent
overenthusiastic Congressmen from establishing National Parks out
of areas in their States which did not qualify for National Park
designation.
Mather, perhaps more than any other individual, deserves the
credit for carving out a major role for the Park Service in the Federal
recreation and land management hierarchy. A retired Borax mining
official, he had written a letter of complaint to a former college
friend, Interior Secretary Franklin K. Lane, about the way that
National Parks were being operated. When Lane wrote back that
Mather should come to Washington and do something about it,
Mather did—in 1915. He first became Special Assistant to the Secre-
tary of the Interior before taking over the newly established National
Park Service in 1916. Independently wealthy and willing to spend
his own money to promote parks, a wilderness advocate and personal
friend of industrial and political leaders, he found the secret of
attracting attention to parks and park problems by inviting national
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GUIDELINES AND REPORTS 3239
political and industrial figures and leading writers to join him in
back-country camping expeditions into the National Parks, He en-
couraged railroad presidents to improve service to the parks
and found concessioners willing to improve and expand tourist
accommodations.
At one point, Mather and Horace Albright (who had been Assist-
ant National Park Service Director from 1916 to 1919 before becom-
ing Superintendent of Yellowstone) threatened to resign when the
Bureau of Reclamation succeeded in persuading Secretary Lane to
back a series of dams in Yellowstone.12 Although the bill passed the
Senate,13 Mather and Albright's vigorous opposition helped to defeat
the project in the House. Mather was also responsible for profes-
sionalizing the field staffs, in particular, the park rangers, placing
them under Civil Service.
The coming of age of the automobile and the highway system gave
the National Parks the final boost that they needed to become
accessible to many citizens. Unrealized at the time, however, were the
problems of overcrowding, noise, and fumes that automobiles were
later to bring with them.
expanding the national parks
Over the years, while the number of National Parks increased
slowly, the Park Service expanded in other ways. Under the Antiqui-
ties Act of 1906," major natural attractions, some equally as unique as
areas set aside as National Parks, were added to the National Park
System under the classification of "National Monuments." These in-
clude Arches and Capitol Reef National Monuments in Utah (which
were officially made National Parks in 1971) ; Buck Island Reef Na-
tional Monument in the Virgin Islands, with its underwater trail; and
such outstanding scenic and historic areas as Death Valley (Calif.—
Nev.) ; Canyon de Chelly (Ariz.) ; Craters of the Moon, (Idaho) ;
Channel Islands (Calif.) ; Rainbow Bridge (Utah); and Katmai and
Glacier Bay in Alaska, both of which are larger than Yellowstone Na-
tional Park although classified as National Monuments.
In 1933, nearly all Federal parks were placed under administration
of the National Park Service, 15 including 15 National Monuments
previously administered by the Department of Agriculture and 48 Na-
tional Monuments, historical parks, battlefields, and cemeteries pre-
viously administered by the Department of War. In addition, the pub-
lic parks, parkways, and buildings of the national capital were trans-
ferred to the National Park Service. The Historic Sites Act of 1935 16
established a national policy of preserving historic sites of national sig-
nificance under the administration of the National Park Service. The
Park, Parkway and Recreation Study Act of 1936 1T expanded the role
of the Park Service into intensive outdoor recreation through national
planning based on a nationwide inventory of recreation needs. In the
same year, the Congress authorized continuation of the Blue Ridge
Parkway, which had been started in 1933. The Congress had author-
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3240 LEGAL COMPILATION—GENERAL
ized the Rock Creek and Potomac Parkway (D.C.) in 1913 and the
George Washington Memorial Parkway (Va., Md., D.C.) and Co-
lonial Parkway (Va.) in 1930, but the Blue Ridge Parkway was the
first to extend hundreds of miles. In 1937 the system was further ex-
panded to include: seashore recreation when Cape Hatteras (N.C.)
was established as the first National Seashore; the first National Rec-
reation Area—Lake Mead (Ariz.-Nev.) in 1936; the first National
Scenic Riverway—Ozark (Mo.) in 1964; the first National Lake-
shores—Indiana Dunes (Ind.) and Pictured Rocks (Mich.) in 1966;
and the first National Scenic Trail—the Appalachian Trail in 1968.
World War II severely set back the growth and progress of the
Park Service. The operating budget dropped from $21 million in 1940
to $5 million during the war. After the war, National Park use
began to soar. By 1954, the National Park System was absorbing 54
million visits a year with a level of staff and facilities designed for
the 17 million visits of 1940. During the "Mission 66" program (from
1956 to 1966), $1 billion was invested to rejuvenate the parks and
add Park Service personnel.
Yet even as the parks were being expanded, a more basic problem
was surfacing. In the past the stimulus had been to provide the fa-
cilities and to encourage people to visit the parks. But by the end
of the Sixties, the increase in visits was becoming so extensive in
some parks that the quality of the visit itself was declining and the
preservation for future generations of a pristine ecology was being
threatened by masses of people, by roads, by overnight accommoda-
tions, and by service facilities and other developments needed to
take care of them.
One of the distinguishing features of the National Parks in this
country is the emphasis traditionally given to "interpretation," or
educational programs. Since the first interpretative services were
introduced at Yosemite in 1920—guided nature walks, campfire lec-
tures, and museum exhibits—interpretation has been regarded as a
primary responsibility of the park administration and a key to visitor
enjoyment and understanding.
In the last 6 years, the Congress has authorized a number of out-
standing large new National Parks—Redwood in California, North
Cascades in Washington, Guadalupe Mountains in Texas, and Voy-
ageurs in Minnesota, as well as many Historic and Recreation Areas.
None of the new National Parks is as yet adequately staffed and
some are not yet ready for visitors. But the recreation demand con-
tinues to grow—with visits to all operational National Park Service
units increasing from 121 million in 1965 to 201 million in 1971.
national parks' role in recreation
The fact that many citizens consider a visit to a National Park as
the highest-quality recreation experience available puts an unusual
burden on National Parks to absorb more than a normal amount of
the Nation's outdoor recreation demand. The National Park Service,
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GUIDELINES AND REPORTS 3241
with its 30 million acres (15.3 million of it in the 38 National Parks),
has only one-fifteenth of the total Federal recreation land, and less
than 5 percent of that is developed for mass use by park visitors. Yet
on this limited base the National Park Service absorbs almost 20
percent of the recreation visitation to Federal areas.
While the Government in 1970 reported 837 million visits to
Federal recreation areas, many more citizens were seeking recreation
at State, county, city, and private recreation sites, which ordinarily
were nearer their homes. The National Conference on State Parks,
National Recreation and Parks Association, reports that in 1970 (the
latest year for which data are available) about 482 million visits were
made to State recreation areas. The Bureau of Outdoor Recreation
of the Department of the Interior estimates that 1.5 billion visits
were made in 1970 to county and city park areas.
Often unnoticed in assessing recreation use is the large number
of people who enjoy their outdoor recreation at privately owned
areas. A 1965 Bureau of Outdoor Recreation survey18 estimated 2.6
million private enterprises involved with outdoor recreation, using
about 491 million acres of land. These private areas received more
than 1.9 billion visits per year. Many such facilities are provided only
as a small part of a total business operation and receive very little
if any financial investment in maintenance, operation, or develop-
ment. Thousands of commercial enterprises, however, provide out-
door recreation facilities or services on a full- or part-time basis. Non-
profit clubs and quasi-public organizations help meet the outdoor
recreation needs of their members. Industries open millions of acres
to the public for some types of public recreation or to provide recrea-
tional opportunities for their employees. And about 1 million farms
are open to public hunting and fishing. However, many private areas
offer insufficient attraction to visitors to compete with public sites.
The Bureau of Outdoor Recreation estimates that as of 1970, pub-
lic and private outdoor recreation area visits per year totaled about
4.8 billion. As of 1965 (the latest statistics available), land areas
approaching 1 billion acres were used either entirely or in part for
outdoor recreational purposes. (See Table 2.)
The problem of the National Parks in attracting such a large
share of the Federal outdoor recreation use on extremely limited area
is intensified bv the further gravitation of visitors toward only a small
number of major tourist choices such as Yosemite Valley, Yellow-
stone, and the Grand Canyon—especially in the summer months. It
is possible that when the newest National Parks are fully developed
and others are added in the future, they may take some of the pres-
sure off the "star" attractions. However, there is a limit of potential
park acquisition lands meeting National Park quality standards that
could be acquired.
Among potential new National Park areas which are now under
study by the National Park Service are several extensive areas in
Alaska. Under the terms of the Alaska Native Claims Settlement Act
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3242 LEGAL COMPILATION—GENERAL
Million Percent Million visits Pereent
3
of 1971, the Secretary of the Interior has set aside for study 80 mil-
lion acres thought suitable for National Parks, National Forests, Na-
tional Wildlife Refuges, and National Wild and Scenic Rivers. An-
other 45 million acres withdrawn under the "public interest" provi-
sions of the Act is also under study. The potential new National Park
areas are to be identified by the Secretary in September 1972, and
legislation must be submitted to the Congress for the new parks by
December 1973. It is expected that new National Parks in Alaska
will more than double the land area now set aside in the 38 existing
National Parks.
urban emphasis
A new direction of Federal policy in the last 3 years has been to set
a high priority on providing recreational opportunities close to major
urban centers, with large increases in the Land and Water Conser-
vation Fund. In 1971, President Nixon sent to the Congress legisla-
tion to authorize a Gateway National Recreation Area encompassing
water, beach, and estuarine areas of 23,000 acres around the en-
trances to New York Harbor. The legislation has passed the Senate.19
In February 1972, the President sent the Congress a similar proposal
for the West Coast—to establish a Golden Gate National Recreation
Area in and around San Francisco, including lands north and south
of the Golden Gate Bridge.20
Other urban-oriented recreation areas are under study by the Na-
tional Park Service. It is apparent that in the future much of the
thrust of recreation demand will need to be channeled to areas such
as the "Gateways," the already established National Seashores at
Assateague Island (Md.-Va.), Cape Cod (Mass.), Cape Hatteras
(N.C.), Cape Lookout (N.C.), Fire Island (N.Y.), Gulf Islands
(Fla.-Miss.), Padre Island (Tex.), and Point Reyes (Calif.), at the
several National Lakeshores and National Recreation areas such as
Lake Mead (Ariz.-Nev.), Glen Canyon (Ariz.-Utah), and the yet-
to-be-developed Delaware Water Gap (Pa.-N.J.)—most of which
are reasonably near urban centers of population.
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GUIDELINES AND REPORTS 3243
Another way of extending National Park resources to take in
more visitors would be to extend roads and increase campgrounds,
lodges, and service facilities. But these activities would be at the ex-
pense of maintaining intact the unique natural resources.
meeting increased recreation demands
Even with new urban recreation areas and with increased citizen
use of National Parkways and National Historical Areas, the "crown
jewels"—the unique National Parks—will still be under demands
that cannot be met without restricting their use.
With more leisure time, more population, better transportation,
and higher incomes, recreation demand on National Parks will auto-
matically increase. Also, as environmental education programs ex-
pand to reach residents of less affluent urban areas, interest in Na-
tional Parks will be stimulated among those who now are not fully
aware of the values and opportunities they offer. Middle-income
Americans make up the bulk of those who now visit National Parks.
As average incomes rise and transportation becomes more readily
available, the total source of park visitors will vastly expand.
national forests—Numerous opportunities for outdoor recreation
are available from the public lands administered by other Federal
agencies. The Nation's system of National Forests, established under
President Theodore Roosevelt in 1905, has been the source from
which a number of National Parks have been established. The land
set aside as National Forests far exceeds that committed to National
Parks, covering 181 million acres, in addition to another 6 million
acres of National Grasslands. In 1971, outdoor recreation use of Na-
tional Forests and Grasslands amounted to 180 million visitor days.
(A visitor day consists of one person for 12 hours, or equivalent ratio.)
About 60 percent of this use was for such activities as sightseeing, hik-
ing, mountain climbing, and hunting, none of which requires special
facilities or developments. Opportunities for recreation are available
at 84,000 miles of fishing rivers and streams; 15,000 natural lakes
covering 1.5 million acres and 3,200 reservoir impoundments cover-
ing over 1 million acres; 100,000 miles of trails; and over 200,000
miles of Forest Highways and National Forest development roads.
In addition, almost 15 million acres of National Forest land is man-
aged as wilderness, where motorized use and development are not
allowed.
The remaining 40 percent of all National Forest and Grassland
recreation use requires some kind of special development or fa-
cilities. Examples include camping and picnicking, swimming, boat-
ing and waterskiing, downhill snow skiing, organized group activi-
ties, hotels, lodge and resort activities, and visitor information activi-
ties. Opportunities for these activities include almost 7,000 camp and
picnic grounds which can accommodate more than 500,000 people at
one time, 1,100 boating and swimming sites, 500 observation and
viewing areas, and 600 visitor and interpretive sites. These facilities,
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3244 LEGAL COMPILATION—GENERAL
together with supporting services, are provided and maintained by
the Forest Service.
Additional recreation opportunities are provided by concessioners
operating under special use permits issued by the Forest Service. The
facilities are developed with private investment under close observa-
tion and approval of the Forest Service.
Many Forest Service areas are located adjoining or near National
Parks and are a potential source for recreation opportunity. Although
not so highly publicized as National Parks, a number of the National
Forests are scenically unique in themselves. And several Forest Serv-
ice areas, such as the Boundary Waters Canoe Area in Northern
Minnesota, have had heavy recreation demands in recent years
which resulted in pollution and overuse of campsites.
corps of engineers—The U.S. Army Corps of Engineers also plays
a major role in outdoor recreation. Corps reservoirs provide about 10
million acres of land and water, plus another 1.7 million acres which
are leased to local and State governments for fish and wildlife pur-
poses. In 1970, attendance at Corps facilities reached a total of 275
million visitors participating in water-related activities, including
43 million campers.
bureau of land management—A relative newcomer in the recrea-
tion field is the Department of the Interior's Bureau of Land Man-
agement (BLM). Since 1960, when BLM provided its first camping
and picnicking site in western Oregon, the agency has developed 684
recreation sites in 11 western States and Alaska. The Bureau actually
has more public land under its management than any other Federal
agency, with a total of 453 million acres, which includes 10 million
acres of natural lakes and reservoirs, 62,700 miles of fishing streams,
and 8,800 miles of trails. During 1971, an estimated 69 million visits
were made to BLM areas for recreation uses such as camping,
picnicking, fishing, hunting, sightseeing, water sports, and winter
sports. In May 1972, Secretary of the Interior Rogers C. B. Morton
gave special recreation designation to 2.7 million acres of BLM land
in the California desert, withdrawing the land from mineral entry
and setting it aside as natural areas, archeological sites, primitive
areas, and recreation lands.
wildlife refuge system—The Bureau of Sport Fisheries and Wild-
life of the Department of the Interior administers the National
Wildlife Refuge System. Comprising some 330 units on 30 million
acres of land, this system safeguards a national network of lands and
waters sufficient in size, diversity, and location to ensure the protec-
tion of wildlife of all types. Although the National Wildlife Refuges
are designed to protect wildlife, recreational activities are allowed
on many of them when such activities do not conflict with the primary
wildlife activities. Most of the recreational use is in the spring and
fall when the waterfowl migrations are most spectacular. Public
visitation to the National Wildlife Refuge System in 1971 exceeded
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GUIDELINES AND REPORTS 3245
22 million. Almost 70 percent of recreation use was wildlife oriented,
such as interpretation, fishing, and hunting, while the remaining 30
percent included such nonwildlife activities as boating, swimming,
and picknicking. A number of refuge areas have been designated
wilderness areas.
tennessee valley authority areas—The Tennessee Valley Author-
ity has made extensive investments in recreation facilities and im-
provements on TVA lakes and lakeshores. Capital improvements
amounting to $310 million include investments in lakeshore home
developments, commercial recreation areas, and areas developed by
State and local public agencies. Over 47 million visits were made to
these areas in 1971. TVA has turned over to States or nonprofit
organizations 170,000 acres of land for recreational use. In addition,
TVA has developed the 170,000-acre Land Between the Lakes
Project between Kentucky Lake and Lake Barkely in West Kentucky
and Tennessee, which attracted over 1.5 million visitors in 1971.
outdoor recreation plan—The first Nationwide Outdoor Recreation
Plan ordered by the Congress in 1963 21 is being prepared by the
Department of the Interior and is now scheduled to be ready by 1973.
The Nationwide Plan is expected to furnish supply and demand data
on which to base future decisions. In an effort to gain knowledge of
citizen needs for outdoor recreation, the Interior Department in June
conducted a series of public forums across the Nation which included
participation by non-Federal Government officials and representative
citizen organizations and individuals.
revenue sharing—Revenue sharing legislation proposed by Presi-
dent Nixon would, if passed by the Congress, give States and cities
funds which they could use to develop and maintain park areas and
recreation programs. Expansion of State and local recreation oppor-
tunity has already been aided by expanded Federal contributions
through the Land and Water Conservation Fund. In the last 2 years,
3,800 matching grants have been made, totaling $300 million. About
one-third of these grants have been used to support recreation in
metropolitan areas.
expanding private enterprise—Private enterprise must also expand
its capacity for recreation. The need is greatest for quality recreation
opportunities that can begin to draw away from the overloaded
national and State parks those people who .would be satisfied at
private parks or campgrounds but who now resist going to private
sites that are often only crowded trailer parks.
environmental quality in national parks
The U.S. National Park System, while at the height of its popular-
ity and envied by much of the world, is plagued by some severe
environmental quality problems. The great expansion of the last 10
years—91 new areas have been added—has, together with a doubling
of visits (from 99 million in 1962 to 214 million projected for 1972),
strained the ability of the National Park Service to provide the serv-
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3246 LEGAL COMPILATION—GENERAL
ices necessary for a high-quality experience for visitors or to protect
the park resources adequately.
effects on the parks
The quality of the park experience is being eroded both by de-
velopments within and by influences without. Traditionally, the Park
Service has followed an "open door" policy, freely allowing all per-
sons to enter and enjoy the parks. In the past it was possible to ac-
commodate the broad spectrum of park visitors, from wilderness
explorers to those preferring to remain in their automobiles. Now, in
some parks the sheer number of visitors pouring through the entrance
stations at peak periods has begun to interfere with enjoyment of the
park experience.
In many parks, developments—roads, hotels, large campgrounds,
stores, laundromats, gas stations—which were built to provide neces-
sary services for visitors have become centers of attraction themselves,
congested areas which at times resemble suburban shopping centers
on Saturday afternoons.
In addition, the buildup of Park Service personnel and concession
staffs to take care of the visitors has required large-scale sewage sys-
tems and other utilities, hospitals, schools, and maintenance facilities
for permanent buildings and utilities. Grand Canyon and Yosemite
Valley villages are similar to small cities in the goods and services
that they require.
Within the 5 percent of the area of Yellowstone National Park that
receives most of the visitor use, the developments include 750 miles of
roads, 2,100 permanent buildings, 7 amphitheaters, 24 water systems,
30 sewer systems, 10 electric systems with 93 miles of transmission
lines, and a number of garbage dumps. There are 54 picnic areas,
3,143 campsites, and 17,000 signs. Hotel and cabin accommodations
are available for 8,586 people each night.
At Mesa Verde National Park, the crowds at the major cliff dwell-
ings became so large that people were barred from going inside be-
cause of damage to the structures. Then unrestricted visits to the ruin
were stopped and ranger-guided tours provided. Next the size of tour
groups was cut down. Finally, a reservation system was set up and
a visitor limit per tour set. Further, to lessen congestion on narrow
roads, all trailers have been barred from the major ruin area.
At Great Smoky Mountains National Park, automobile traffic
jams have brought on the first traffic light within a National Park.
At Grand Canyon and Yellowstone National Parks, commercial
sightseeing flights taking tourists over key park sites have produced
visual distractions and noise. At Rocky Mountain National Park, fra-
gile areas of alpine tundra close to roads have been damaged by exces-
sive use.
Serious crime in National Parks rose 153 percent from 1966 to
1970, compared to a 71 percent increase nationally. Vandalism is fre-
quent. In one recent year, 361 people were caught trying to leave
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GUIDELINES AND REPORTS 3247
Petrified Forest National Park with illegally lifted artifacts. Repairing
vandalized facilities costs $1 million annually. The defacing of some
features, such as Indian cliff carvings, has incurred irreparable
damage.
The influx of people to the National Parks is not so environmen-
tally damaging as the cars or trailers in which they arrive. Cars bring
congestion, noise, and air pollution. The plethora of camper vehicles,
especially on narrow park roads, holds up traffic and leads to a clamor
for wider roads. Badly planned and often unsightly satellite develop-
ment areas—motels, gas stations, bowling alleys, drive-in movies—on
the approaches or edges of National Parks add to the problem. Even
back-country trails and campsites are showing signs of environmental
damage from overuse and pollution.
effects on wildlife
Overcrowding in parks and thoughtlessness of some visitors have
affected wildlife. Some people ignore park regulations and feed wild
animals. Others, wanting to take a photograph, chase the wildlife.
The variety of wildlife populations and their availability for view-
ing by park visitors have also suffered. Migration routes have been
chopped off by developments outside the park, thus confining migra-
tory animals to an unnaturally small area. The increased activity of
humans in developed areas of parks tends to frighten some species
away from areas in which they might be seen from roads or trails.
The predator populations of a number of parks, especially wolves and
mountain lions, were removed in large numbers decades ago for lack
of a full knowledge of their role in park ecology. A number of grizzly
and black bears which have entered campgrounds or tourist-centered
areas in search of food have caused problems. In rare cases in which
they threaten visitors, a few animals have had to be killed. Poaching
of wildlife is still a problem at some parks and has been especially
serious at Wind Cave (S. Dak.), Mount McKinley (Alaska), and
Everglades (Fla.), National Parks.
air pollution
Although, by definition, National Parks are examples of unspoiled
wilderness, untainted by the progress of civilization, none is in fact
"pure." Yellowstone, once the source of pure air sampled by re-
searchers for comparison purposes, now has air that is contaminated
by auto exhaust fumes. Each park is being degraded to some degree by
the relentless spread of pollution. Death Valley National Monument
experiences the smog drifting in from Los Angeles 170 miles away.
The forests of Glacier National Park are being damaged by fluoride
gas emissions from an aluminum plant 10 miles from the park border.
Pesticide residues draining from the agricultural lands of southern
Florida have greatly raised the concentrations of chlorinated hydro-
carbons in Everglades National Park with adverse effects on the park
ecosystem.
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3248 LEGAL COMPILATION—GENERAL
water pollution
Another Everglades problem has resulted from man's interference
with the regular surface flow of fresh water into the park. It is esti-
mated that 1.5 million wading birds inhabited the park when it was
established in 1947. The park wading bird population today is about
50,000 as the result of a series of droughts, diversion of the park's
normal flow of fresh water, and agricultural and urban demands. A
1970 Act of Congress,22 providing that the U.S. Army Corps of En-
gineers furnish from water impoundments north of the park the mini-
mum fresh water flow annually necessary for the park's existence, has
helped these and other wildlife survive the 1970-71 drought and fires.
proposals for change
national park service activities
Man's increasing impact on the beauty, primitiveness, and tran-
quility of the National Parks has brought the country face to face with
the need to protect the ideal born 100 years ago around the campfire
at Yellowstone. The goal to make the parks available to all—to enrich
and educate an urban society on its natural heritage—conflicts with
the goal of preserving the parks in a pristine state. The solution to
this dilemma will demand a high level of creative management. To
do less may result in unnecessarily roping off the parks to many
Americans or to see them further deteriorated from overuse. Better
management and interpretive programs can, in some parks allow
some increased use with no harm to the environment. In a num-
ber of parks, however, the limit has already been reached, and some
form of restricted use must be imposed. In those cases, visiting a Na-
tional Park, like going to a public concert, must be accepted as a
privilege and not a right which must be made available to all citizens
at times of their own choosing.
The Park Service has undertaken a number of projects to improve
the quality of park environments in those park areas where conges-
tion threatens to erode both the resources and visitor enjoyment. In
many parks, visitor use can be expanded without damaging the en-
vironment by using buses or other forms of mass public transit. The
road system at the east end of Yosemite Valley has been closed and a
free shuttle bus system introduced. This has drastically transformed
a crowded, noisy, smoggy section of the park into a quiet area with
most visitors now walking along trails and many riding bicylces. At
the Shark River Overlook Loop Road in Everglades National Park,
a tram service has been initiated to keep private automobiles off the
narrow one-way road. Each vehicle movement disturbs birds in this
area of dense wildlife, but birds can adjust if the vehicles are few
enough. At Mount McKinley National Park in Alaska large crowds
were anticipated this summer when the first highway from Anchorage
to Fairbanks was due to open. The major dead-end road inside the
park has always been one of the greatest wildlife viewing areas in the
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GUIDELINES AND REPORTS 3249
National Park system, alive with grizzly bear, Ball sheep, caribou, and
many other animals, all clearly visible from the road. To prevent the
wildlife from being disturbed and fleeing the road area, the Park
Service is eliminating private automobile traffic along much of the
road and instituting a public bus system.
Yosemite National Park now has an experimental campground
separated from automobile or trailer parking where only small tents
or sleeping bags are permitted, and a minimum fee of 25 cents a
night is charged. Overflow camping—use of land unauthorized for
campsites—now is prohibited throughout the National Park System.
Essential to the future well-being of the National Parks is public
understanding and support. The Park Service policy of holding pub-
lic hearings on all park master plans should be helpful in generating
public involvement. What may seem to be a vast and indestructible
wilderness is actually an extremely vulnerable and delicately balanced
system.
Some interpretive programs in the parks have already been given
a new orientation. Rather than dealing separately with wildlife or
geysers or Indian cultures, the programs deal with the total ecology
of the region. The Service's environmental education program is
readying teaching guides for elementary and high school curricula.
And the Service has already established Environmental Study Areas
on park lands, including historical parks, for school systems to use.
The Park Service, through its informational activities, is attempting
to divert visitors from heavily used areas during peak seasons. Visi-
tors are diverted if possible to the lesser-known areas of the National
Park System to avoid crowding into parks that they have already seen.
In a nearby National Recreation Area, for example, they may find
more water recreational pursuits than in a National Park. The Park
Service also points out to visitors that off-season travel is usually less
expensive, less crowded, and generally just as enjoyable as summer
park trips. Late spring and early fall are ideal in most northern and
central latitude parks.
The new master plans for Yellowstone and Grand Teton National
Parks would set up visitor centers near the park boundaries. At the
centers, visitors could find lodging and service facilities, interpretation
of area attractions^ help in planning their trips, and advice on other
Federal recreation areas in the vicinity if space were not available in-
side the parks. Also planned are parking and mass transportation fa-
cilities at these gateway centers so that people can leave their cars
and take buses or mass transit vehicles to the recreation area.
Studies are now underway to determine how the "carrying capac-
ity" of each park might be denned. This will involve working out levels
of use that can be tolerated, both by the visitor and by the resource.
Establishing these levels of tolerance will require a mix of professional
skills working to identify levels of use that will not impair the ex-
perience of visitors or damage the park. On an experimental basis,
wilderness use is being restricted during the 1972 summer season at
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3250 LEGAL COMPILATION—GENERAL
Rocky Mountain, Sequoia, Kings Canyon, and Great Smoky Moun-
tains National Parks. In these areas where extensive use of the back
country has begun to diminish wilderness values, the number of peo-
ple allowed on the trails is being cut back. The outcome of these ex-
periments will guide similar policy in other wilderness parks. Back-
country area campers are now required to haul out their own trash
and garbage.
Another policy objective of the National Park Service is to preserve
for future generations as many examples as possible of varied types
of ecological communities that existed in and made up primi-
tive America. A small research program seeks to describe the ecolog-
ical conditions that should prevail within the parks and to search out
those management methods needed to maintain or recreate those
ecological conditions. In 1962, an Advisory Board on Wildlife Man-
agement, composed of leading scientists and conservationists, re-
ported to the Secretary of the Interior that: "A national park should
represent a vignette of primitive America."
The Board, headed by Dr. A. Starker Leopold, recommended that
research be undertaken so that maintenance of ecological conditions
might be accomplished effectively.
citizen suggestions
As part of the 1972 celebration of the centennial of Yellowstone's
founding, the National Park Service commissioned a study of pres-
ent and future problems and issues facing the National Parks System.
More than 30 leading conservation professionals and laymen spent 3
months visiting the parks. Their preliminary report—National Parks
for the Future—was published in March 1972. In April, a group of
200 conservation professionals, citizen leaders, and youths met for 3
days with Park Service officials at Yosemite to discuss and comment
on task force studies and to make additional recommendations. The
Conservation Foundation, which carried out the studies for the Park
Service, is scheduled to make its final report in August 1972.
The citizen advisers suggested that preservation rather than recre-
ation be the central focus of the National Park Service in the next
hundred years. They suggested that hotel accommodations, private
automobiles, and car camping be restricted or eliminated wherever
possible.
They urged the Park Service, in developing master plans for each
park, to consider the areas outside the park boundaries where often
unsightly development can significantly blight the quality of the
environment for a park-bound visitor. The citizen group recom-
mended that the National Park Service devise an environmental
early warning system to spot emergencies and respond to them. The
Director of the Park Service was urged to make an annual environ-
mental report similar to the Annual Report of the Council on En-
vironmental Quality in which there would be included for each
park an annual "park environment report." These reports would
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GUIDELINES AND REPORTS 3251
identify, analyze, and comment on changes and trends in the park
and in the influence zone outside its borders.
national parks worldwide—a force for peace
and understanding
The action of the United States in 1872 in setting up a National
Park at Yellowstone and in starting the National Park Service in
1916 has spread throughout the world. Canada, in enlarging the
Banff Reservation in 1887 and setting aside that unique scenic area
as a National Park, used wording almost identical to the Yellowstone
Act. Canada authorized a National Parks Agency in 1911 and now
has 28 national parks totaling 32 million acres.
By the turn of the century, Australia, New Zealand, and Mexico,
as well as Canada, had established national parks. The Tongariro
National Park in New Zealand was established in 1894. The Nether-
lands patterned the Udjun Kulon Reserve in Indonesia after the
American example. The first national park in Africa, the Albert
National Park in the Congo, was established in 1925 and was the first
park devoted to systematic scientific research. Japan started an exten-
sive system of national parks in the 1930's. Some of the finest national
parks in the world now exist in East Africa, with Uganda, Tanzania,
and Kenya all having extensive systems. In 1967, the United Nations
List of National Parks and Equivalent Reserves showed 1,024 na-
tional parks in 95 nations. Today more than 100 countries have na-
tional parks or equivalent reserves.
u.s. assistance
Many countries have asked help from the United States in plan-
ning their national parks or setting up reserves. The U.S. National
Park Service has sent advisers to more than 25 countries, and more
than 50 countries have sent experts to the United States to seek in-
formation and guidance and to discover, by studying U.S. parks how
to work out their park problems. An international course in admin-
istration of national parks and conservation areas is held each year,
sponsored by the U.S. and Canadian Park Services and the University
of Michigan. At each course, approximately 35 park workers and ad-
ministrators from all parts of the world study at first hand in U.S.
and Canadian national, State, and provincial parks. A World Con-
ference on National Parks, held in Seattle in 1962, was attended by
145 delegates from 63 nations, and a Second World Conference, to
be held in September 1972 at Yellowstone and Grand Teton National
Parks, is expected to draw 500 delegates from more than 90 countries.
international cooperation
International cooperation for preservation of national parks and
unique natural areas is also taking place on many fronts. A number
of countries that share common borders have national parks facing
each other, although cooperation in sharing these park areas has been
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3252 LEGAL COMPILATION—GENERAL
extremely limited. The United States and Canada, which have had
a Waterton-Glacier International Peace Park on the border between
Canada's Waterton Lakes National Park and the United States'
Glacier National Park since 1932, have only very limited arrange-
ments for making the two parks available for joint use.
world heritage trust
President Nixon, in his 1971 Environmental Message to the Con-
gress, proposed that certain natural, historical, and archeological
areas having unique worldwide value should be treated as part of
the heritage of all mankind and should receive special recognition as
a part of a World Heritage Trust. Such an arrangement would im-
pose no limitations on the sovereignty of those nations which choose
to participate but would extend special international recognition to
the areas which qualify and would make available technical and other
assistance to help in their protection and management.
In accord with this directive, the United States has been working
with other nations to create a World Heritage Trust. A convention
for this purpose has been drawn up and will be submitted to a U.N.
Educational, Scientific and Cultural Organization (UNESCO) con-
ference in October for adoption. At the U.N. Conference on the
Human Environment held in June at Stockholm the delegates in
plenary session acknowledged that the draft convention "marks a
significant step towards the protection, on an international scale, of
the environment." They voted overwhelmingly to invite governments
to examine the draft convention "with a view to its adoption at the
next General Conference of UNESCO."
Stockholm conference
Two actions were also taken at the Stockholm conference to im-
prove national parks. The conference recommended that the United
Nations Secretary-General take steps to ensure an appropriate mech-
anism for nation-to-nation exchanges of information on national park
legislation and planning and management techniques. It also recom-
mended that governments and the Secretary-General pay special at-
tention to training requirements for national parks. It urged support
for integrating aspects of national parks planning and management
into courses on forestry and other subjects. It recommended helping
schools offer courses in national parks management at a medium-
grade level, particularly in Latin America and Asia.
worldwide activities
Battles are still being fought worldwide on the national park scene.
In Colombia the rapidly emerging park system has been threatened
by petroleum exploration and by proposals to build excessive num-
bers of hotels too near fragile beach and reef environments. The
Argentine Government has begun construction of a power dam and
reservoir inside Los Alerces National Park. In Tanzania a part of
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GUIDELINES AND REPORTS 3253
the Serengeti National Park has been made available for grazing
and settlement.
Yet local public support for national parks appears on the rise
worldwide. Costa Rica, for instance, has embarked on a comprehen-
sive campaign involving the Government, U.N. agencies, U.S. Peace
Corps, the press, the academic community, youth, and the general
public that is leading to rapid establishment of high quality, func-
tioning national parks.
IUOTO, the International Union of Official Travel Organiza-
tions (soon to become the World Travel Organization of the United
Nations), has cited natural areas as the number one destination
sought by tourists and master planning as the number one need to-
day in this field. Several countries are embarking upon master plan
projects. Venezuela is preparing a master plan for Canaima National
Park, the site of Angel Falls, the world's highest waterfall. Guate-
mala has master planned Tikal National Park, site of the largest
Maya Ruins. The government of the Seychelles Island, in the Indian
Ocean, has produced a "white paper" on national park policy and
plans. Nearly everywhere, especially in Asia and the Pacific, there is
mounting concern because of the impact of poor planning, pollution,
and overdevelopment on tourism.
conclusion
Ironically, in our love of the National Park ideal lie also the seeds
of its deterioration. In a nation whose citizenry is becoming more
environmentally aware, the possibility of overuse and damage to the
Nation's "crown jewels"—the National Parks—would be an ill-fated
irony indeed.
The American contribution to the world of the National Park
idea, now universally accepted and widespread, was a major advance
in the preservation of the best part of our surroundings. In the
United States, with full support, the Congress has expanded the
National Park System and broadened its mission.
But the very popularity of the parks has caused the overcrowding
and the gradual, subtle loss of environmental quality. To some the
original idea of preserving wondrous natural areas in their pristine
state has been compromised now in a desire to fulfill a mass recreation
role. Yet restricting use of parks runs against the goal of making these
crown jewels available to a broad spectrum of Americans, to enrich
them, and to help them understand our natural heritage.
Even in the overcrowding there is a larger environmental lesson.
Overuse of National Parks, like other environmental problems, results
from the wide range of pressures—technology, increasing population,
and an ever increasing standard of living. And like these other envi-
ronmental problems, creative solutions are needed that balance rea-
sonable use of these great assets with protection of their inherent
qualities. For the National Parks have become, though nobody
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3254 LEGAL COMPILATION—GENERAL
intended it that way, a test of our ability to protect natural areas
against the pressures of modern society.
The danger is that we may not heed the very warnings first sounded
in the parks. If not heeded, there might follow another chapter in
"The Tragedy of the Commons." 23 As postulated in a late 19th cen-
tury treatise, the multiplied individual use of a common pasture by
village residents would eventually destroy the pasture for all. The 21st
century chapter in "The Tragedy of the Commons" would be the
consequence of overusing the fragile areas, thus impairing forever the
qualities for which they were originally preserved.
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GUIDELINES AND REPORTS 3255
footnotes
1. George Catlin, North American Indians: Being Letters and Notes on
their Manners, Customs, and Conditions, written during Eight Years'
Travel amongst the Wild Tribes of Indians in North America, pp. 2-3,
1913 (Vol. I).
2. Id., pp. 289, 292-93.
3. ISStat. 325, June 30, 1864.
4. Frederick Law Olmsted, The Yosemite Valley and the Mariposa Big
Trees, A Preliminary Report, 1965, reprinted in Laura Wood Roper,
Landscape Architecture, October 1952.
5. Congessional Globe, Jan. 30, 1972, p. 697.
6. 17Stat. 32, 16U.S.C. § 21.
7. 17 Stat 32, March 1, 1872.
8. 17 Stat. 32.
9. 22 Stat. 626.
10. 30 Stat. 993.
11. 39 Stat. 535, 16 U.S.C. §2.
12. S. 2895, H.R. 12466, 66th Cong., 2d Sess.
13. S. 3895, Falls-Bechler reservoir bill.
14. 34 Stat. 235.
15. Exec. Orders 6166, June 10, 1933, and 6228, June 28, 1933, under 47
Stat. 1517.
16. 49 Stat. 666.
17. 49 Stat. 1894.
18. Chilton Research Series for the Bureau-of Outdoor Recreation, Private
Sector Study of Outdoor Recreation Enterprises, 1965.
19. S. 1852, H.R. 1121, amended.
20. H.R. 9498.
21. 77 Stat. 49.
22. P.L. 91-282, 84 Stat. 310.
23. Garrett Hardin, "The Tragedy of the Commons," Science, Dec. 13, 1968,
Vol. 162, pp. 1243-1248.
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GUIDELINES AND REPORTS 3257
the environment,
1972—a perspective
The Council's First Annual Report in 1970 predicted that the Na-
tion's quickening concern with environmental quality was no passing
fad. Our Second Annual Report in 1971 concluded that "the pursuit
of environmental quality has become a firm national commitment"
and "an integral part of our institutions and values." At the time of
the Council's Third Annual Report, it is clear how deeply engrained
the environmental ethic has become in American society. New insti-
tutions, new standards, and actions at all levels of government have
committed the Nation to a cleanup program that will cost billions of
dollars. Large-scale events such as the first Earth Day are being trans-
lated into courses and new environmental careers at campuses across
the country. The specter of "environmental backlash" is the inevi-
table result of the success of programs that require changes in atti-
tudes, actions, and investments. The drive toward a higher-quality
environment clearly has staying power.
This chapter draws upon the preceding chapters of the report to
look at environmental quality from a number of important perspec-
tives. First, it discusses the environment as a physical system and the
need to measure accurately and comprehensively the amount of
pollutants in the air and water, the uses of our land, the dissemination
through the food chain of toxic and persistent chemicals, as well as a
wide range of other impacts on the quality of the environment. Sec-
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3258 LEGAL COMPILATION—GENERAL
ond, it probes both the impact of our economic system on the quality
of life and the impact of the demands of environmental quality on
our economy. Third, it assesses the impact of institutions set up at
Federal, State, local, and international levels to deal with environ-
mental problems. Fourth, it underscores the immense and often
dimly forseen impacts of technological advances on the whole range
of environmental conditions. And finally, it discusses public percep-
tions of different kinds of environmental problems as an indicator
of the concern for solving various types of environmental problems.
Each of these perspectives is essential to understanding the progress,
conditions, and factors underlying the quality of the environment.
physical factors
First and foremost, the environment is a physical system. Despite
our extensive scientific accomplishments, we are only beginning to
understand how microscopic fungi or the great cycles that govern
the universe affect man and his survival. And we know little of the
impacts of pollution on man especially over long periods of time.- We
must measure the environment as we do the economy and develop
simple but meaningful indices of its quality. Only then will policy-
makers and the general public be able to understand fully the con-
dition of the environment, the success of public and private actions
already taken, and what remains to be done.
This year's report presents indices for air quality. Although admit-
tedly crude, they are a starting place from which to develop more
sophisticated indices. Next year the Council will refine these indicators
and develop indices for other important aspects of environmental
quality.
Available measurements show that the quality of air in our cities
improved between 1969 and 1970. This tells us that with sustained
efforts such as some urban areas have already made and the strong
Federal law now covering the entire Nation, real progress can be
made in combating air pollution. The data on water pollution, how-
ever, are less encouraging. Among other things, they indicate that land
runoff from farms and even urban land, as opposed to discharges from
cities and factories, has a much greater impact on water pollution
than we realized. In all types of river basins, the concentration of
nutrients, which can eutrophy our lakes, is increasing. These data in-
dicate that while we carry on our major efforts to clean up pollution
from municipal and industrial sources, we must increasingly turn our
attention to land runoff—of nutrients, fertilizers, pesticides, organic
materials, and the soil particles that often transport the others. If we
fail to do so, our expenditures for water quality will not achieve maxi-
mum improvement.
Data on other parts of our ecosystem are even more fragmented
and rudimentary. For example, we need to know much more about
how wildlife relates to the health of the entire environment. The
Smithsonian Institution has recommended a series of environmental
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GUIDELINES AND REPORTS 3259
quality indices based in part on the level of selected wildlife popu-
lations. But this is only a starting point for the difficult analysis that
lies ahead. We also need more meaningful information on land and
its use, on the flow of toxic substances and pesticides through the
environment, and on other aspects of the environment.
Our knowledge of the environment is still primitive, and our data
gathering systems and analytical efforts remain unsophisticated.
While indices of environmental quality are being developed, reliable
and timely monitoring systems must also be perfected. And more
finely focused research must be undertaken to better delineate the
relative importance of various factors in the overall quality of the
environment.
economics
The Council's Second Annual Report indicated that environmental
problems in large measure are rooted in the way that the economy
has traditionally operated—such as its failure to reflect the costs of
environmental damages. In turn, efforts to maintain and enhance the
quality of our surroundings affect the economy.
We have estimated that the capital and operating costs of meeting
current environmental standards over the 1970-80 decade will be
$287.1 billion. This cost in the aggregate is immense. However,
studies of 14 major industries, conducted for the Council, the En-
vironmental Protection Agency (EPA), and the Department of
Commerce show that during the 1971-76 period when the bulk of
these expenditures will be made, there will be no substantial impair-
ment of the viability of any of these industries. Some plants and
firms will reap lower profits, curtail production, or be forced to close.
But most of the firms or plants that will be shut down are marginal
operations. They are already in economic jeopardy because of other
factors such as obsolete facilities or poor location. At most, meeting
current environmental standards would accelerate their closing.
When total production costs are included in the prices of final
products, the market allocates resources efficiently. If, however, some
costs are not included—for example, the costs to society of environ-
mental degradation—then the prices of products are too low. Con-
sumption of products that are underpriced is higher than it would be
if all costs were included. As a result, too many resources are devoted
to their production rather than to other uses.
The common property resources—air and water—are not included
in the market exchange. They are used as free "dumps" for con-
sumption and production residuals. But such dumping exacts social
costs—in degraded air and water, impaired health, loss of fish and
wildlife, loss of recreational opportunities and aesthetic values, and
added costs of treatment necessary for downstream water users.
Environmental problems stem largely from this fundamental failure
of the economic system to take into account environmental costs.
The traditional measure of the market value of goods and services
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3260 LEGAL COMPILATION—GENERAL
produced by the economy—Gross National Product—was not de-
signed to reflect overall economic welfare. Environmental values are
not now incorporated in this accounting system. Many production
and consumption activities degrade the environment, polluting air,
water, or land. This degradation is a cost, but it is not subtracted
from the value of national output. The measure of output, then, over-
states the real value of additional production by the amount of the
environmental costs that are ignored. Conversely, when production
enhances the environment, the value of total output is understated.
We are seeing more clearly the many social costs of failure to check
environmental degradation. The failure of our economic system to
take these costs adequately into account in the past has spawned
some of the major environmental problems we face today—such as
the waste of resources that could be recycled.
International economics is also a vital element in environmental
problems. International trade issues still hamstring the world's de-
veloped nations in coping with environmental decay and cause prob-
lems between the developed and developing nations. The impact of
pollution control requirements on trade is one with which the na-
tions of the world must deal consistently or face significant and un-
justifiable trade distortions. The member nations of the OECD have
reached a number of agreements on cooperation and consultation
to keep environmental standards from becoming trade barriers. For
example, member nations have agreed on the "polluter pays" prin-
ciple that industry rather than governments should bear the costs of
pollution control. They have also agreed to joint consultation on
major regulatory activities that could effect trade.
Some of the developing countries have been wary of adopting en-
vironmental controls or agreeing to international controls which they
fear will slow down their economic development. They are concerned
that increased spending by the developed countries to improve their
own environments may cut into the funds available for foreign as-
sistance programs. Finally, these countries are apprehensive that
certain environmental actions or potential trends such as increased
recycling, lead-free gasoline, and stack gas sulfur recovery processes
could dampen the demand for the raw materials that many of them
possess in abundance and sell to the developed countries.
Although uniform international standards for environmental pro-
tection often are not justified, neither is any nation's disregard of
needed environmental controls. Such a policy is shortsighted eco-
nomically as well as environmentally. There is no evidence in the
United States of any relationship between domestic environmental
expenditures and the level of foreign assistance. Although environ-
mental actions by the developed countries could cut into resource
use somewhat, they are unlikely to cause any significant absolute de-
crease in overall demand for resources from developing nations. To
the extent that this should occur, however, it will be a reflection of
more efficient resource use—a type of economic dislocation not dis-
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GUIDELINES AND REPORTS 3261
similar to those that constantly take place in domestic and world
markets.
Economics plays a key part in our effort to achieve a high-quality
environment. Intelligent economic decisions and the wise allocation
of resources are prerequisites for achieving environmental goals.
The costs of effectively controlling pollution are well within the
capacity of the American economy to absorb, although there will
be some transitional problems. Our Nation's quest for environmental
quality can be attained without sacrificing a healthy, dynamic
economy. Failure to act would cost the Nation dearly in health
impairment, loss of recreational resources, and a decline in the
quality of life.
institutions
One very tangible measure of progress toward a high-quality en-
vironment is how we structure our institutions to deal with envi-
ronmental problems. Institutional changes are an important sign
of an issue's growth in importance and public recognition.
When an issue of public concern is perceived in its entirety rather
than by its components, this perception ultimately is reflected in
governmental organization. In the past, as problems have been
perceived to be distinct issues rather than subparts of other problems,
new departments and agencies have been created to deal with them.
This process has occurred for environmental quality activities. Air
pollution control programs historically have been the stepchild of
health agencies and water pollution control programs the wards either
of the same health agencies or of water resource agencies. Solid
waste management was considered a sanitation problem to be dealt
with by garbage trucks and dumps. Pesticides were considered only
an agricultural concern while environmental radiation was dealt with
in the overall context of atomic energy. Increasing noise, the spread
of toxic substances through the environment, and poor land use
practices were generally ignored because no agency was responsible.
As the public and responsible officials began to perceive the totality
of the environment and the inter-relationships of pollutants in all
media—air, water, and land—they also saw the need for organiza-
tional change. The Federal and many State governments have estab-
lished new comprehensive environmental agencies. The Federal Gov-
ernment and some States have also recognized the need for a broad
institutional framework and procedure—such as that established by
the National Environmental Policy Act (NEPA)—to guarantee that
the environment is respected in all governmental activities.
At the Federal level, the creation of the Council on Environmental
Quality, EPA, and the National Oceanic and Atmospheric Admin-
istration (NOAA) within the Department of Commerce have spear-
headed the institutional drive to carry out Federal responsibilities.
The value of equipping the President with an Executive Office staff—
the Council on Environmental Quality—to advise him, to coordinate
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3262 LEGAL COMPILATION—GENERAL
the multitude of environmentally related activities of the executive
branch, and to shape policies seems clear. The wisdom of centralizing
Federal antipollution enforcement in an Environmental Protection
Agency has been borne out in EPA's wide-ranging activities over
the past year. And the creation of NOAA permits a new focus on
understanding and protecting our vital atmospheric and marine
resources. The President's proposal for a Department of Natural
Resources would complete the institutional structure.
The National Environmental Policy Act has institutionalized a
basic reform in Federal decisionmaking. Its 102 process is a valuable
new mechanism to guarantee that Federal decisions will be made
systematically with environmental values fully in mind. The con-
crete results of this reform are already surfacing in Federal projects
modified or reconsidered and in Federal programs improved. NEPA's
mandate for coordination among agencies is helping the Government
to handle complex problems which are beyond any one agency's
responsibility.
During the past year, the Federal Government has taken a mul-
titude of important regulatory actions, and another major environ-
mental legislative program has been transmitted to the Congress
by the President. Many of the requirements of the Clean Air Amend-
ments of 1970 have been initiated. State plans for meeting federally
established ambient air quality standards have been acted upon by
EPA and approved in large measure as blueprints for achieving
clean air goals. Enforcement of current Federal laws and regulations
covering water quality and pesticides has continued at a vigorous
pace, and the first enforcement actions under the Clean Air Amend-
ments of 1970 are underway. These actions, built upon the newly
established institutional base, are forging tangible progress in the
Nation's struggle to bring pollution under control. But most of the
President's legislative proposals have not been enacted and in some
of the affected areas—especially water pollution control—there are
significant gaps in authority.
The States continue to experiment with a wide variety of innova-
tive approaches to environmental problems. This experimentation
is a critical resource for all levels of government to learn from and
to emulate. During the past year, States passed new laws to control
land use in and around critical ecological areas, assessed pollution
fees to pay for surveillance, and stepped up enforcement to stop pol-
lution. Many States have created entirely new organizations and
procedures to analyze their environmental activities and programs.
The understandable attention given to Federal and State activities
can overshadow both the very significant accomplishments of local
governments and the importance of the role that they play. They
bear a major share of the costs for environmental improvement in the
public sector—in sewage treatment and solid waste management.
Localities still carry a major burden of enforcement responsibility
in important areas, notably in air pollution and noise regulation.
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GUIDELINES AND REPORTS 3263
A number of efforts are underway now to deal with global en-
vironmental problems. The Stockholm Conference on the Human
Environment produced new agreements in a number of substantive
areas and created a permanent U.N. Environmental Secretariat and
a $100 million fund for environmental projects.
In the past year the need for bilateral and multilateral coopera-
tion was translated into four specific agreements, three of them in-
volving the United States. President Nixon and President Podgorny
of the Soviet Union signed an agreement for bilateral cooperation on
a broad range of environmental problems of importance to both
countries. The President signed, with Prime Minister Trudeau of
Canada, an agreement to restore and protect the Great Lakes. Presi-
dent Nixon and President Echeverria of Mexico issued a joint com-
munique on salt pollution of the Colorado River in which the United
States agreed to several measures to reduce salinity and to further
investigate the extent of the problem. Twelve European nations
signed a convention to regulate ocean dumping—an issue on which
the United States is actively seeking a worldwide agreement.
technology
The contemporary world is to a great extent determined by tech-
nology. Major technological changes can set in motion great popu-
lation shifts, determine development patterns, and create or solve
serious pollution problems. Population in the United States and
throughout the world is shifting from rural to urban areas because
modern farming technology allows fewer people to produce more
food. The automobile has set the pattern of development for all of
our major cities. It has also created significant air pollution problems,
while at the same time having prevented sanitation problems created
by the use of horses. Our massive and complex energy systems have
greatly increased our standard of living and given us a wide array
of conveniences, but at the cost of degradation of air, water, and
land. .
No technological changes have had more impact on the environ-
ment than changes in transportation. The advent of the automobile
greatly increased personal and economic mobility. The factories and
merchandising firms which had crowded within the cities were able
to obtain efficient transportation to move goods and supplies almost
anywhere. New industries were no longer limited to locating along
a river or railroad line. People were able to work in the city yet live
far away from it.
The scale and speed of technological change may well have out-
stripped the ability of our institutions to control and shape the hu-
man environment. The "spread city" shaped by the automobile is
dotted with numerous fragmented governments, each jealous of its
own prerogatives. But no governmental institutions exist with the
ability to reconcile conflict or to shape the destiny of the region. If
some order is to be brought out of the current chaos, State govern-
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3264 LEGAL COMPILATION—GENERAL
ments must assume a much larger role in land use and major develop-
ment decisions that have regional impact.
It is important to understand the emerging technologies of the
future and their implications for the environment and our way of
life. While the automobile gives us great mobility, electronic com-
munications allow us to become increasingly sedentary. Computers
are able to manipulate data in ways that the human minds cannot.
The development of new agricultural seed strains, fertilizers, and
pesticides allows us to expand agricultural production greatly; and
development of a wide range of minor technologies even allows us
to use electric power to brush our teeth and shine our shoes.
The pace of technological innovation is accelerating. We can fore-
see major new developments in ^communications, transportation,
energy production, biology, and medicine. We are already beginning
to try to comprehend the full impact of such new scientific innovations
as genetic manipulation.
Predicting what and how new technologies will shape the future
is a difficult task. There are numerous examples of the failure to
foresee new developments. In 1937, to take just one example, the
National Research Council undertook an extensive investigation of
future technological trends. But its report failed to foresee atomic
energy, radar, antibiotics, or jet propulsion, all of which were under
high-priority development or in practical use 5 years after the report
was issued.
Even more difficult than predicting future technological develop-
ments is assessing what the full impact of any particular technology
will be. We did not anticipate the extraordinary effect that the auto-
mobile would have on our living and working patterns, our economy,
and our health. We did not foresee that the persistence of some
pesticides would become a major environmental problem. Even the
simplest of innovations can have far-reaching ramifications. The in-
troduction of the fly screen in many less-developed nations has re-
duced disease and increased the population, thereby straining the
economy and fueling political instability.
Despite the difficulties of assessing technology, it is essential that
it be done. Our power to build and destroy has become almost limit-
less, and the complexity of our technology and institutions has gen-
erated decisions with consequences often not apparent for many
years. For example, it may take many generations to rid the environ-
ment of chemicals which are discovered now to be a threat to man
or the environment. The rapid development of new chemicals has
strained our ability even to determine their effects. The exponential
growth of population and economic development calls for new tech-
nologies at a faster and faster rate to keep up with society's demands.
This makes technology assessment even more difficult, but it also
makes it even more essential, because the future of mankind will be
dictated largely by the nature of our technology.
We must develop the institutional mechanisms capable of making
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GUIDELINES AND REPORTS 3265
technology assessments. The environmental impact statement process
under the National Environmental Policy Act and the advanced test-
ing requirements in the proposed Toxic Substances Control Act are
two examples of such institutional mechanisms. A variety of other
mechanisms exist, but their effectiveness in examining secondary and
tertiary effects must be improved, and the knowledge this brings must
be better used.
public perceptions
The public's perception of the extent and impact of environmental
degradation is an important indicator of the prospect for new or
continued efforts to improve these conditions.
To the general public, pollution is still the central environmental
issue. Air pollution is the most visible form of pollution. It is centered
particularly in and around urban areas, where most of the Nation's
people live. Public information campaigns have alerted people to
the fact that air pollution is a serious health threat besides being
aesthetically objectionable.
Although the average citizen probably comes into contact less often
with polluted water, water pollution also evokes strong public con-
cern. In its First Annual Report, the Council suggested some reasons
for this concern:
First, the growth of industries and cities has multiplied pollution in most
waterways; second, demand for outdoor recreation has grown in a society
increasingly affluent and leisure oriented; and third—a thread running
through all the others—is man's inexplicable affinity to water. Whether it
is the pleasure he derives from a fountain, the mood of a walk along the
lake shore, the relaxation of fishing, or his identification with mejestic water
bodies—the Danube, the Great Lakes, or San Francisco Bay—man has found
tranquility and inspiration in his appreciation of water.
The public's strong interest in solid waste recycling seems heavily
based on an opportunity for constructive and creative public involve-
ment and concern over depletion of resources. Although the danger
of resource scarcity is disputed by economists and others, it is never-
theless probably the chief stimulus to citizen action. Recycling centers
have sprung up throughout the country, manned by women's groups,
students, and others.
The public is troubled by the potentially harmful impacts of
pesticides and toxic substances. This attitude has been stimulated
by the Food and Drug Administration's 1969 seizure and prohibi-
tion of the sale of DDT-contaminated coho salmon, the mercury
and PCB "episodes" of the past 2 years, and other recent incidents
underlining the threats to health posed by a wide variety of sub-
stances now flowing through the environment. However, the public
is also growing wary of the large number of such threats. We must
be certain that our research effort is adequate to support our regu-
latory authorities so that unnecessary fears are not created.
Public perception of noise—one of our most pervasive pollutants—
is growing fast. Although aircraft noise has been the subject of dis-
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3266 LEGAL COMPILATION—GENERAL
pute for years, construction noise, vehicle noise, and other forms of
noise have long been accepted by most people as a necessary con-
comitant or urban living. As more people realize that noise control
is possible and as people's expectations continue to focus more on the
quality of life, the public constituency for noise abatement should
likewise grow.
The traditional concerns over wildlife and wilderness areas have
been strengthened by the heightened public aspiration for a quality
environment generally. Wilderness backpacking, viewing wildlife,
and many other outdoor experiences are increasingly popular. And
they all are guiding the concern over traditional conservational
interests.
Active public interest in wildlife protection is centered largely in
a number of national and regional groups dedicated to preserving
wildlife. But specific instances of cruelty or other threats to wild
animals can evoke broad support for protective measures—illus-
trated in the recent furor over the mass killings of eagles in Wyoming
and other Western States and the support for the recently enacted
law to protect wild horses.
In each of the areas discussed above, there is a strong perception of
the nature of the problem—even if not always entirely correct—and
action is underway at all levels of government. But many of the more
fundamental and underlying forms of environmental degradation
are not as widely perceived, broad public support has not emerged,
and hence progress is limited.
Land use is one of these areas. There is no clear consensus on what
comprises good land use. Garish commercial strips, uniform housing
developments, and poorly sited industrial plants all stand out to many
people as environmental problems. But among those whose only op-
portunity for homeowning is a suburban development, who are served
by the facilities in commercial strips, or who look to the industrial
plants for jobs and tax revenues, there is often disagreement as to
whether these developments are undesirable.
This is not true in other nations. In Europe, a relatively well-
understood consensus has evolved historically on what good land use
is and on the need for open space, balanced development, and historic
preservation. In the United States, the nascent new town movement
is one tanglible manifestation of land use concern, apart from sporadic
concerns expressed in hearings on local zoning ordinances and vari-
ances from them. There is no lack of planning by regional councils,
city planing bodies, and even State agencies. But the translation of
these plans into new living patterns has not proceeded very far in the
present milieu of fragmented local controls.
As concern over the overall quality of the environment increases,
interest in land use policy is also on the upswing. But most of this
concern still tends to be elitist—planners and other government offi-
cials—without broad public participation. The few exceptions are
those local issues which center around a particular land use con-
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GUIDELINES AND REPORTS 3267
flict, such as the "Save the Bay" campaign in San Francisco, which
was later translated into solid institutional change with the creation
of the Bay Conservation and Development Commission. As the public
increasingly perceives the nature of land use problems and the fact
that improvement is possible, the needed constituency should emerge.
At the State and national level, there has been a growing awareness
of the need for a process to deal with land use. The President pro-
posed a National Land Use Policy bill in 1971, which was strengthened
by amendments that he submitted in 1972. Bills reflecting many of
these proposals have been reported out of the Senate and House
Interior Committees. A number of States, such as Maine, Vermont,
and Florida, have developed broad land use programs. Although
these are hopeful developments, real changes in land use practices
and more environmentally sound development will require broad pub-
lic participation and support. This means support for legislation, pub-
lic participation in hearings on plans and regulatory controls, and
public scrutiny of long-term planning efforts. If the public demands
it, developers will have an incentive to build housing that is balanced
and attractive, provides open space, and blends with the environment
instead of conflicting with it.
The public perception of urban environmental problems is even
more uncertain. It is incongruous that millions of Americans go
abroad every year to see great cities such as Paris, London, and Vien-
na while many U.S. cities continue to deteriorate. But there is no
consensus on the need to revitalize our urban environment and make
it a place of beauty and exictement. Through urban renewal or other
activities, many cities have taken some steps toward revitalization,
but success has been mixed at best.
Clearly much more awareness is needed of the dimly understood
environmental problems of urban America, and particularly those of
the inner city, discussed in last year's Annual Report. Our under-
standing of the urban environment must be greatly expanded from
air and water pollution to the quality of architecture and the vitality
of the city in providing entertainment, culture, adequate housing for
all its citizens, and a feeling of belonging and excitment.
The interrelationships between the environment and the economy
seem to be little understood among the general public. There are still
widespread misconceptions of the economic aspects of environmental
controls—such as the notion that industrial pollution control costs
can somehow be completely absorbed by industries rather than
passed along, in whole or in part, to consumers through price in-
creases similar to increased labor or materials costs.
The economics of environmental improvement must be better
understood because they affect broad segments of the Nation's popu-
lation. There will be increased costs for environmental improvements,
and the public must be willing to pay for them. If the public is not
aware of these costs, disillusion may set in when they are actually
incurred. The public must also understand the economic benefits that
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3268 LEGAL COMPILATION—GENERAL
environmental controls will achieve and the relationship of these
benefits to the costs.
As the basic steps toward remedying some of the most blatant en-
vironmental problems are taken, such as controls over air and water
pollution, public sophistication and perception of some of the more
complicated or subtle environmental problems should expand. With
broad-scale public understanding and support, the very real gains
being made in combating pollution can then be transferred to the
equally important job of achieving sensible land use and livable
urban areas.
summary
The Council's Third Annual Report shows how entwined environ-
mental quality is with our institutions, our economic systems, the de-
velopment of our technology, our laws, and indeed our values as a
society. It also indicates how little we still know about many aspects
of the environment, including its basic physical aspects. Much more
needs to be known, for example, about the source and fate of pollu-
tants and the impacts of pollutants and other environmental insults
on man and natural resources. This information is critical if we are to
develop valid measurement systems, monitoring, and indices of en-
vironmental quality.
We need to understand better the environmental impacts which
stem from the basic production systems in our society. Systems analy-
sis can generate information both on the causes of our environmental
problems and on how our economic system can resolve some of these
problems through adequate pricing and incentives. As we better un-
derstand how economics can unintentionally lead to environmental
damage, we can correct biases in public policy and structure incen-
tives to eliminate or reverse these trends.
As indicated earlier, progress in environmental improvement is
visible on many fronts. It appears that we are winning the battle
against air pollution. New institutions are being developed, and a
wide variety of innovative approaches to environmental problems
is being tried at the Federal, State, and local levels. The President
has recommended changes in the tax code to abate sulfur oxide emis-
sions and to discourage development in fragile wetland areas. These
changes in our institutions, our laws, and our economic system are
important steps in achieving the kind of environment that we all
seek. Building from these steps, there is every reason to believe that
the country can respond to the difficult but rewarding challenge
before it.
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GUIDELINES AND REPORTS 3269
4.3 CITIZENS' ADVISORY COMMITTEE IN ENVIRON-
MENTAL QUALITY REPORTS TO THE PRESIDENT AND
THE PRESIDENT'S COUNCIL ON ENVIRONMENTAL
QUALITY, AS REQUIRED BY E.O. 11472, §102(c)
4.3a Report to the President and the President's Council on
Environmental Quality, Citizens' Advisory Committee on
Environmental Quality, August 1969
INTRODUCTION
The Citizens' Advisory Committee on Environmental Quality is
pleased to submit this report to the President and the Council on
Environmental Quality. It is a high and rare privilege for citizens
to report their recommendations directly to the highest levels of
government.
We believe that environmental quality is a particularly appro-
priate area for citizen participation. All across this country people
are deeply concerned about what is happening to their land, their
water, and their air. We hope our Committee will be able to reflect
their concerns and their aspirations to those in a position to do
something about it.
In announcing the creation of the Council on Environmental
Quality and the Advisory Committee, President Nixon said, "To-
gether we have damaged the environment, and together we can
improve it."
We take this challenge as our basic charter. As citizens, we hear
much about what is wrong with our environment, and we know
much is wrong. But as citizens, we also know that it is up to us to
work with our government to bring about improvement.
In our approach to issues, the Committee will, of course, be the
advocate of a good environment. However, we are aware that a
growing nation needs housing, highways, airports, power, and all
the other requirements of an expanding and improving society.
For many years environmental considerations have not been given
sufficient weight. The pendulum is now swinging to correct this,
but zeal can drive it too far. Thus, we shall try to take a balanced,
practical approach urging action for the environment in the light
of reason.
We shall try to concentrate on policy guidelines which can be of
assistance in specific situations. We shall not, however, seek to
inject ourselves into specific local controversies unless directed to
do so.
Fifteen citizens meeting periodically without a real staff, ob-
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3270 LEGAL COMPILATION— GENERAL
viously, cannot make detailed recommendations on all environmen-
tal issues. Increasingly, these problems require technical compe-
tence and intensive background.
We, therefore, must be highly selective. We do believe, however,
that we can bring a citizen viewpoint to bear productively on some
problems. We seek your guidance as to where best we can be
helpful and effective.
As an indication of the potential of a citizens' group, the first
section of this report is an account of the work of the earlier
Committee and some of its pending recommendations which we
believe are worthy of further consideration. The second section is
a proposed action agenda for the new Committee.
[p. 2]
OLD AND UNFINISHED BUSINESS
THE UTILITY INDUSTRY AND THE ENVIRONMENT
The electric utility industry has a great impact on the environ-
ment. Transmission lines, distribution lines, and power plants dis-
turb natural settings.
The Committee undertook a study of this impact in cooperation
with the private and public power industries. A task force com-
posed of twenty-seven top-level power executives and public
officials studied the problem for eighteen months and presented a
series of recommendations for federal, state, and industry action.
The task force recommended that the federal government initi-
ate a grant-in-aid program to communities to underground distri-
bution lines, intensify its research program to bury transmission
lines, and develop clearer federal policy guidelines on routing of
lines.
The states were urged to have their regulatory commissions
require undergrounding in new developments, to require a conver-
sion program of overhead to underground and assume jurisdiction
over transmission line routing.
Industry was urged to set a 1975 deadline for undergrounding
all new residential distribution lines and to initiate a systematic
conversion program of overhead to underground.
A joint program to further public understanding of the environ-
mental as well as the economic benefits of nuclear power genera-
tion was also recommended particularly in urban areas.
Responding to this report, an inter-agency working group
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GUIDELINES AND REPORTS 3271
headed by vice Chairman Carl E. Bagge of the Federal Power
Commission endorsed many of the findings of the task force and
urged even more aggressive action.
The FPC has followed up by issuing proposed new rules for
transmission line projects under its jurisdiction. It intends to deny
approval to any project "without a showing that the facilities will
be constructed to preserve aesthetic values." The basis for the new
rules will be an FPC report incorporating the guidelines worked
up by our task force.
The Committee was pleased to find that the task force not only
produced action on specific recommendations. It also demonstrated
that a joint citizen-industry-government effort can be brought to
bear on a mutual problem effectively. The Committee was so im-
pressed with the goodwill and cooperation that it believes this
working method may be a useful tool in approaching other envi-
ronmental problems.
[p. 3]
SELECTION OF HIGHWAY ROUTES
No other environmental issue has aroused more citizen concern
and interest than the impact of the highway system on the envi-
ronment.
The Committee recommended that a two-hearing procedure be
established to give more thorough consideration to environmental
factors and to allow more complete participation by the public.
The first hearing would be on general route and the second on the
more specific details. The Department of Transportation has im-
plemented this recommendation.
The Committee also recommended that some form of formal
appeals system be established. The public is often frustrated by
what it feels as an inability to affect highway routing decisions.
No appeals system has yet been set up.
We continue to believe that an orderly appeals system which
would hear legitimate citizen complaints and which would dismiss
frivolous interference would be a substantial asset. We also believe
that an apparatus for citizen appeals on a state level would be
helpful.
SCENIC ROADS
The Committee has recommended action on a national scenic
roads program. We stressed our belief that all highways should
have scenic qualities as far as possible.
Our suggestions emphasized the use of existing roads and by-
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3272 LEGAL COMPILATION—GENERAL
ways rather than a massive new construction program. As a first
step, we urged that federal funds be made available to the states
for planning and for development of demonstration projects.
We also urged that modest steps could be taken now by desig-
nating existing roads as scenic tourways. Minor engineering im-
provements, informational signs, and maps, and some low-key
publicity could bring the beginnings of a system into being very
quickly.
For a long-range program, the Committee recommended a spe-
cial Scenic Roads Fund comparable to the Highway Trust Fund.
Perhaps a portion of the Highway Trust Fund could be allocated
for this purpose.
An inter-departmental committee is due to report on a scenic
roads program early this fall. This will be the latest in a series of
such reports.
Although full funding may be quite difficult now, the Committee
urges that the basic commitment and decisions on a scenic roads
program for the nation be made promptly. Much can be done at
modest cost and when that time comes when more funds are avail-
able, the full program will be ready for action.
[P. 4]
CITIZEN ACTION GUIDE
The Committee published a guide to citizen action for natural
beauty as a primer for the concerned citizen who wanted to make
his community a better place in which to live. The guide outlined
the federal programs available to help communities and told how
to go about obtaining grants. It also described the assistance of-
fered by national organizations, and how it can be obtained.
Nine thousand copies of the guide were distributed to local
officials and citizens all over the country. The Government Print-
ing Office sold an additional six thousand copies.
The Committee plans to republish it to cover its broadened
responsibilities. We believe that it may be a valuable tool for
volunteer action, and propose to expand distribution.
TREES IN THE CITY
The Committee has been concerned with the immediate and
specific problems of the loss of trees to disease in our cities and
suburbs.
Trees lend charm and softness to the crowded urban scene and
give a sense of scale and proportion to man's work. We believe
also that they are an economic asset to the cities worth protecting.
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GUIDELINES AND REPORTS 3273
Urban trees also provide one of the few opportunities available
to the city's young people to see nature at work.
The federal government spends about twenty-six million dollars
a year on timber research; yet almost none of this involves better
trees for the cities.
The Committee recommended that the United States Forest
Service establish an urban tree program in a cooperative effort
with states and local communities. The National Park Service has
also expressed an interest.
We continue to believe that this program could help improve
and establish trees along the streets of our cities and suburbs.
OTHER RECOMMENDATIONS
In addition to these pending matters, the Committee has put
forward a number of other recommendations.
The Committee recommended that the Vice President be named
Chairman of the Council on Recreation and Natural Beauty. This
was done. However, the leadership of the new Environmental
Council with the President as Chairman is a dramatic change.
[p. 5]
We urged a task force to develop new and better highway signs
with national standards to insure uniformity and familiarity.
Such a program would be a contribution not only to safety but
also to greater public enjoyment of tourism. This is still under
consideration by the Federal Highway Administration.
We recommended disposal of surplus federal lands to public
bodies for park and recreational purposes at no cost as is the case
for educational and historic purposes. This is a subject of pending
legislation.
We recommended a number of actions in regard to the Highway
Beautification Program. This program needs further review badly.
In addition, the Committee wishes to call the attention of the
Council and particularly its Sub-Committee on Outdoor Recreation
to the recommendations contained in "From Sea to Shining Sea,"
a report of the Council on Recreation and Natural Beauty. The
report contains recommendations on such subjects as incentives
for new towns, surface mining damage, tax incentives for environ-
mental improvement and others which we believe are worthy of
consideration by the Environmental Council.
[p. 6]
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3274 LEGAL COMPILATION—GENERAL
AN AGENDA FOR ACTION
The following are new areas in which the Committee believes it
can produce useful results. They do not add up to a comprehensive
list of environmental problems; rather, they are areas where we
believe a group of citizens may offer some assistance. Our ap-
proach will not necessarily propose sweeping programs, but it will
recommend practical next steps which will stimulate progress to-
ward recognized goals.
TWO BASIC PROBLEMS
Before putting forth the specific areas in which we believe we
can be helpful, there are two general, pervasive problems we be-
lieve must be cited.
Funds.—Any responsible report on environmental issues must
begin with a difficult subject—funds necessary for implementa-
tion. The hard fact is that over the past few years a number of
promising environmental programs have been authorized, but the
money to fund them has simply not been forthcoming.
Water pollution control for example. Last year $700 million was
authorized for sewage treatment—but only $214 million was ac-
tually appropriated. This year the authorization is $1 billion, and
it again looks like only $214 million will actually be available.
This funding, far below promised levels, has had a disastrous
effect on state and local government programs. Many have de-
layed, waiting for federal money. Others have gone ahead on the
promise of federal support and have gotten into difficulty. Thus,
the present program, which was designed to stimulate action,
ironically, has thus far probably slowed it down.
The Land and Water Conservation Fund, which is the principal
tool in acquiring federal recreation lands and in helping states and
cities to do so, is a particularly glaring example. Last year legisla-
tion was passed which authorized up to $200 million from offshore
oil receipts to bring the fund up to that minimum level. Yet even
with this guaranteed backing, the appropriations have been $164
million for 1969 and $124 million proposed for 1970.
The same is the sad truth with many other environmental pro-
grams.
[p. 7]
We realize that there are many other demands on the federal
dollar and that the threat of inflation demands restraint. However,
the Committee cannot help but note that one of the main problems
in environmental programs is simply money.
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GUIDELINES AND REPORTS 3275
We express the hope that when federal funds are more availa-
ble, these programs will be given high priority.
Population Control.—The second problem is population control.
Our land, water, and air has a limited carrying capacity for people
just as it does for every other living organism. If we exceed this
capacity, the quality of the environment must deteriorate.
The Committee applauds the President's leadership in sending a
message to the Congress on this urgent subject. The statistics in
that message are a dramatic call to action.
As noted in the President's historic message, "In 1917 the total
number of Americans passed 100 million, after three full centuries
of steady growth. In 1967—just half a century later—the 200
million mark was passed. If the present rate of growth continues,
the third hundred million persons will be added in roughly a
thirty-year period. This means that by the year 2000, or shortly
thereafter, there will be more than 300 million Americans."
We are particularly pleased that the President directed the En-
vironmental Council to give the population problem careful consid-
eration in its deliberations.
The Committee views the population urge as the demand side
of the environmental equation. Obviously, the demand must not be
beyond the supply of basic resources, the building blocks of a good
environment.
Our standard of living and environmental quality and popula-
tion levels are all closely interlocked.
We believe that there should be a national goal at least reducing
the increase in the rate of our population growth, and upon fur-
ther study, perhaps seeking to stabilizing it as a key factor in
restoring and maintaining environmental quality.
Population control is an extremely sensitive and personal area
in which extensive public education is needed. The Committee
stands ready to help the Council focus public attention on the
importance of the population policy to the national goal of a good
environment.
[P. 8]
PROPOSED ACTION ITEMS
The following are brief summaries of specific action areas in
which the Committee believes it can assist the Council. In some
cases, indicated by an asterisk, the proposal is spelled out in more
detail in an appendix.
These items are only a tentative working agenda subject to the
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3276 LEGAL COMPILATION—GENERAL
approval of the Council and subject to change as we find out more
about the problems and discover new ones.
URBAN RECREATION
Nowhere is the need for open space and recreational facilities
greater than in our cities. Here is where most of our people are
and here is where land and facilities are most dear.
The two principal federal programs which help states and local
government provide parks and open space are the Land and Water
Conservation Fund administered by the Department of the Inte-
rior and the Open Space Program of the Department of Housing
and Urban Development. These programs have been extremely
productive, but we believe that a fresh review will turn up ways to
make them considerably more effective.
Open space by itself does not really provide significant outdoor
recreation opportunities. Facilities must be added to the raw land.
Parks must be programmed to provide activities for people to
obtain maximum pleasure and benefit. Trained leadership must be
available, and there must be continuing high quality maintenance.
Only about a third of the money given to the states from the
Land and Water Conservation Fund has gone to urban areas. Most
of this has been for the suburbs rather than the central city.
Perhaps the states should be required to channel a larger share of
the total grant monies to urban areas. We also believe that the
Secretary of the Interior should be given discretionary authority
to make grants directly to large cities in special circumstances.
In the Open Space Program there is a need for more latitude for
innovation. Most of the money has gone for traditional park pro-
jects. What is needed is more use of new approaches—use of air
rights, rooftops, and mobile parks for example.
[p. 9]
The Urban Beautification program included 90 per cent grants
for demonstration projects. The House Appropriations Committee,
however, reduced the level to fifty per cent. This virtually extin-
guished the demonstration incentive. We recommend that it be
restored and the other means of stimulating innovation be ex-
plored.
We also believe that consideration should be given to use of
federal grants for operating purposes. In many of our city parks,
maintenance is deplorable—worse than thirty years ago.
Cities need money to provide programming in the parks and to
train leadership to carry it out.
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GUIDELINES AND REPORTS 3277
New York State is providing funds to bus core city people to
out-of-city parks. In the current crisis, this may be more impor-
tant than new capital expenditures.
We believe one particularly dramatic evidence of federal inter-
est in the cities might be swimming pools. They are probably the
most critically needed recreation facility; yet there is no federal
program providing adequate help.
Pools in urban areas are expensive, but we believe a special
grant program to provide a chance to swim for core city young
people would be a highly efficient use of the federal recreation
dollar.
The Committee stands ready to help in working out the details
of such a program. *
[p. 10]
UNITED NATIONS CONFERENCE ON THE ENVIRONMENT
The United Nations will hold a conference on the environment
sometime in 1972. The General Assembly session meeting in Sep-
tember will consider proposals for time, place, and agenda for the
meeting.
The Committee believes that this conference can be a major
forward step toward a better environment. Increasingly, the prob-
lems of pollution are becoming international and require interna-
tional action.
As a pioneer in the national park concept and in the concern for
environmental quality, America has much to contribute to the
conference. There is also much to be learned from what other
nations are doing to solve their national problems.
In addition, environmental progress would appear to be an area
of international cooperation which can foster warmer interna-
tional relations. The resolution suggesting the conference was in-
troduced by Sweden and attracted fifty-one co-sponsors including
the United States. The Soviet Union supported the idea during the
floor debate.
Some preliminary planning is being done by the State Depart-
ment and the federal departments involved. The Citizens' Commit-
tee believes that this conference represents an outstanding oppor-
tunity both for leadership and for learning.
We, therefore, recommend that the preparation for U.S. partici-
pation be given a high priority and that the Environmental Qual-
ity Council become the focal point for American involvement.
We further recommend that American citizen organizations and
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3278 LEGAL COMPILATION—GENERAL
leaders from the private sector be given an opportunity to play an
important role in the conference.
[P. 11]
SOLID WASTE
One of the most challenging of our environmental problems is
the mounting pile of garbage and refuse in our cities and what is
to be done with it. By 1980, it is estimated, the load will have
tripled.
Pravfli'ine' rHgposal methods in the big cities, chiefly incinera-
tion and landfill, are costly and inefficient. Sanitary landfill takes a
lot ut space, ana cities arc running out of it.
Burning, the main alternative to landfill, has its problems, too.
Most incinerators in use today pollute the air. Hardly any of them
meet the standards for air pollution emissions recommended by
the National Air Pollution Control Administration.
In 1965, Congress recognized the problem as a national respon-
sibility when it enacted the Solid Waste Disposal Act. The Act
provides for research and development of new and improved waste
disposal methods and provides technical and financial assistance to
states to plan and develop waste disposal programs.
The program has produced some innovative techniques. What is
needed now is the money to put them to work. Congress has before
it a bill which would provide funding to do just that. This is badly
needed money.
For the long term, we must explore the great potentials that
exist for reclaiming and recycling our waste products back into
the economy. There are some encouraging signs on the horizon.
Reclaiming materials from solid wastes is still a financially mar-
ginal operation, but there is considerable value in the reclaimed
residue of our junk. The U.S. Bureau of Mines estimates that if all
solid waste were properly incinerated, it would yield salvageable
metals worth more than $1 billion each year. A ton of recycled
waste paper can provide an amount of wood pulp equivalent to
seventeen pulped trees.
There are other possibilities for making the disposal process
more economic. A new technique called pyrolysis converts the com-
bustible material in refuse into charcoal and salvages the remain-
ing metal and glass. Other enterprises have converted the city's
raw garbage into compost to be marketed as fertilizer.
We hope that we might be of use to the Committee which the
President's Council on Environmental Quality has set up under
the chairmanship of Secretary George Romney to examine the
-------
GUIDELINES AND REPORTS 3279
appropriate role of the federal government in solid waste manage-
ment.
On the basis of our experience with the Electric Utility Task
Force, we think we might serve as a catalyst in enlisting industry
people in joint effort with government officials, citizens, engineers,
and scientists.
fP-12]
ENVIRONMENTAL EDUCATION
Man's interaction with his environment, both natural and man-
produced, is the basis of all learning—the very origin and sub-
stance of education. Yet, our formal education system has done
little to produce an informed citizenry, sensitive to environmental
problems and prepared and motivated to work toward their solu-
tion.
A few concerned educators have begun programs in environ-
mental education. By introducing environmental considerations
throughout the normal curriculum, these educators are making
students aware of man's responsibility for the quality of his envi-
ronment.
Some federal programs have elements of environmental educa-
tion in them, but the Committee believes these programs can be
made more responsive to a growing public need.
In partial response to a recommendation of the former Commit-
tee, the position of Coordinator for Environmental Education was
established in the U.S. Office of Education; however, one person
has been able to accomplish little, and it appears that a fully
staffed service unit is required. There are interesting opportuni-
ties.
For our youth in school, Title III of the Elementary and Second-
ary Education Act enabled the establishment of over one hundred
environmental education centers; but no program was initiated to
disseminate to the rest of the nation's teachers the teaching meth-
ods and curriculum materials developed at these innovative cen-
ters.
Also, vocational education opportunities associated with envi-
ronmental quality fields have not been assessed and developed.
For adults, environmental study programs sponsored through
Title I of the Higher Education Act have failed to reach a large
sector of the general public because of excessive reliance on tradi-
tional classroom methods. Certain program modifications could
certainly overcome this limitation.
-------
3280 LEGAL COMPILATION—GENERAL
Finally, Extension Service programs are generally out of touch
with the environmental problems of modern communities and
should be reviewed and redesigned.
The Committee believes that a review of these opportunities can
produce progress in environmental education.*
[P- 13]
VOLUNTEER ACTION
The President has called for an increased role for volunteers in
all areas of public endeavor. We believe that environmental qual-
ity is suited to citizen involvement.
The Committee's revised Citizen Action Guide will be a helpful
tool. In addition, we want to explore other ways in which the great
dynamics of volunteer action can be brought to bear for a better
environment.
As a Citizens' Committee with the unusual opportunity to ad-
vise the highest councils of government, we feel a particular re-
sponsibility not only to represent the general public but to afford
it an opportunity to participate.
The Committee plans to establish a procedure whereby it can
meet with the leadership of conservation organizations and other
groups whose interests include the environment. By meeting with
them periodically we intend to seek their views and those of their
broad memberships on leading issues. This device may have poten-
tial as a two-way means of communication as well.
THE FEDERAL LICENSING POWER
Federal agencies have a great impact on the environment in the
way that they grant licenses and permits. If a private or public
agency plans to move a mass of land, water, or is about to build a
dam, a highway, or a transmission line, the chances are it must
have a federal permit of some sort to do it. The Atomic Energy
Commission, the Corps of Engineers, the Federal Power Author-
ity, and the Federal Aviation Agency among others, all grant
permits which substantially effect the environment. In recent
years some attention has been paid to the environmental impact of
what the licensee is allowed to do.
But legislative and administrative authority is spotty and
uneven. The Committee believes that a systematic review of the
existing policies and mandates of licensing agencies should be
made to determine how they effect environmental quality.
-------
GUIDELINES AND REPORTS 3281
Should the Council wish, the Committee would be pleased to
undertake such a study.
[p. 14]
NOISE
In no field of environmental quality is there a greater opportu-
nity for dramatically effective action than in noise control. Consid-
ering the growing concern and the growing nuisance, there has
been little action. We have the technology, but we have not had the
will to use the technology.
There is substantial work proceeding on jet noise and sonic
boom. There are task forces, committees, and reports.
But we are not even to that preliminary stage in coping with
the pervasive noise of everyday urban living—the roar of the
busses, the shrieks of sirens, and the clatter of jackhammers.
Some cities have controlled auto horns. Improved building codes
offer another opportunity.
All these and the scores of other noise sources can be silenced
with present technology. What we do not have are realistic means
-»f enforcing them.
The Committee is not equipped to make technical recommenda-
tions, but should it be felt desirable, we could bring together
scientists, engineers, health people, government officials, and inter-
"Sted citizens. We could ask them to make recommendations for
•dministrative and possible legislative action to make our cities
•viieter and thus more liveable.
[p. 15]
SUPPLEMENTAL MATERIALS
Appendix A—Previous Committee Recommendations and Status
of Each
Appendix B—Analysis of Gap between Authorization and Appro-
priation in Environmental Programs
Appendix C—Memo on Urban Recreation
Appendix D—Memo on Environmental Education
[p. 17]
Appendix A
CITIZENS' ADVISORY COMMITTEE RECOMMENDATIONS
The following paragraphs summarize the recommendations which the
Citizens' Advisory Committee on Recreation and Natural Beauty made
prior to this report.
-------
3282 LEGAL COMPILATION—GENERAL
1. We recommend that the Council make itself a vigorous forum for key
policy issues; that the Secretary of Transportation be made a member of
the Council; and that consideration be given to the appointment of the Vice
President as Chairman.
Discussion: Executive Order 11359A, June 29, 1967, and 11402, March 29,
1968, respectively implemented the last two parts of our recommendation.
Executive Order 11472, May 29, 1969, established the Environmental Quality
Council which supersedes the President's Council on Recreation and Natural
Beauty. The order provides that the President of the United States shall
preside over meetings of the Council. The Vice President of the United
States is a member of the Council and shall preside in the absence of the
President.
2. We recommend that the Secretary of Transportation make federal
highway aid contingent on route selection procedures that give full con-
sideration to resource, recreation and aesthetic values. We recommend that
he establish a Route Selection Review Board to deal with significant right-
of-way disputes. We recommend that the Governors of the States establish
similar review boards.
The first part of the recommendation was broken down into five sub-
recommendations providing for (a) early cooperation with the resource
agencies, (b) early public hearings, (c) second public hearing, (d) formal
discussion on final proposed alignment, and (c) impartial hearing forum.
The first two parts of this recommendation were reiterated in the second
annual report.
[p. 19]
Discussion: On January 14, 1969, the Department of Transportation issued
Policy and Procedure Memorandum 20-8 providing for two public hearings.
The first is a "corridor public hearing" which is to be held before a route
location is selected and before the state highway department is committed
to a specific proposal. The second is a "highway design public hearing"
which is to be held after the route is approved but before a specific design
is approved. This hearing provides specifically for consideration of environ-
mental values.
Section 5 of the Memorandum provides that when a state highway
department begins consideration of the development or improvement of a
highway corridor ". . . it shall solicit the views of that state's resources,
recreation and planning agencies and of those federal agencies and local
public officials and agencies . . ." which it ". . . knows or believes might be
interested in or affected . . ." by the project. Such agencies are also to be
given an opportunity to put their names on a list to receive notices of
projects in such areas as they desire.
The Memorandum also provides that at the time a state highway
department requests approval of a location or design proposal it must make
public notice of its request.
Thus, provision has been made in some degree for the five subreeommenda-
tions enumerated except for the requirement of an impartial hearing forum.
-------
GUIDELINES AND REPORTS 3283
No positive action has been taken to establish a Route Selection Review
Board at either the federal or state level. The Route Selection Review Board
described by the Committee can be more accurately described as a Route
Selection Appeals Board.
3. We recommend that the Council carefully examine the implications of
the proposal for a National Scenic Roads program. We recommend a vigorous
effort by the Bureau of Public Roads and the states to use the tools now
available for making roads more scenic, in particular, those provided under
Title III of the Highway Beautification Act of 1965.
The second annual report supplemented this recommendation with the
following:
We recommend the establishment of a special Scenic Roads Fund to
provide matching grants to states for the development of scenic roads
systems, and to finance a federal program for national parkways and scenic
roads development. We recommend that the federal government initiate a
survey to select and designate routes that are of national significance,
scenically and historically, and that federal funds be made available for the
planning and development of demonstration scenic roads projects.
[p.20]
Discussion: At the joint meeting1 with the council on June 21, 1968, the
Vice President established a Working Committee on Scenic Roads and
Parkways. It was charged with submitting to the Council by September 1,
1969 "... a nationwide scenic roads program for the next decade which
would bring local recreation pleasure driving opportunities within the
reach of every American."
The Committee's recommendation regarding the use of existing tools
implied the use of funds under Section 319 of the Highway Act and Title
III of the Highway Beautification Act. Little has been done to increase use
of these two possible sources of funds.
The lack of action is not necessarily the fault of the federal agencies.
Implementation of the Highway Beautification Act has been limited by lack
of or insufficient funding. The following tabulation shows funds expended
under Title III of the Highway Beautification Act through March of this
year and funds authorized for fiscal year 1970. No funds were appropriated
during the current year.
Outdoor Advertising. _ ._. . . .
Junkyards .. .. ..
Landscaping
Expended
to date fi
$ 2,350,394
. . 8,903,049
120,504,139
Authorized
seal year 1970
$ 2,000,000
3,000,000
20,000,000
Total $131,757,582 $25,000,000
-------
3284 LEGAL COMPILATION—GENERAL
However, the Department of Transportation has taken several actions
which offer opportunity to enhance the highway environment. Policy and
Procedure Memorandum (PPM) 30-4.1 dated 11/29/68 provides for the use
of highway rights-of-way by utilities when such use does not interfere
with traffic or impair the highway or its scenic appearance. The PPM sets
guidelines to be considered in locating utilities in public parks, recreation
areas, wildlife and waterfowl refuges and historic sites.
Instructional Memorandum 21-2-69 provides authority for developing
multiple use facilities on highway rights-of-way. It provides the conditions
under which federal highway funds may be used to finance mini-parks and
recreational facilities.
4. We recommend that the Secretary of Transportation set up a task
force to develop new and better standards for effectual highway signs.
Discussion: A task force was established and has developed proposed signing
standards. Under present procedures these standards are submitted to the
National Joint Committee on Uniform Traffic Control Devices for review.
That Committee is composed of representatives of all groups which have
a concern with traffic control. The proposed new standards are being
incorporated into a revised Manual on Uniform Traffic Control Devices
[P.21]
for Streets and Highways. Following Committee review, the standards will
be recommended to the Federal Highway Administrator for implementation.
An educated guess as to timing calls for the revised Manual to be forwarded
to the Administrator late in 1970.
5. We recommend that the Council lay down policy guidelines that will
lead to effective interagency recreation planning.
Discussion: The situation which existed at the time the recommendation
was made is even more serious today. The ever increasing number of people
crowding into public and private recreation areas continues to place a
burden on facilities and staff and in some cases leads to a deterioration of
the resource. As a result many visitors fail to find the relaxation and
rejuvenation of spirit they seek.
6. We recommend that the Council require all agencies to cooperate to
the fullest in administering the fee program. We recommend that the $7
charge for the Golden Eagle Passport be re-examined and that a much
greater effort be made to promote it to the public.
Discussion: The Land and Water Conservation Fund Act of 1965 was
amended by Public Law 90-401 to repeal the provisions providing for the
collection of admission and entrance fees after March 31, 1970. After that
date individual agencies can charge entrance and admission fees under
existing authorities. However, such fees will not be deposited into the Fund.
7. We recommend that an Environmental Education Unit be established
within the Office of Education of the Department of Health, Education, and
Welfare.
-------
GUIDELINES AND REPORTS 3285
Discussion. The Department of Health, Education, and Weii'are has created
a position of Coordinator for Environmental Education with responsibility
for coordinating the environmental education projects undertaken by the
Department and working with colleges and universities to develop programs
to train teachers for environmental education careers.
While the action taken by HEW is responsive in part to the Committee's
recommendation, much remains to be done if we are to develop innovative
environmental education programs.
8. We recommend that the federal government do more to provide environ-
mental education experiences on its own lands.
Discussion: In their response to this recommendation, the federal land
managing agencies indicated that they had long recognized the value of
[p. 22]
such programs. However, they were hampered by restrictions on funds
and personnel. Some agencies also lacked authority.
Agencies have continued to place emphasis on improving their interpretive
services and broadening their value to the visitor. The National Park Service
has contracted for a study to determine how it can improve its interpretive
services. It would like to have such services enable man to better understand
his interrelationship with the environment. The Tennessee Valley Authority
is expanding and improving its facilities and services at the Land-Between-
the-Lakes Area. The Forest Service has a pilot project underway to develop
improved interpretive services to the public.
9. We recommend that greater attention be given in designing, construct-
ing and landscaping highways to preserve the natural landscape.
Discussion: The Council members considered the Committee statement as
a series of guidelines which, if implemented, would improve the view from
the road. They did not indicate any positive actions to be taken in response
to the recommendation.
Many of the Department of Transportation's recent instructional memo-
randums and manual releases have indicated a concern for the environment
and the impact which highways have on it.
10. We made a series of recommendations with respect to the Electric
Utility Industry and the Environment. These included recommendations for
federal, state, and industry action.
A working committee on utilities was set up with instructions to submit
to the Council by January 1, 1969, recommendations for actions required
to assure that new utility plant sites and utility line routes are compatible
with environmental values. The Working Committee's report was submitted
to the Vice President on December 27, 1968.
The report contains a section Guidelines for the Protection of Natural,
Historic, Scenic, and Recreational Values in the Design and Location of
Rights-of-Way and Transmission Facilities which is excellent. Several
agencies have taken steps to incorporate these guidelines into their manuals.
11. We recommend that the Administration seek legislation to permit the
disposal of surplus lands at no cost to public bodies for park and recreation
-------
3286 LEGAL COMPILATION—GENERAL
purposes. We recommend that, where possible, military lands be made
available for public outdoor recreational use.
[p.23]
Discussion: On August 28, 1968, the Executive Director of the Council
transmitted to the Vice President a Council report, Utilization and Disposi-
tion of Federal Lands for Recreation. In his transmittal, the Executive
Director recognized that the Council's recommendations conflicted with the
Committee's recommendations and also with a proposal which the Bureau
of the Budget and General Services Administration had made. Essentially,
the Council's recommendation provided that the program agency would
determine the price an applicant would pay based on a sliding scale from
0 to 100% of fair market value. The percentage to be determined by the
public benefit to result from the use and the degree of restriction placed
on the use. Thus, surplus federal land ideally suited for recreation could
be transferred at no cost.
The Budget and GSA proposal would restrict transfers for less than
fair market value to those instances when the transfer of the property
would result in optimum use of the property.
12. We recommend that a special task force be established under the
leadership of the Vice President to review the recreational needs of urban
areas and evaluate existing federal programs in terms of meeting these
needs.
Discussion: The Vice President established a Working Committee on the
Urban Environment to propose a program by January 1, 1969, to clean
up core city areas and make them more attractive, control noise which
renders many urban areas virtually uninhabitable and increase the number
of urban recreation areas.
13. We recommend an immediate moratorium on the implementation of
the thirty foot highway safety rule as it relates to the removal of trees
and a complete evaluation of the association between highway safety and
roadside plantings.
Discussion: The instructions referred to have been clarified by the Federal
Highway Administrator. The Secretary of Transportation reported that we
could be assured that the new directives were disseminated to field level
personnel, that they will be equitably administerd, and that ". . . trees
are removed only in instances where the needs of safety are paramount,
and then only where the trees cannot be protected."
14. We recommend that the Department of Transportation make an
intensive study of the operation of the outdoor advertising control and
informational signing program in the State of Vermont.
[p. 24]
Discussion: At the June 21, 1968, joint meeting of the Council and the
Committee, the Vice President established a Working Committee.
Representatives of the Bureau of Public Roads believe that their signing
requirements are compatible with Vermont's and are presently reviewing
a request from Vermont to extend the signing authority to the primary
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GUIDELINES AND REPORTS 3287
and secondary highway systems as well as the Interstate system.
Information regarding Vermont's program has been widely disseminated
through professional society publications, trade journals and conferences.
15. We recommend that an urban and community forestry program be
created in the United States Forest Service. The program should encourage
research into the problems of city trees, provide financial and technical
assistance for the establishment and management of city trees and develop
federal training programs for the care of city trees.
Discussion: The Department of Agriculture submitted draft legislation to
the Bureau of the Budget last year to establish an Urban and Community
Forestry Program. The Bureau returned the bill with no action. We are
advised that as soon as practicable the Forest Service proposes to submit
its proposal to the Secretary of Agriculture and seek Administration support.
Following receipt of the Committee's report, other agencies, particularly
the National Park Service, indicated their interest in the problems of city
trees and existing programs.
[p. 25]
Appendix B
FEDERAL ENVIRONMENTAL CONTROL PROGRAMS
During the past several years there have been a number of major pieces
of legislation enacted by Congress seeking resolution of major environmental
problems. Included are the Clean Air Act (P.L. 89-272), the Water Resources
Research Act of 1964 (P.L. 88-379), the Water Quality Act of 1965
(79 Stat. 903), the Highway Beautification Act of 1965 (P.L. 89-285), and
the Land and Water Conservation Fund Act of 1965 (P.L. 88-578).
Considerable effort went into the development of each of these laws
including estimates of the program costs over a period of years. As enacted,
most of these laws contained authorizations of funding levels which the
sponsors believed necessary to implement the programs and solve the
problems which had been identified.
While Congress was willing to authorize the programs and the funding
levels, the Administration and Congress frequently were reluctant to appro-
priate the necessary funds to implement the programs. There was some
justification for this position in view of the other pressing demands
for funds which had to be considered, primarily the cost of Viet Nam and
related military expenditures.
In many instances this has resulted in considerable gaps between what
has been authorized to conduct a program and what has actually been
appropriated. For example, in fiscal year 1969, $700 million was authorized
for treatment plant grants with only $214 million appropriated, a gap
of $486 million; $185 million authorized for air pollution with $88.7 million
appropriated, a gap of $96.3 million; and $32.5 million authorized for
solid waste disposal with $17.2 million appropriated, a gap of $15.3 million.
The attached tabulation shows the relationship between authorizations and
appropriations for several environmental programs.
-------
3288 LEGAL COMPILATION—GENERAL
A brief review of these programs indicates that many are still valid,
that the justification for the programs still exist, that, if anything, the
problems are more serious today than ever. What is needed is a review of
federal expenditures, the establishment of reasonable priorities, and the
appropriation of sufficient funds to adequately implement the programs.
[p. 26]
FUNDING OF FEDERAL ENVIRONMENTAL CONTROL PROGRAMS
[by fiscal years, in millions of dollars]
Solid Waste Disposal Act
Dept. of the Interior: 1965 1966 1967 1968 1969 1970
Authorization
Appropriation. . . , „
Gap __- ___ __ _. _
Dept. of Health, Education and Welfare
Authorization . ..
Appropriation.. . . _ .. _ ._
Gap . .- _
3.0
1.4
- - 1.6
7.0
... -- 4.3
.. ... 2.7
6.0
4.3
1.7
14.0
12.3
1.7
10.8
3.4
7.4
19.2
15.4
3.8
12.5
1.9
10.6
20.0
13.3
4.7
12.3
1.7i
10.6
19.8
14.9
4.9'
Air Pollution Control
Authorization 25.5 30.5 46.0 109.0 185.0 134.3
Appropriation 21.0 26.6 40.1 64.2 88.7 95.8 "
Gap 4.5 3.9 5.9 44.8 96.3 38.5
Land and Water Conservation Fund
Authorization * 260.0 200.0
Appropriation 122.1 95.0 113.1 164.5 124.0'
Gap 95.5 76.0
Highway Beautification Act
Authorization 169.0 160.0 « 26.1 31.3
Appropriation 70.8 81.5 « 0 N.A.
Gap 89.2 78.5 .... 26.1
Treatment Plant Grants
Authorization
Appropriation
Gap.
Authorization
Appropriation
Gap _
. . .... 150
141
9
Water and Sewer Grants
200
200
150
1735
200
100
100
450
203
247
200
165
35
700
214
486
420
165
255
1,000
214'
766
605
135'
470
' Estimated.
a In fiscal years 1966-1968 program level was determined by actual receipts to the fund plus receipts in excess of
appropriations for prior years. Amendments to the Act in fiscal year 1969 guaranteed an annual income to the fund of
$200 million for five years.
3 House Committee allowance 7/10/69.
* Amendments to the 1965 Act changed funding from straight authorization to contract authorization. No new funds
appropriated in FY 1968.
' Appropriation higher than authorization shown because of open-ended authorizing provision then in law.
[P- 27]
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GUIDELINES AND REPORTS 3289
Appendix C
URBAN RECREATION
Nowhere is the need for open space and recreational facilities greater
than in our cities. The federal Land and Water Conservation Fund pro-
gram and the federal Open Space Program should be strengthened to meet
this need.
A beginning has been made. In its own park program, the federal
government has been increasingly emphasizing areas accessible to city
people. Along the Eastern Seaboard, for example, there is the Fire Island
National Seashore, the Assateague National Seashore, and the future
Tocks Island National Recreation Area. All are easily accessible by car
to major metropolitan areas.
By ear. This is the crucial qualifying phrase. Fine as these areas may
be, they are essentially facilities for the middle class. For the people who
need recreation the most, the poor of the central cities, these facilities are
for all practical purposes inaccessible.
We believe more federal projects must be located within metropolitan
areas. Secretary Hickel's proposal for a Gateway National Seashore in the
New York area is an outstanding example of the kind of initiative we
bespeak.
Of the $78 million allocated to the states under the Land and Water
Conservation Fund, only about 37 percent have gone to urban areas.
Within the urban areas, furthermore, the bulk of the money has gone to
suburban rather than central city areas.
The emphasis has been understandable. The LWCF funds are generally
channeled through state recreation agencies, and their historic bias has
been towards projects in fringe and rural areas where land costs are lower.
In terms of people served, however, higher cost land centrally located
is economically just as practical. Socially, it is a necessity.
We recommend that the Land and Water Conservation Fund program
be amended so that the Secretary of the Interior can (1) require states
to channel a larger share of the grant monies to urban areas; (2) be given
discretionary authority to make grants directly to large cities when the
circumstances warrant.
The Open Space Program administered by HUD has channeled all of
its grants to metropolitan areas, but for a number of reasons, relatively
little money has been available for central city areas.
[p. 28]
One problem is funding. The average cost of acquiring land in central
cities is $50,000 per acre, and the cost of development ranges from $7,000
to $13,000 an acre. Even at the authorized levels of the program $310
million in '68-'69—there is matching money for only a fraction of the
projects needed. The actual appropriations, however, have been $75 million.
As a minimum step, we believe the grant programs must be brought up
to the authorized levels.
INNOVATIVE APPROACHES
There need to be stronger incentives for new approaches. In both the
Open Space and LWCF programs, the bulk of the grant money has gone
-------
3290 LEGAL COMPILATION—GENERAL
to conventional park projects, and there have been disappointingly few
attempts to apply the money to innovative programs and techniques. Such
innovation is especially needed in cities, for the shortage of space demands
new approaches—the use of air rights, for example, rooftops, and small
mobile parks.
The federal administrators do not have enough carrot to offer. When
the grant programs were originally drafted, it was thought that there would
be experimentation. While the legislation encouraged it, however, it left
the matter up to the people on the receiving end. Since they invariably
have a backlog of conventional projects, that is where almost all of the
money has gone.
In the HUD Urban Beautification Program, there was a provision for
90 percent demonstration grants. This spurred a number of innovative
projects. Not much money was available for the demonstration programs,
however, and the appropriation committees further curbed the program
by cutting the grants down to the 50 percent level of the regular grants.
The idea was to make the matching money go further. The effect, however,
has been virtually to extinguish the demonstration incentive. Innovative
projects usually incur considerable additional costs. Experience has shown
that unless the demonstration grants provide cities with more money
incentive than those for standard projects, they will choose standard projects
almost every time.
We recommend that the demonstration grants be restored to the 90
percent level, and that sufficient sums be provided to make the program
effective.
In the case of the Land and Water Conservation Fund, we recommend
that the Secretary of the Interior be given discretionary authority to make
demonstration grants up to 90 percent level directly to cities.
[p- 29]
CITIZEN ACTION
The greatest untapped potential is in the field of citizen action. The
Urban Beautification Program administered by HUD is a prime case in
point. This was originally conceived as a means of stimulating governments
to enlist the private sector in a broad range of joint programs. Again,
as in the Open Space Grant Program, many worthwhile projects have
been stimulated. In all but a few cases, however, what they boil down to
is additional efforts by the city to plant trees and spruce up various public
facilities, park facilities chiefly.
There should be a much greater multiplier effect. We believe that the
program should be broadened so that more grant money can be applied
to stimulate matching efforts by civic organizations, neighborhood groups,
commerce and industry. The projects, of course, would have to be in
accord with the overall plan of the city and be conducted under the super-
vision of the appropriate city agencies. But this should pose no difficulty.
On a small scale, matching programs of this kind have been tried in several
cities and they have proved very effective. In New York City, for example,
the Parks Department recently instituted a matching street tree program.
If a local group will pay for a given number of trees, the Parks Department
will plant them and add a bonus of an additional three trees for every two
-------
GUIDELINES AND REPORTS 3291
that the group pays for. This program is what sparked the planting of some
6,000 trees.
In almost every city there are a number of private organizations which
would be eager to drum up expanded citizen effort. As a matter of fact,
most of the innovative programs in the field of urban recreation—such as
adventure playgrounds, portable parks, and the like—have been largely
instigated, and in many cases financed, by such groups.
We recommend that the HUD programs be amended so that grants
for open space development and programming can be made to private
groups whose programs are carried out on public land or on private facilities
open to the public. This could be a strong shot in the arm for the many
private groups who are anxious to expand their activities in low-income
areas. The Boy Scouts of America, for example, has been expanding its
ghetto-oriented programs and would like to expand them more and to
non-profit recreation activities for non-scout children.
Similarly we recommend that demonstration grants be made available
to non-profit institutions for technical assistance.
[p. 30]
OPERATING PROGRAMS
Another big problem in urban recreation is maintenance and operation
of the facilities that already exist. Most grant programs have been for
capital expenditures, and valuable as these have been, they have put some-
thing of a strain on the cities' capabilities to keep up what they have.
In most cities, the park maintenance situation has reached very serious
proportions. Some capital projects for which money might be available have
had to be deferred because there would be no prospect of squeezing out
of the city operating budget sufficient funds to maintain the facilities.
Ironically, more was available for maintenance in the depression years
than today. At that time, cities could count on additional manpower for
help through the various federal public works programs. It seems odd
to think of the depression years as the golden years for parks. The fact is
that they were better maintained then and had newer facilities than we
have today.
For any long-range solution, the state and federal governments will
have to bear a larger share of the maintenance load than they have been.
We believe that the federal and state governments should begin giving
annual funds for operating programs. The basic idea of the federal pro-
grams is to help communities create a better environment. A logical part
of this most certainly should be a better use of the parks that exist.
One way that this might be achieved is to amend the grant programs
so that up to 25 percent of the total annual grant fund could be alloted
to park maintenance and recreation training activities.
There should be also incentives for the development of new maintenance
technology. It is very backward. Many parks are being cleaned just the
way they were a hundred years ago—by men with pointed sticks. We
recommend 90 per cent demonstration grants for research and development
efforts for park maintenance.
We might wish to consider a direct federal program for maintenance
technology. This could take the form of demonstration and development
programs at one of the new urban federal parks. If the new Gateway
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3292 LEGAL COMPILATION—GENERAL
National Seashore becomes a reality, for example, there could be a project
to test new kinds of beach cleanup equipment.
Another great need is for recreation training. The most catalytic factor
in urban recreation is leadership—not only skilled recreation leaders but
part-time volunteers, most importantly, people from the neighborhoods.
But little funds are available for training programs.
We recommend that the Open Space and LWCP programs be amended
so that grants can be used for recreation training activities.
[p. 31]
SWIMMING POOLS FOR CITY CHILDREN
If there is one thing that city neighborhoods need most, it is good
swimming pools.
Recreationally, this is by far the biggest demand item in cities today.
Unfortunately, however, it is the one kind of facility that cities can't get
federal money for. Through none of the HUD programs can swimming
pools be funded save on a small scale through the Neighborhood Facilities
Program. They are not available through the Land and Water Conservation
Fund in most cases because of its minimum acreage stipulations.
Why not a major new federal program for swimming pools for city
children? It could, theoretically, be a part of existing grant programs
through amendments to the legislation. But it would have more appeal—
and saleability—if it were given its own identity and label.
It would of necessity have to cost a fair amount of money. A full size
45' x 75' swimming pool runs roughly $400,000 in today's dollars. If the
program were to make any dent, a lot of swimming pools would have to
be financed. Some years ago a HUD staff proposal was worked up for a
9-year program, at an estimated cost of $250 million for 4,000 pools. The
goal was to be a pool within walking distance of every slum neighborhood.
The proposal didn't get any further than the Bureau of the Budget.
But the time may be right to launch this program or at least make a
good start.
[p. 32]
4.3b Report to the President and the President's Council on
Environmental Quality, Citizens' Advisory Committee on
Environmental Quality, April 1971
PEOPLE AND LAND
Of all the factors that determine the quality of our environment,
the most fundamental is the use we make of our land. Most of the
environmental problems we face today stem from misuse of the
land. This misuse has been rationalized over the years on two
shortsighted premises—that our supply of land was limitless and
that while an individual's use of his land might be unfortunate, it
was his right and of no concern to the community. Today we know
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GUIDELINES AND REPORTS 3293
differently. We know that the way each acre of land is used is of
concern to the community and, ultimately, to the Nation and to the
world.
LAND USE PLANNING
"Throughout the Nation," the President has declared, "there is
a critical need for more effective land use planning, and for better
controls over use of the land and the living systems that depend on
it ... I believe we must work toward development of a National
Land Use Policy to be carried out by an effective partnership of
Federal, State, and local governments together, and, where appro-
priate, with new regional institutional arrangements."
Land use planning and control has traditionally been a local
and, to a lesser degree, a State responsibility. It now should be
recognized as a Federal responsibility as well.
First, no part of the Nation is an isolated enclave where use of
the land has no effect upon other areas. On the contrary, the use of
[p. 5]
land in a large metropolitan area has an effect upon rural areas
hundreds of miles away in other States. Second, national environ-
mental standards are needed to place the States on an equal basis
and prevent unfair "pirating" of industry to areas of less strict
control. Third, with increasing Federal funds going to States and
cities for environmental programs, the Federal Government has a
responsibility for assuring that these funds are spent wisely and
in accordance with well-conceived land use plans. Through the
setting of standards and the making of grants, the Federal Gov-
ernment can exert significant pressure for improving local and
State planning. The point is not to pre-empt State and local ac-
tion ; it is to invigorate it.
Until recently, Federal land use planning has been concerned
chiefly with the large open spaces in the undeveloped parts of the
country. The Public Land Law Review Commission invested five
years in an investigation of the one-third of the United States
owned and controlled by the Federal Government; legislative pro-
posals will be forthcoming, embracing all or part of the resulting
recommendations. A great deal of thought and research have gone
into this category of land.
We believe urban land is the critical problem. Important as the
large open areas may be, it is in the urban areas that the great
bulk of Americans live, and they live nowhere near so well as they
can and should. We find it encouraging that the Administration's
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3294 LEGAL COMPILATION—GENERAL
legislative proposals for land use planning emphasize these urban
needs.
There are many tough questions to be resolved. In what areas
should residential and industrial growth be encouraged? In what
areas should it be discouraged? What system of compensation
should there be to insure that the cost of environmental conserva-
tion for the good of the many will not fall inequitably on the few ?
Why, we wonder, have so many "model cities" been fully planned
over the years—cities that would provide an excellent living envi-
ronment—and so few actually materialize? What can be done to
bring more of such projects into being and make them work?
A major move to grapple with such questions is the recent
enactment of Title VII of the National Housing and Urban Devel-
opment Act of 1970. In it the Congress declares that "the Federal
Government, consistent with the responsibilities of State and local
government and the private sector, must assume responsibility for
[p. 6]
the development of a national urban growth policy which shall
incorporate social, economic, and other appropriate factors. Such
policy shall serve as a guide in making specific decisions at the
national level which affect the pattern of urban growth and shall
provide a framework for development of interstate, State, and
local growth and stabilization policy."
The Act establishes guidelines for a national urban growth pol-
icy, calls for a biennial Report on Urban Growth, and authorizes
financial and technical assistance to private developers and State
and local public agencies "for encouraging the orderly develop-
ment of well-planned, diversified, and economically sound new
communities, including major additions to existing communities
jj
It also calls for stronger State and regional planning. Through
expanded "701" planning incentives, the Secretary of Housing and
Urban Development will encourage State and regional efforts to
shape future growth patterns. While the language of Title VII is
broad enough to encompass more than urban areas, it does not
appear to cover the entire land spectrum encompassed by the bill
[S.3354] reported by the Senate Committee on Interior and Insu-
lar Affairs in the 91st Congress or by the recently submitted
Administration bill to encourage effective land use by the States.
The Committee recommends that any additional legislation in this
field be closely coordinated with the provisions of Title VII.
Title VII vests responsibility for Federal review of land use
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GUIDELINES AND REPORTS 3295
planning in the Secretary of Housing and Urban Development.
S.3354 would place it in a Land and Water Resources Council
made up of various agency representatives. The Administration
bill would give major authority to the Secretary of the Interior. It
is the Committee's view that the Federal interest in land use
planning and policy encompasses several departments and agen-
cies, under either the existing Executive Branch organization or
that proposed by the President. We believe, therefore, that the
coordination of land use policy could be most effectively exercised
by a unit in the Executive Office of the President.
The Committee strongly supports the President's proposal to
establish a Department of Natural Resources. We believe it would
substantially improve the effectiveness of government and contrib-
ute to better land use planning and control.
[P. 7]
POPULATION GROWTH AND DISTRIBUTION
Population growth affords no grounds for complacency. Because
the birth rate has been generally declining since 1957, some people
deprecate it as a problem. Lately, there has been comment in the
press to the effect that population growth, after all, is only one of
many factors contributing to environmental pollution. This is true
enough. But population growth is no less critical for that. Because
of the births that have already taken place, the momentum is such
that the growth is bound to continue for several decades. Even if
the birth rate were to drop to the stabilization rate of 2.1 children
per family—which is not likely to happen—the Nation's popula-
tion could increase by 100 million in the next 50 years.
Fairfield Osborn described the dilemma in these words:
Are we not running such a busy race for food, space, and
employment for even greater numbers, that we are for-
getting the purpose of it all—a better living for human
beings? What is humanitarianism? Is it trying to disperse
and feed more people, or is its objective a better quality of
living for each individual and mankind as a whole?
In recognition of the serious implications of population growth,
the President proposed and the Congress approved legislation to
authorize a Commission on Population Growth and the American
Future. Because of the close relationship between population and
the environment, we are keeping in touch with the work of that
Commission.
Distribution of the population is as serious a problem as its
growth. The transformation of the United States from a rural to a
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3296 LEGAL COMPILATION—GENERAL
predominantly urban nation in the last half century has been a
major cause of many of our environmental problems. A more
balanced distribution of the population should be one of the goals
of our land use programs.
New approaches are needed. Urban renewal as carried out dur-
ing the last 20 years has not provided a better environment for the
people. "Slum clearance" projects usually have been people-rout-
[p.9]
ing projects, directed toward salvaging potentially valuable, tax-
producing construction sites. People have been the pawns; too
often they have been scattered forcibly to any available shelter or
transferred from horizontal slums into vertical ones.
The Model Cities program has brought about some improve-
ment, but it is still in the experimental stage.
An approach which holds great promise is the creation of new
towns. The British have had considerable success with these new
towns, and there is a growing tide of support in the United States
for a comparable effort here.
In Title VII of the Housing and Urban Development Act of
1970, Congress authorized a $500 million program to develop new
towns. The term is generally interpreted to include both com-
pletely new communities, such as Reston, Virginia, and Columbia
Maryland, and the rebuilding of part of an existing community, or
new-towns-in-town.
The Committee believes that a soundly conceived new town pro-
gram can help achieve a better population distribution in the
United States. Such a program, however, would require many
changes in conventional practices—in zoning, for example, and in
property taxation. There is also a monumental problem involved in
assuring that sufficient industry will be built into the "new towns"
to make them economically viable.
The Subcommittee on Land Use Planning and Population Dis-
tribution is currently reviewing approaches being advanced in this
country, as well as the experience of foreign countries, and ex-
pects to make recommendations.
In the interim, the Committee makes two recommendations:
first, that no new community be initiated without adequate provi-
sion for public control of land use; and second, that priority be
given to new towns within or close to the inner cities. The need for
rehabilitation is urgent; and many of the necessary urban facili-
ties are already in place and can be extended if required. They
would not have to be constructed from scratch. In its considera-
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GUIDELINES AND REPORTS 3297
tion of new towns, the concern of this Committee is improving the
quality of life—not only developing our recreational potential and
abating pollution and preserving the landscape, but enhancing the
whole living environment.
[p. 10]
USE OF FEDERAL LANDS
The use of Federal lands is currently the subject of extensive
discussion throughout the Nation. In its recent report, One Third
of the Nation's Land, the Public Land Law Review Commission
made far-reaching recommendations concerning the use of the
vast acreage of Federal lands. During 1970 the Senate Committee
on Interior and Insular Affairs held extensive hearings on land
use planning and, late in the year, reported favorably on a bill
[S.3354] which, if enacted, would have been the Land and Water
Resources Planning Act. The Council on Environmental Quality
has studied the subject extensively, and the Administration has
recently proposed legislation to encourage effective land use by the
States.
The Committee strongly supports the proposal made by the
President in his Environmental Message of February 10, 1970,
that "we adopt a new philosophy for the use of Federally-owned
lands, treating them as a precious resource—like money itself—
which should be made to serve the highest possible public good."
The Committee also agrees with the emphasis placed by the
President on identifying Federal properties that could appropri-
ately be converted to parks and recreation areas. The Committee
inspected the existing and former military installations on both
sides of the Golden Gate in California, which have been proposed
in legislation for inclusion in a Golden Gate National Recreation
Area. The Committee recommends that those areas on both sides
of the Golden Gate not needed specifically for military purposes be
incorporated in such an area.
Since park lands owned by the State of California and the City
of San Francisco are intermingled with these Federal lands, there
is an excellent opportunity for joint Federal-State-local adminis-
tration of a National Recreation Area. The Committee has recom-
mended this type of administration as a means of providing all of
the people concerned with the area a voice in its management.
The recent enactment of Public Law 91-485 makes it possible
for States and local governments to obtain Federal surplus prop-
[p. 12]
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3298 LEGAL COMPILATION—GENERAL
erty for park and recreation purposes at no cost. The Committee
urges that full use be made of this new law, in urban areas
especially.
LAND AND WATER CONSERVATION FUND
To strengthen the recreation grant program financed by the
Land and Water Conservation Fund, the President requested full
funding for the program in fiscal year 1971, and the Congress so
provided. Congress also enacted legislation in 1970 increasing the
input to the Fund from $200 million to $300 million per year. The
President has again requested full funding under the expanded
authorization for 1972, and we urge the Congress to appropriate
the budget request.
Two thirds of the $177 million appropriated for the States in
1971 was apportioned on the basis of population residing in metro-
politan areas of 250,000 or more. This is an important step toward
meeting the recreation needs of the larger cities, and we recom-
mend that this emphasis be continued. The Administration's pro-
posed amendments to the Land and Water Conservation Fund Act
would direct more of the Fund monies to urban areas. We endorse
these amendments and recommend two additional ones.
First, we concur in the recommendation of the Public Land Law
Review Commission that the Act be amended to permit use of the
Fund for development of needed recreational facilities on Federal
lands.
Second, we recommend an amendment permitting States and
cities to use some Fund money for operation and maintenance of
recreation areas. At present, States and cities can get money only
for acquisition and development. Many cities, however, do not
have the money to adequately staff or maintain the recreation
areas they already have. Federal aid for these purposes could
provide additional recreation opportunities in these areas more
quickly than further acquisition or development.
[p. 13]
ISLANDS
The unique recreation characteristics of American islands have
until recently been almost completely overlooked. In August 1970,
however, the Bureau of Outdoor Recreation published a report,
Islands of America, which brings the previously scattered knowl-
edge of our islands into focus. The report finds that many undevel-
oped islands are endangered by unwise development and identifies
a variety of conservation opportunities for governmental and pri-
-------
GUIDELINES AND REPORTS 3299
vate action. It proposes a National System of Island Trusts to be
administered by commissions comprised of Federal, State, and
local representatives. The Committee recommends that these pro-
posals be adopted as elements of a national land use policy.
HIGHWAYS AND PUBLIC TRANSPORTATION
The 1965 highway beautification legislation, authorizing land-
scaping and control of outdoor advertising and automobile junk-
yards, is not being funded or implemented. This is most unfortun-
ate. It is also illogical. Congress found that the scenic enhance-
ment part of the program has been working well. Because the
billboard part had not, however, it discontinued appropriations for
both and decided to study the matter instead. In the Federal Aid
Highway Act of 1970 [P. L. 91-605], Congress established a
Commission on Highway Beautification to study and review the
existing law, policies, and practices related to control of outdoor
advertising and junkyards, as well as sources of financing, includ-
ing possible use of the Highway Trust Fund. The Committee be-
lieves that the Highway Trust Fund should be used for highway
beautification.
The Administration has indicated in its recent proposal for
revenue sharing in the transportation field the desire to give more
Trust Fund aid free of strings. We commend the idea of opening
[p. 14]
the Highway Trust Fund for purposes other than highway con-
struction. We urge that an adequate share of these Trust Fund
monies be devoted to the protection and beautification of rights of
way.
We also believe the Fund should be used to develop needed
public transportation. For the last two decades the emphasis has
been almost entirely on highway building, with cities being given
highways they did not want or need, instead of money for public
transit they did. We are pleased to note, therefore, that the Ad-
ministration proposal for revenue sharing would permit a State,
at its option, to use a portion of its money from the Highway
Trust Fund for public transportation systems.
ENVIRONMENTAL IMPACT STATEMENTS
The National Environmental Policy Act requires that all Fed-
eral agencies include in every recommendation or report on pro-
posals for legislation and other major Federal actions significantly
affecting the environment, a detailed statement on the environ-
-------
3300 LEGAL COMPILATION—GENERAL
mental impact of the proposed action. The response of the Federal
agencies to this requirement has unfortunately been spotty.
We urge full and timely disclosure of environmental impact
statements. The revised guidelines proposed by the Council on
Environmental Quality should help agencies fulfill their obliga-
tions.
[P. 15]
ENERGY PRODUCTION AND USE
Energy, from whatever source and in whatever form, is essen-
tial to the quality of our life. Coal, oil, natural gas, uranium, and
falling water provide directly, or through conversion to electricity,
the energy without which we would not have the heat, light, trans-
port, and industrial production we take for granted. Yet, the pro-
duction of energy—at the mineral extraction stage at the point of
conversion, and in the process of distribution or delivery—causes
significant damage to our environment in such forms as strip
mining, air pollution, overhead transmission lines, and oil spills.
The public objects to the damage, and often it objects even to the
construction of essential new facilities. The public also objects,
however, when the energy is not delivered and when a shortage of
fuel or power adversely affects public necessities or conveniences.
The problems are compounding. There is a limited supply of
resources to produce energy, but a rapidly accelerating demand.
Not only is the population growing, there is a growing per-capita
use of energy—more appliances, more automobiles, and more in-
dustrial and commercial consumption. If present trends do not
change, a recent study suggests, by 1980 there is likely to be an
increase of about 50 percent in the United States energy require-
ments ; by 2000, 300 percent.
The objective should be to assure that necessary energy will be
produced with the best technology available and with minimum
damage to the environment, but without unnecessary delay. There
must be a proper balance between our needs for energy and our
concern for environmental protection.
Increased concern in recent years for environmental quality was
much needed and has been welcomed by all responsible citizens. It
has made people aware of many serious problems and has led to
the start of numerous corrective programs and the acceleration of
others. In some instances, however, there has been a tendency to
[p. 17]
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GUIDELINES AND REPORTS 3301
exaggerate this concern at the expense of urgent social and eco-
nomic needs. This has resulted in prolonged delay or complete
stoppage of nroiects that had long been planned to meet urgent
needs. We believe this is shortsighted.
RESEARCH, DEVELOPMENT, AND PLANNING
The need for additional research and development is clear. The
internal combustion engine and thermal electric generator, even in
their most advanced versions, are relatively inefficient. For envi-
ronmental quality as well as economics, more efficient processes
are vital.
The Committee recommends that the Federal Government pro-
mote increased research and development on more efficient and
relatively pollution-free energy processes. In the electrical field
these would include breeder reactors, magneto-hydrodynamics, the
reduction of waste heat, improved means of transmission, and in
the future, controlled fusion and solar energy—both practically
unlimited sources.
The investment of Federal funds in research and development
work for which sufficient industry financing cannot reasonably be
expected, would be a relatively low-cost/high-benefit expenditure.
Tax incentives to increase industry investment in research and
development should also be considered.
The construction of new energy facilities, as well as new indus-
tries or services that consume large quantities of energy, should be
subject to particularly careful planning. The Energy Policy Staff
of the Office of Science and Technology made certain recommenda-
tions, and the President subsequently incorporated them in his
Environmental Message of February 8, 1971. The Committee be-
lieves it important that they be implemented. They include: long-
range planning for essential facilities on a regional basis; partici-
pation in the planning by environmental protection agencies, with
adequate opportunity for public comment; preconstruction review
and approval of all new, large power facilities by an appropriate
[p. 18]
public agency; an expanded research and development program
for better pollution controls, underground high voltage transmis-
sion, improved generation techniques, and advance siting ap-
proaches.
Legislation to implement these recommendations has been sub-
mitted to the Congress by the Administration. The legislation is
also intended to achieve the important objective of consolidating
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3302 LEGAL COMPILATION—GENERAL
at one decision-making point the numerous approvals now re-
quired at State and local levels. The Committee urges enactment of
this legislation.
With respect to the problem of coastal siting of power plants,
the Committee urges that consideration be given to underground-
ing coastal plants; siting on islands, natural and fabricated; siting
offshore under water; siting inland and using reclaimed waste
water rather than ocean water for cooling; and siting inland and
transporting ocean water for cooling.
SUPPLY AND DEMAND
The supply of energy resources is far more limited than our
profligate use of it would suggest. "If we were to bring all the
people in the world up to our standard of energy use," Secretary
of Interior Rogers C. B. Morton has pointed out, "the known
energy sources that exist in the world today would last only about
20 years."
The projected United States demand for energy could change.
Individual and corporate needs, government regulations, and the
efficiency of energy use could vary substantially in the future, and
change could be deliberately induced by public policy.
The report Electric Power and the Environment, sponsored by
the Office of Science and Technology, states:
The relative costs and benefits of present policies as con-
trasted with a policy of discouraging growth in energy use
should be carefully evaluated. It may well be timely to
re-examine all of the basic factors that shape the present
[p. 20]
rapid rate of energy growth in the light of our resource
base and the impact of growth on the environment.
The Committee believes that such a re-examination is an urgent
priority and recommends that the Domestic Council sponsor such
a study. What is needed is a comprehensive assessment of the
long-range outlook for energy in general, for the purpose of arriv-
ing at a broad national policy to guide the future development of
the energy industries along lines consistent with society's overall
needs and nature's overall limitations. The review must consider
both the environmental and economic implications of alternative
public policies for energy.
The Committee supports improvement of urban public transpor-
tation as a more efficient user of energy and urban land than the
private automobile. Better coordination of rail and highway trans-
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GUIDELINES AND REPORTS 3303
port, such as the greater use of piggyback trailers, could provide
energy savings, as well as relieve traffic congestion.
Citizens can help slow the demand for energy by wasting less.
The cost to the consumer of electricity, gas, and heating oil has
generally been such a small part of his budget or his rent that he
has thought of it like water—as being available for the user with-
out cost. Lights are left on, thermostats left up at night, and
engines left running. The cumulative effect of such waste by more
than 200 million people is substantial.
The Committee recommends that the Environmental Protection
Agency with the advice of the Office of Consumer Affairs, launch a
public education program for reducing energy waste.
RADIATION STANDARDS
One of the most controversial of environmental questions con-
cerns the radiation standards applicable to nuclear power generat-
ing installations. The substantial disagreement that has arisen
among scientists has attracted extensive national publicity. The
layman is understandably disturbed; he has no basis on which to
form his own judgment but is well aware that over-exposure to
[P.21]
radiation has damaging effects on people.
In December 1970, the responsibility of the Atomic Energy
Commission for setting radiation standards and all functions of
the Federal Radiation Council were transferred by the President's
Reorganization Plan No. 3 to the new Environmental Protection
Agency.
The National Academy of Sciences is now making a thorough
study of radiation standards for the Administrator of the Envi-
ronmental Protection Agency. We urge that special attention be
given to the problem of radiation hazard that might result from
earthquake damage to a nuclear plant. After reviewing the Na-
tional Academy study and before making a decision, the Adminis-
trator should publish proposed standards and assure that scien-
tists and citizens on both sides of the issue are given ample oppor-
tunity to express their views. Once the decision is made, the Ad-
ministrator should take special measures to insure that the public
understands the reasoning. This will be a critical example of the
importance of citizen understanding to a government program.
We have set up a subcommittee to study the issues and problems
of energy production and use and hope to develop further recom-
mendations for a much-needed national energy policy.
[P. 22]
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3304 LEGAL COMPILATION—GENERAL
POLLUTION ABATEMENT
The Committee commends the increased support for water pol-
lution control by the Administration. As the fiscal situation per-
mits, the Committee feels that a must priority for the Nation is
comparable attention to Federal air and solid waste management
programs. In making recommendations, however, we have kept in
mind the need for practicality and for low-cost/high-benefit ac-
tion. We also believe that some environmental programs already
under way can be made considerably more effective per dollar of
cost.
SOLID WASTE
The problem of solid waste recycling and disposal is exceedingly
complex. To be sure, its solution will require an increase in the
relatively small funds now devoted to technological innovation.
But it will also require changes in tax policy, freight rates, market
patterns, and consumer attitudes which presently favor the use of
virgin rather than recycled materials.
As soon as the fiscal climate permits, we believe that full imple-
mentation of the Resource Recovery Act of 1970 will accelerate
progress in research and demonstration projects necessary to ob-
tain the requisite technology in this field. Expenditures for ad-
vanced technology will help cut down much greater expenditures
for potentially obsolete facilities.
The Federal Government should also support efforts by private
industry and citizens to deal with solid waste recycling problems.
Examples include the efforts of bottlers, brewers, soft drink manu-
[p. 23]
facturers, aluminum and paper companies, and various citizen
groups in recycling of newspapers, containers for certain bever-
ages, and other products. Both State and municipal attention to
such recycling problems would be in order, too, as would their
enactment and strict enforcement of anti-litter laws.
About 85 percent of the refuse collected in the country is simply
dumped in open areas and burned periodically, if at all; only 5
percent is channeled into sanitary land fills. It should be public
policy that all open dumps be converted to sanitary land fills and
that open burning near urban areas cease. New York State has
recently established such a goal. Other States should follow suit.
We welcome the Bureau of Solid Waste Management's "Opera-
tion 5000," aimed at eliminating 5,000 of the some 14,000 open
dumps, in the next six months.
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GUIDELINES AND REPORTS 3305
There should be Federal legislation, as proposed by the Admin-
istration, to prohibit the dumping of solid and other wastes in the
ocean, except as authorized by the Environmental Protection
Agency.
The Committee endorses the legislative proposals concerning
junk-car disposal contained in the first report of the National
Industrial Pollution Control Council. These proposals include local
and State ordinances and legislation to expedite title clearance and
to prohibit and control the accumulation of junk cars. The States
should adopt as a model the junk-car legislation recommended in
1967 by a committee of the Council of State Governments.
AIR POLLUTION
The Committee urges full implementation of the Federal air
pollution abatement program as funds become available, up to
levels provided under the Clean Air Act of 1970.
More should be done to curb air pollution caused by automo-
biles. Both industry and government should be encouraged to ac-
[p. 25]
celerate the pace of research on unconventionally powered automo-
biles.
A phasing-out, or drastic phasing-down, of lead in gasoline is a
necessary step. We support a tax on leaded gasoline. This could be
raised step by step over several years, as non-leaded fuels and
engines that use them become generally available. The Federal
Government has used its procurement policies to stimulate in-
dustrial production of unleaded gasoline: State and local govern-
ments should do the same. A compulsory but phased program of
fitting automobiles with retrofit air pollution control devices over
the next few years should also be carried out.
The Committee supports the President's proposal for a Clean
Air Emissions Charge on emissions of sulphur oxides. As he has
stated, "In terms of damage to human health, vegetation, and
property, sulfur oxide emissions cost society billions of dollars
annually."
i'
WATER POLLUTION
With certain limited exceptions, tertiary treatment of all waste
water [or technologically equivalent treatment producing reusable
water] should be adopted as the ultimate goal of the water quality
program. At present, there are already 135 tertiary treatment
plants in existence or under construction in the United States. An
-------
3306 LEGAL COMPILATION—GENERAL
appropriate timetable for the conversion to tertiary treatment
should be set.
The technology for processing sewage effluent to drinking
water quality is available. At present, the approximate cost of
tertiary treatment equals that of primary and secondary com-
bined. Upgrading to tertiary standards would almost double the
cost of both capital construction and operations. But tertiary
treatment is fast becoming essential, particularly in urban areas.
There is a good potential for recovering some costs through
reuse of the effluent for recreational purposes, irrigation, and for
drinking water. The tertiary treatment plant at Lake Tahoe, for
example, produces water for both a recreation lake and farm irri-
[P. 27]
gation. At Windhoek, South Africa, a plant supplies 27 percent of
the drinking water for a town of 36,000. At Windhoek, where
drinking water is scarce and expensive, projections showed that
sewage purification would be less costly than other sources of
supply. Costs must be viewed in the context of alternatives.
It is also important that the States be urged to bring their
water quality standards up to the level of Federal requirements.
They should adopt regional and river basin programs for their
waste, rather than continue on a fragmented, sewage district-by-
sewage district basis. If they do not, there will be no comprehen-
sive water pollution abatement—one State's negligence being ca-
pable of offsetting another's diligence on a shared river. The same
is true for intra-State and local sewage treatment systems: Re-
gional planning, sharing of sewage system treatment facilities,
even centralized plants, will be required if clean water is to be
secured at reasonable cost.
Both research and public education are necessary to develop
new technology and to stimulate responsible use of our water
supplies.
While the Committee has not had the opportunity of studying in
detail the Administration's proposed amendment to the Federal
Water Pollution Control Act, it supports the effort to strengthen
and clarify Federal authority in the establishment and enforce-
ment of water quality standards.
Through Executive Order 11514 of March 5, 1970, the Federal
Government has affirmed its intention of setting an example in
pollution abatement. The promise is there; what is needed is ac-
tion. We believe the States should enact similar legislation for
environmental standards. They should also consolidate various pol-
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GUIDELINES AND REPORTS 3307
lution abatement programs in one overall environmental protec-
tion agency, as New York and New Jersey have done.
The Committee supports the growing use of existing legislation
to enforce industrial, even governmental, compliance with Federal
water quality standards—specifically, the National Environmental
Policy Act of 1969 and the 1899 Refuse Act.
In the implementation of the latter, certain points should be
made clear. We believe that any permits issued under the 1899 Act
should not be considered long-term licensing of industrial or other
pollution, but rather as temporary permits for relatively brief
time periods and subject to re-evaluation. Full public disclosure of
[p. 28]
the content of licensed pollutants should be required, in addition to
provision of public review and comment on proposed industry
effluent standards. The Act's enforcement should be consonant
with environmental legislation already enacted, recent court deci-
sions, and State and local land use plans. The regulations issued by
the Corps of Engineers in April 1971 appear to cover these points
adequately.
Oil tanker accidents have been posing a serious pollution prob-
lem. We believe that these accidents and resultant oil spills are
avoidable, and that governmental action is necessary to see to this.
Specifically, we recommend establishment by the Federal Govern-
ment of strict regulations and radar navigation standards for the
movement of oil tankers in and around United States ports, par-
ticularly during poor weather and during the night.
A new river basin approach to sewage disposal was proposed to
the National Governor's Conference in February 1970 by a study
team of the Committee. It envisioned single ownership through a
state-created public corporation of all liquid waste disposal plants
and lines. The study team determined through its research that
great economies would result—perhaps saving as much as one-
third, and whole streams could be purified more effectively. The
proposal was published in a booklet entitled: "A New Approach to
the Disposal of Liquid Waste."
NOISE POLLUTION
Noise degrades our environment no less than the more tangible
pollutants, particularly in our cities, and it is good that the Fed-
eral Government is becoming increasingly concerned about it. But
much more action is needed at all levels of government. So far,
most of the attention has been heavily concentrated on aircraft
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3308 LEGAL COMPILATION—GENERAL
noise. We agree with the Administration that it should be broad-
ened to include noise caused by vehicles, heavy construction equip-
ment, lawnmowers, snowmobiles, and other mechanical devices.
The Committee intends to formulate additional proposals for
noise abatement.
[p. 29]
ENVIRONMENTAL EDUCATION AND CITIZEN RESPONSIBILITY
Citizen concern over the quality of our environment is not a
transitory phenomenon. It was long in coming, is decidedly here to
stay, and will grow stronger with the passage of time.
Only a few years ago the word "ecology" was little heard of. As
it had been since the turn of the century, environmental quality
was the concern of a relatively small number of individuals, and
they were interested primarily in the preservation of natural re-
sources. Much was accomplished: the preservation and manage-
ment of timber, range, and water in the national forests; estab-
lishment of national parks, parkways and trails, historic sites and
national wildlife refuges.
CITIZEN CONCERN
But now there is a greatly broadened interest. The total envi-
ronment has become the cause, and in this more embracing con-
cept the emphasis is increasingly on the delicate relationship be-
tween people and resources. The mass media have grasped the
connection and have elevated environment to a prime human in-
terest topic: witness the massive coverage given the proposed
Alaskan pipeline, the SST, and mercury contamination in seafood.
The change in public attitudes has been dramatic. A recent poll
indicates that Americans now rank pollution as the number one
[P. 31]
problem facing their local communities, and favor increasing gov-
ernmental and citizen action. Indeed, during the last two years,
thousands of citizen groups have emerged to lend their efforts to
the battle for environmental quality.
But when it gets down to specifics, let it be noted, citizens can
be inconsistent. "Popular" attitudes toward electric power and
water consumption, for example, have surely complicated the en-
ergy and water pollution problems facing this country. The poor
response to campaigns for recycling the "returnable" container is
another example; still another is the response to local anti-litter
laws, that demand little and too often receive inadequate coopera-
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GUIDELINES AND REPORTS 3309
tion. The Committee believes that a nationwide education cam-
paign aimed at the reduction of waste of all types would be a
valuable contribution to environmental quality.
The best way to spur action by citizens is to involve them in the
decision-making processes. We would urge more consumer-ori-
ented organizations like that of The Environmental Defense Fund,
and even ad-hoc, single-purpose groups created to challenge public
or private action posing a threat to the environment.
FEDERAL PROGRAMS
Federal environmental education programs can help greatly. To
date, most of the Federal activity has been under the aegis of
legislation for Office of Education programs. With the enactment
in 1970 of the National Environmental Education Act, a strong
new impetus has been added. The Act authorizes grants and con-
tracts to institutions of higher education, State and local educa-
tional agencies, regional educational research organizations, and
nonprofit public and private agencies such as libraries and mu-
seums. Through these grants and contracts, eligible organizations
can develop programs, and provide public information, technical
assistance, and both pre-service and in-service training for teach-
ers and other public service personnel. Small grants may be
awarded to citizen's organizations and volunteer groups for a va-
riety of adult education programs. To provide a coordinating
[p. 32]
agency for Federal programs, the Act establishes an Office of
Environmental Education in the Office of Education.
We urge full implementation of the Act as soon as feasible. We
also urge increased use of Title III funds for pilot environmental
education programs, including evaluation of the programs to de-
termine which approaches are worth widespread adoption.
Other Federal programs deserve commendation. The National
Park Service of the Interior Department has developed two model
environmental education programs, NEED and NESA, aimed at
elementary and high school students. The Agriculture Depart-
ment's Cooperative Extension Service and the Forest Service have
initiated a number of environmental education projects. The Na-
tional Science Foundation has financed several successful environ-
mental curriculum development programs.
The newly authorized Youth Conservation Corps, to be adminis-
tered by the Departments of Interior and Agriculture, will provide
-------
3310 LEGAL COMPILATION—GENERAL
good training and at the same time provide vital manpower for
many necessary projects.
PRIVATE EFFORTS
Many environmental education programs are being conducted
by conservation groups, citizen organizations, corporations, and
by business and professional groups. Time and again groups have
formed around a particular environmental issue with the aim of
urging the public to action. Consumer education groups, perhaps,
constitute the most striking example of this.
Valuable as the private programs have been, however, there
have not been enough of them, nor have they been meshed suffi-
ciently with one another. We believe that there ought to be much
stronger information campaigns via all media.
How-to information for citizens is too often scattered, overlap-
[p. 33]
ping, incomplete, and sometimes nonexistent. A good base for an
adequate program, we believe, would be a national clearinghouse
for environmental information, coupled with a well-advertised
outreach mechanism to the people.
During the coming year, the Committee plans to expand its
contacts with citizen groups with the dual purpose of encouraging
their efforts and obtaining as broad a cross-section as possible of
citizen thinking.
Corporations have been enlisting in the environmental cause.
Here are some of the ways:
• Participation in joint industry-governmental projects, such as
the Commerce Department's advisory National Industrial Pollu-
tion Control Council, the Defense Department's Jobs for Veter-
ans program, and the Electric Utility Industry Task Force on
Environment set up by the Citizen's Advisory Committee.
• Industrial and business sponsorship of citizen education pro-
grams about the environment. A good example is the Xerox
Corporation's television series, "Mission: Possible," and their
publicizing of the Committee's citizen action guide.
• Industry-wide programs to develop pollution abatement technol-
ogy, to deal with waste products. The efforts of the American
Paper Institute and others, to spur trie recycling ui p^p,^, ^cws-
papers and magazines, are an example.
• Voluntary action taken by business firms, such as programs of
oil companies to reduce visual pollution at service stations.
Positive governmental incentives to encourage industrial re-
-------
GUIDELINES AND REPORTS 3311
sponsibility include: channeling more funds to spur industrial
house-cleaning programs; offering tax incentives; underwriting
research and development work in the field of pollution abate-
ment ; and eliminating certain legal barriers to large scale cooper-
ative efforts by corporations for cleaning up the environment.
It is obvious that some of the corporate embraces of the envi-
ronment have been self-serving public relations and little else. To
spur a more complete conversion, governmental sanctions must be
used also. Enforcement of existing regulations and enactment of
new legislation or executive action designed to curb certain corpo-
rate practices would be in order, as would imposing penalty taxes
[p. 35]
or fines on and requiring full disclosure of corporate practices and
products considered detrimental to the environment. User fees,
licensing powers, and selective government procurement practices
can also exert beneficial leverage.
WHITE HOUSE CONFERENCE ON LAND USE
The Committee believes that a White House Conference on Land
Use would prove of great value and that it should be held as soon
as possible. It would provide an excellent forum for both profes-
sional and citizen opinion and could generate strong public inter-
est in more effective use of land. Such a conference could also help
the United States prepare for the United Nations Conference on
the Environment to be held in Stockholm in 1972.
We are pleased to note that UN Conference planning, which had
originally emphasized the environmental problems of developed
countries, is now devoting equal attention to the still developing
countries. The United States can help these countries with techno-
logical guidance—and with guidance on how to avoid some of our
own mistakes.
We feel that the United States should do everything it can to
make sure that the UN Conference is effective. We stand ready to
assist in any way we can.
ENVIRONMENTAL RESEARCH
On some environmental problems not enough is known for
effective action. In too many cases, a problem has been attacked
without concern for its relationship with other problems. As a
consequence, one kind of pollution may unwittingly be traded off
for another; a dam built to solve a water supply problem may
create worse problems for the overall ecology.
[P. 36]
-------
3312 LEGAL COMPILATION—GENERAL
A group of top level scientists who met on environmental prob-
lems reported that :
... In the process of making judgments we found that
critically needed data were fragmentary, contradictory, and
in some cases completely unavailable. This was true for all
types of data—scientific, technical, economic, industrial, and
social....
They proposed that an institute be set up to tackle such problems.
The President has announced the creation of such a mechanism
—the Environmental Institute. It will be supported by both public
and private financing, and will conduct both basic and applied
research on environmental quality problems.
To supplement the work of the Institute, the Committee sug-
gests increased Federal support of university-based environmental
research and demonstration programs. Such action, we feel, would
allow the much needed talents of our scientific community—in the
past heavily involved in aerospace and defense-related research—
to turn their skills to environmental problems.
[p. 37]
PRIORITIES AND FINANCING
For all of the programs we have been discussing, the key to
effective action is assignment of priorities and provision of funds.
To shape our recommendations on this difficult subject we have
addressed ourselves to three central questions: (1) Is the share of
the Federal Budget allocated to environmental quality consistent
with its relative importance? (2) Is the program balance within
the environmental area consistent with the needs? (3) What addi-
tional environmental measures could be suggested that would in-
volve little or no Federal costs, or which could be financed through
new sources of revenue ?
ENVIRONMENTAL GOALS
At the August 1969 meeting of the Environmental Quality
Council at San Clemente, California, the President asked the Com-
mittee to make recommendations concerning environmental goals
that might be set in connection with the celebration in 1976 of the
200th anniversary of the Nation's founding.
In responding, we suggested that planning to meet such goals be
in terms of priorities. We urged that environment be raised to a
first order national priority along with education, social services,
and space, matching what we perceived to be a growing public
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GUIDELINES AND REPORTS 3313
willingness to support higher appropriations for environmental
quality.
Environmental goals should be realistic and tangible, and there
should be year-by-year checks of the progress being made. The
first annual report of the Council on Environmental Quality pro-
[p. 39]
vides the basic information on which such goals can be based. We
will work with the Council to further sharpen the definition of
these goals.
THE FEDERAL PROGRAM
The President's Environmental Message of February 1971 out-
lined the most comprehensive program of environmental protec-
tion submitted by any President. To implement this program, the
Administration is sending to the Congress some sixteen legislative
proposals relating to numerous aspects of environmental quality.
Several of them have been specifically endorsed in previous sec-
tions of this report. The Committee commends the President for
submission of this far-reaching program and believes that enact-
ment of these bills should be assigned highest priority.
In recent years, amounts in the Federal Budget for combating
water, air, and solid waste pollution have all been increased, and
by more than the general level of increase in the Budget over all.
Amounts for related programs in areas of conservation, outdoor
recreation, and beautification have also been increased.
Indeed, the 1972 Budget calls for an increase of 71 percent over
1971. This is a very significant increase in view of the competing
demands upon the Federal Budget and reflects the Administra-
tion's strong concern for environmental quality. The Committee
recognizes that in view of the continuing need for fiscal austerity,
it is not feasible to allocate to environmental programs all the
amounts that we believe are needed. The recommendations in this
section are made with a view to the future when, hopefully, com-
peting pressures on the Federal Budget will be reduced.
We believe that there are strong arguments for increasing the
environmental share of the Budget. One of our members, Charles
A. Lindbergh, has effectively expressed the basic concern: ". . .
our environment should receive nothing less than priority-one at-
tention in legislation, appropriations, and public and governmen-
tal interest. There is nothing of more basic importance in our
[P. 40]
-------
3314 LEGAL COMPILATION—GENERAL
security and welfare. In the long- run, no social advance or mili-
tary strength can compensate for a seriously deteriorating envi-
ronment."
Money spent on environmental programs can save money else-
where. It can help to reduce overall Federal expenditures by iden-
tifying and eliminating unwise projects and expenditures that
would be detrimental to the environment. For example, the funds
spent on air and water pollution control will reduce sickness and
disease and thereby lessen the cost of medical care to which the
Federal Government contributes through various health and wel-
fare programs.
Within programs, also, there are imbalances which the Commit-
tee hopes can be righted over a period of time. The present distri-
bution of funds among water, air, and solid waste programs does
not appear related closely enough to the benefits accruing from the
costs involved. For example, both the funds appropriated for fiscal
year 1971 and the budget request for 1972 include a much larger
amount for water quality than for air quality and solid waste
management combined. In part, this may simply reflect the fact
that the problem of water pollution came into the public conscious-
ness first. It also, no doubt, reflects the costliness of sewage treat-
ment facilities, say, as opposed to the hardware required for air
pollution abatement, and the fact most of the latter must be paid
for by the private sector. It is the Committee's feeling, however,
that in the future the fundamental questions of need—the relative
health hazard, for example—and the urgency of further research
and development in the air and solid waste fields should be given
more consideration in the allocation of environmental dollars.
The way to right any imbalance is not by reducing support for
the water quality program, but by increasing it in the future for
the air and solid waste programs. Air pollution, we believe, is our
most immediate health hazard and is certainly the least "escapa-
ble" form of pollution for the individual citizen. Most of us drink
from a safe water supply, but very few of us breathe safe air. Air
pollution control, furthermore, involves relatively low costs and
for the end results offers the quickest payoff for Federal expendi-
tures. In solid waste management some major costs might be
borne by institutions other than the Federal Government, pro-
vided that the Government accelerates the application of new tech-
nology.
[p. 41]
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GUIDELINES AND REPORTS 3315
LOW COST APPROACHES
Many of the action programs recommended can yield large ben-
efits, yet involve little or no additional Federal expenditures:
• Support of Federal and State regulation, enforcement, and re-
search, with emphasis on air and solid waste pollution.
• Strengthening of the Council on Environmental Quality review
procedure under Section 102 of the National Environmental
Quality Act of 1970 for Federal agency activities affecting the
environment. New legislation and additional funding should be
sought if necessary to make the procedure more effective. Care-
ful review of proposed projects can produce outright budget
savings. Establishment by States and cities of review proce-
dures analogous to those of Section 102 would produce compara-
ble benefits to environmental quality.
• Encouragement of effective land use planning at all levels of
government.
• Increasing attention to the problems of population growth and
distribution; and expansion of programs of family planning
education, information, and action.
• Stimulation of efforts by private industry.
• Increasing use of Federal Government procurement policies to
force compliance with environmental quality standards and pro-
grams on the part of sellers of goods and services.
• Conscientious exercise of the Federal licensing power to protect
and enhance environmental quality, through such agencies as
the Federal Power Commission, Atomic Energy Commission,
Corps of Engineers, Forest Service, and Bureau of Land Man-
agement.
• Application of the currently underutilized portion of the Na-
tion's advanced technology and manpower base—such as the
capabilities of the hard hit aerospace industry and the potential
of returning veterans—to the problems of air, water, and solid
waste management and control.
One of our members, Willard F. Rockwell, Jr. says: "The unem-
[p. 44]
ployment problem among highly trained technical personnel is
extremely serious. The use of aerospace skills to cope with the
enormous environmental problems besetting this nation is a
golden opportunity. Our ecological world is coming apart at the
seams, and we're losing the very men who could most efficiently
weld it together."
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3316 LEGAL COMPILATION—GENERAL
The Federal Government, the States, and industry must give
increased attention to remedying some of the economic adjust-
ments which can accompany environmental action. Such action, let
it be noted, is only one of many factors; economically the impact
of environmental action is usually only marginal, and it is on
marginal activities that it tends to fall the most. Whatever the
cost of industrial dislocations, however, they can be very painful
indeed.
Though cost-benefit ratios can be greatly improved, the Federal
commitment to environmental quality will still have to be backed
by increasing financing. The cost will be high, but so too will be
the benefits—for the Nation's health, for its welfare, and for the
quality of its life.
[p. 45]
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GUIDELINES AND REPORTS 3317
4.4 SELECTED REPORTS
4.4a "Ocean Dumping: A National Policy". Report to the
President by the Council on Environmental Quality, October
1970
FOREWORD
Oceans—140 million square miles of water surface—cover over
70 percent of the earth. They are critical to maintaining the
world's environment, contributing to the oxygen-carbon dioxide
balance in the atmosphere, affecting global climate, and providing
the base for the world's hydrologic system. Oceans are economi-
cally valuable to man, providing, among other necessities, food
and minerals.
The coastlines of the United States are long and diverse, rang-
ing from the tropical waters of Florida to the Arctic coast of
Alaska. These areas, as biologically productive as any in the
world, are the habitat for much of our fish and wildlife. They also
provide transportation, recreation, and a pleasant setting for more
than 60 percent of the Nation's population.
These waters are also the final receptacle for many of our
wastes. Sewage, chemicals, garbage, and other wastes are carried
to sea through the watercourses of the Nation from municipal,
industrial, and agricultural sources or directly by barges, ships,
and pipelines.
Industrial liquid wastes are the largest source of pollution in
coastal and estuarine regions, followed by municipal liquid wastes.
Agricultural pollutants from land runoff, animal wastes, pesti-
cides, and fertilizers add to the load of wastes ultimately reaching
the ocean. Sewage from vessels and spilled oil are two highly
visible sources of marine pollution. And a large part of air pollu-
tants eventually end up in the ocean, directly or through runoff
from the land.
The amount of wastes transported and dumped in the ocean is
small in terms of the total volume of pollutants reaching the
oceans. But in the future the impact of ocean dumping will in-
crease significantly relative to other sources. Although Federal
laws on oil and vessel pollution and Federal-State water quality
standards for land-based discharges will reduce the contribution
of wastes from these sources, uncontrolled dumping in the ocean
could increase greatly.
Recognizing the importance of this problem, the President di-
rected the Council on Environmental Quality to study ocean dump-
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3318 LEGAL COMPILATION—GENERAL
ing. In his April 15, 1970, message to the Congress,1 he asked the
Council to work with other Federal agencies and with State and
local governments on a comprehensive study that would result in
research, legislative, and administrative recommendations.
The Council is grateful to members of a Federal Task Force and
individuals from their agencies2 for preparing material for con-
sideration at meetings of the Task Force, for their review of
report drafts, and most important of all, for providing guidance in
formulating the recommended policy. Helpful assistance was also
received from agencies and individuals in State and local govern-
ment and from scientists and academicians, including the National
Academy of Sciences and the National Academy of Engineering.
The Council is also indebted to a number of excellent studies.
These include the studies on the New York Bight, one initiated by
the Corps of Engineers and another prepared by an Ad Hoc Com-
mittee for the Secretary of the Interior; the 20-city survey of
barged wastes, prepared by the Dillingham Corporation under
contract to the Bureau of Solid Waste Management; the study of
Waste Management Research Needs, by the National Academy of
Sciences Committee on Oceanography-National Academy of Engi-
neering Committee on Ocean Engineering; the National Estuarine
Pollution Study, by the Federal Water Quality Administration;
and an economic study of marine solid wastes disposal, by the
Massachusetts Institute of Technology under contract to the Na-
1 See Appendix A.
2 See Appendix B.
tional Council on Marine Resources and Engineering Develop-
ment.
Sources of ocean dumping discussed in this report deserve defi-
nition :
• Dredge spoils—the solid materials removed from the bottom of
water bodies generally for the purpose of improving naviga-
tion : sand, silt, clay, rock, and pollutants that have been depos-
ited from municipal and industrial discharges.
• Sewage sludge—the solid material remaining after municipal
waste water treatment: residual human wastes and other or-
ganic and inorganic wastes.
• Solid waste—more commonly called refuse, garbage, or trash—
the material generated by residences; commercial, agricultural,
and industrial establishments; hospitals and other institutions;
and municipal operations: chiefly paper, food wastes, garden
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GUIDELINES AND REPORTS 3319
wastes, steel and glass containers, and other miscellaneous ma-
terials.
• Industrial wastes—acids; refinery, pesticide, and paper mill
wastes; and assorted liquid wastes.
• Construction and demolition debris—masonry, tile, stone, plas-
tic, wiring, piping, shingles, glass, cinderblock, tar, tarpaper,
plaster, vegetation, and excavation dirt.
• Radioactive wastes—the liquid and solid wastes that result from
processing of irradiated fuel elements, nuclear reactor opera-
tions, medical use of radioactive isotopes, and research activities
and from equipment and containment vessels which become ra-
dioactive by induction.
In this report, the Council first summarizes its findings and
recommendations for action to control ocean dumping. Chapter I
inventories the sites, amounts, and composition of wastes dumped
in the ocean and analyzes trends. The effects of these waste mate-
rials on the marine environment and man are outlined in Chapter
II. Chapter III discusses alternatives to ocean dumping in terms
of costs, availability, and effectiveness. The State and Federal
agencies and authorities that deal with specific aspects of dumping
are discussed in Chapter IV. Chapter V considers the interna-
tional implications of ocean dumping.
FINDINGS AND RECOMMENDATIONS
The Council on Environmental Quality concludes that there is a
critical need for a national policy on ocean dumping. It is not a
serious, nationwide problem now, but the decisions made by mu-
nicipalities and industries in the next few years could lead to
dramatic increases in the level of dumping. Once these decisions
are made and ocean dumping proceeds, it will be costly and diffi-
cult to shift to land-based disposal at some future date.
Ocean-dumped wastes are heavily concentrated and contain ma-
terials that have a number of adverse effects. Many are toxic to
human and marine life, deplete oxygen necessary to maintain the
marine ecosystem, reduce populations of fish and other economic
resources, and damage esthetic values. In some areas, the environ-
mental conditions created by ocean disposal of wastes are serious.
The Council study indicates that the volume of waste materials
dumped in the ocean is growing rapidly. Because the capacity of
land-based waste disposal sites is becoming exhausted in some
coastal cities, communities are looking to the ocean as a dumping
ground for their wastes. Faced with higher water quality stand-
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3320 LEGAL COMPILATION—GENERAL
ards, industries may also look to the ocean for disposal. The result
could be a massive increase in the already growing level of ocean
dumping. If this occurs, environmental deterioration will become
widespread.
In most cases, feasible and economic land-based disposal meth-
ods are available for wastes currently being dumped in the ocean.
In many cases, alternatives to ocean dumping can be applied posi-
tively for purposes such as land reclamation and recycling to re-
cover valuable waste components.
Current regulatory activities and authorities are not adequate
to handle the problem of ocean dumping. States do not exercise
control over ocean dumping, and generally their authority extends
only within the 3-mile territorial sea. The Army Corps of Engi-
neers authority to regulate ocean dumping is also largely confined
to the territorial sea. The Corps has responsibility to facilitate
navigation, chiefly by dredging navigation channels. As such, it is
in the position of regulating activities over which it also has
operational responsibility. The Coast Guard enforces several Fed-
eral laws regarding pollution but has no direct authority to regu-
late ocean dumping. The authority of the Federal Water Quality
Administration does not provide for issuance of permits to control
ocean dumping. And the Atomic Energy Commission has author-
ity only for disposal of radioactive materials. The Council believes
that new legislative authority is necessary.
Finally, this report recognizes the international character of
ocean dumping. Unilateral action by the United States can deal
with only a part—although an important part—of the problem.
Effective international action will be necessary if damage to the
marine environment from ocean dumping is to be averted.
POLICY AND REGULATORY RECOMMENDATIONS
The Council on Environmental Quality recommends a compre-
hensive national policy on ocean dumping of wastes to ban unregu-
lated ocean dumping of all materials and strictly limit ocean dis-
posal of any materials harmful to the marine environment. In
order to implement the policy, new regulatory authority is neces-
sary. The Council on Environmental Quality recommends legisla-
tion that would:
• Require a permit from the Administrator of the Environmental
Protection Agency for the transportation or dumping of all
materials in the oceans, estuaries, and the Great Lakes.
-------
GUIDELINES AND REPORTS 3321
• Authorize the Administrator to ban ocean dumping of specific
materials and to designate safe sites.
• Establish penalties for violation of regulations.
• Provide for enforcement by the Coast Guard.
The Administrator of the Environmental Protection Agency
would be guided by the following principles in exerting his author-
ity:
• Ocean dumping of materials clearly identified as harmful to the
marine environment or man should be stopped.
• When existing information on the effects of ocean dumping are
inconclusive, yet the best indicators are that the materials could
create adverse conditions if dumped, such dumping should be
phased out. When further information conclusively proves that
such dumping does not damage the environment, including cu-
mulative and long-term damage, ocean dumping could be con-
ducted under regulation.
• The criteria for setting standards for disposing of materials in
the ocean and for determining the urgency of terminating dis-
posal operations should include:
1. Present and future impact on the marine environment,
human health, welfare, and amenities.
2. Irreversibility of the impact of dumping.
3. Volume and concentration of materials involved.
4. Location of disposal, i.e., depth and potential impact of one
location relative to others.
• High priority should be given to protecting those portions of the
marine environment which are biologically most active, namely
the estuaries and the shallow, nearshore areas in which many
marine organisms breed or spawn. These biologically critical
areas should be delimited and protected.
The Council on Environmental Quality recommends the follow-
ing policies relating to specific types of wastes currently being
dumped in the ocean, in estuaries, and in the Great Lakes:
• Ocean dumping of undigested sewage sludge should be stopped
as soon as possible and no new sources allowed.
• Ocean dumping of digested or other stabilized sludge should be
phased out and no new sources allowed. In cases in which sub-
stantial facilities and/or significant commitments exist, contin-
ued ocean dumping may be necessary until alternatives can be
developed and implemented. But continued dumping should be
considered an interim measure.
-------
3322 LEGAL COMPILATION—GENERAL
• Ocean dumping of existing sources of solid waste should be
stopped as soon as possible. No new sources should be allowed,
i.e., no dumping by any municipality that currently does not do
so, nor any increase in the volume by existing municipalities.
• Ocean dumping of polluted dredge spoils should be phased out as
soon as alternatives can be employed. In the interim, dumping
should minimize ecological damage. The current policy of the
Corps of Engineers on dredging highly polluted areas only when
absolutely necessary should be continued, and even then, naviga-
tional benefits should be weighed carefully against damages.
• The current policy of prohibiting ocean dumping of high-level
radioactive wastes should be continued. Low-level liquid dis-
charges to the ocean from vessels and land-based nuclear facili-
ties are, and should continue to be, controlled by Federal regula-
tions and international standards. The adequacy of such stand-
ards should be continually reviewed. Ocean dumping of other
radioactive wastes should be prohibited. In a very few cases,
there may be no alternative offering less harm to man or the
environment. In these cases ocean disposal should be allowed
only when the lack of alternatives has been demonstrated. Plan-
ning of activities which will result in production of radioactive
wastes should include provisions to avoid ocean disposal.
• No ocean dumping of chemical warfare materials should be per-
mitted. Biological warfare materials have not been disposed of
at sea and should not be in the future. Ocean disposal of explo-
sive munitions should be terminated as soon as possible.
• Ocean dumping of industrial wastes should be stopped as soon
as possible. Ocean dumping of toxic industrial wastes should be
terminated immediately, except in those cases in which no alter-
native offers less harm to man or the environment.
• Ocean dumping of unpolluted dredge spoils, construction and
demolition debris, and similar wastes which are inert and non-
toxic should be regulated to prevent damage to estuarine and
coastal areas.
• Use of waste materials to rehabilitate or enhance the marine
environment, as opposed to activities primarily aimed at waste
disposal, should be conducted under controlled conditions. Such
operations should be regulated, requiring proof by the applicant
of no adverse effects on the marine environment, human health,
safety, welfare, and amenities.
-------
GUIDELINES AND REPORTS 3323
RESEARCH NEEDS
In the long term, additional information is required in the im-
plementation of this policy. Serious information deficiencies exist,
and research is required in the following major areas:
• Broad-based ecological research is needed to understand the
pathways of waste materials in marine ecosystems. Such studies
should be directed to a better understanding of the food chain
from microscopic plants and animals to high predators; how
pollutants concentrate in the food chain; the origin and ultimate
fate of pollutants in the oceans; and the effects of concentration
on the marine environment and eventually man.
• Marine research preserves should be established to protect rep-
resentative marine ecosystems for research and to serve as eco-
logical reference pionts—baselines by which man-induced
changes may be evaluated.
• Oceanographic studies of basic physical and chemical processes
should be directed toward gaining a thorough understanding of
the marine environment, with special emphasis on estuaries and
coastal areas.
• Toxic materials should be identified and their lethal, sublethal
and chronic long-term effects on marine life investigated. Infor-
mation is needed on the persistence of toxic substances; how
pollutants are degraded chemically and biologically; the effects
of radioactivity on the marine environment and man; and the
capacity of waters to assimilate waste materials.
• More information is needed about public health risks from ocean
pollution. Studies should determine what pathogens are trans-
ported in marine ecosystems and how. Better methods of meas-
uring public health dangers are also needed.
• Research is needed on the recycling of wastes and the develop-
ment of alternatives to ocean dumping. Technical problems
must be solved, but there is also a great need to study the social,
institutional, and economic aspects of waste management.
• Effective national and international monitoring systems need to
be developed. Research is necessary to develop improved meth-
ods and technology so that alterations in the marine environ-
ment may be detected. But there is also a need for data coordi-
nation so that data gathering and analysis efforts are not dupli-
cated.
SUMMARY
The Nation has an opportunity unique in history—the opportu-
-------
3324 LEGAL COMPILATION—GENERAL
nity to act to prevent an environmental problem which otherwise
will grow to a great magnitude. In the past, we have failed to
recognize problems and to take corrective action before they be-
came serious. The resulting signs of environmental degradation
are all around us, and remedial actions heavily tax our resources.
This is clearly the time for a conscious national decision to control
ocean dumping.
RUSSELL E. TRAIN, Chairman
Robert Cahn
Gordon J. MacDonald
-------
GUIDELINES AND REPORTS 3325
CONTENTS
Page
Foreword iii
Findings and Recommendations v
Policy and Regulatory Recommendations v
Research Needs vii
Summary viii
Chapter I. Ocean Dumping: Location, Quantities, Composition, and
Trends 1
Disposal Site Locations 1
Quantities and Types of Wastes 1
Dredge Spoils 1
Industrial Wastes 4
Sewage Sludge 5
Construction and Demolition Debris 5
Solid Waste 5
Explosives and Chemical Munitions 6
Radioactive Wastes 6
Past Trends 8
Future Trends 8
Solid Waste 10
Sewage Sludge 10
Industrial Wastes 10
Radioactive Wastes 10
Dredge Spoils 11
Explosives and Chemical Munitions 11
Summary 11
Chapter II. Ocean Pollution 12
The Pathways of Pollution 12
Effects on Marine Life 12
Toxicity 13
Oxygen Depletion 14
Biostimulation 14
Shock 15
Habitat Changes 15
Human Impacts 15
Public Health 16
Loss of Amenities 16
Economic Loss 17
Summary 18
Chapter III. Alternatives to Ocean Dumping 19
Solid Waste 19
Interim Alternatives 19
Longer-Term Alternatives 21
Sewage Sludge 22
Alternatives (Interim and Longer Term) 22
Dredge Spoils 23
Interim Alternatives 23
Longer-Term Alternatives 24
-------
3326 LEGAL COMPILATION—GENERAL
Paee
Industrial Wastes 26
Interim Alternatives 26
Longer-Term Alternatives 26
Construction and Demolition Debris 27
Radioactive Wastes 27
Alternatives (Interim and Longer Term) 27
Explosives and Chemical Munitions 28
Alternatives (Interim and Longer Term) 28
Summary 29
Chapter IV. Legislative Control of Ocean Dumping 30
State Control Activities 30
Federal Control Activities 30
Corps of Engineers 30
Federal Water Quality Administration 32
Atomic Energy Commission 33
Coast Guard 33
Recommendations 33
Chapter V. International Aspects of Ocean Disposal 34
Worldwide Chemistry of the Oceans 34
International Law on Waste Disposal 34
International Activities 36
Need for International Action 36
Recommendations 37
References 39
Appendix A. The President's Message on Waste Disposal 43
Appendix B. Task Force Membership 45
-------
GUIDELINES AND REPORTS 3327
Chapter I
OCEAN DUMPING: LOCATION, QUANTITIES, COMPOSITION, AND
TRENDS
About 48 million tons of wastes were dumped at sea in 1968.
These wastes included dredge spoils, industrial wastes, sewage
sludge, construction and demolition debris, solid waste, explosives,
chemical munitions, radioactive wastes, and miscellaneous materi-
als. This chapter indicates rapid increases in ocean dumping activ-
ity over the last two decades and the potential for great increases
in the future. At the same time, ocean dumping of wastes from
other sources should decrease through implementation of water
quality standards and new Federal laws dealing with control of
sewage from vessels and with oil pollution.
DISPOSAL SITE LOCATIONS
Data on disposal sites are still incomplete, with little definitive
information on sites off Alaska and Hawaii and outside the U.S.
contiguous zone (more than 12 miles offshore). There are almost
250 disposal sites off U.S. coasts. Fifty percent are located off the
Atlantic Coast, 28 percent off the Pacific Coast, and 22 percent in
the Gulf of Mexico. Table 1 summarizes the number of sites for
each major area and the number of permits issued for their use.
The locations of the disposal sites are indicated in Figure 1.
Table l.-OCEAN DUMPING: SITE LOCATION SUMMARY (22, 66)
Coastal area
Atlantic Coast
Gulf Coast
Pacific Coast
Total
Number of
sites
122
56
68
246
Active Corps
disposal
permits
136
50
71
257
Not included in Table 1 are some 100 artificial reefs constructed
by private concerns under permits issued by the U.S. Army Corps
of Engineers. (66) These reefs, sometimes formed of old car hulks
or tires, are intended to provide artificial shelters for fish.
QUANTITIES AND TYPES OF WASTES
The categories of wastes covered in this report are used because
of the large quantities of materials currently dumped, their poten-
tial for increase, or their special characteristics, such as toxicity.
-------
3328
LEGAL COMPILATION—GENERAL
The quantities for each category are summarized by coastal region
in Table 2. Radioactive wastes and chemical munitions are not
included in the table because weight is not a meaningful descrip-
tor. Each, however, will be discussed later.
The Bureau of Solid Waste Management estimates that the data
in Table 2 represent about 90 percent of ocean dumping. However,
the data undoubtedly underestimate the size and scope of the prob-
lem because of the time lapse and the possibility of many small
community operations or illicit operations by private firms. Also
not included in the table are those wastes that are piped to sea.
Each major category of ocean dumping sources is now discussed
and the possible chemical composition of the wastes delineated as
an aid in evaluating their present and potential effects on the
marine environment.
Dredge Spoils
A large percentage of dredging is done directly by the Corps.
The remainder is done by private contractor under Corps permit.
Spoils are generally disposed of in open coastal waters less than
100 feet deep.
TABLE 2.-OCEAN DUMPING: TYPES AND AMOUNTS, 1968 (66)
[In tons]
Waste type
Dredge spoils
Industrial wastes .. .
Sewage sludge , . .
Construction and demolition debris
Solid waste
Explosives. ...
Atlantic
15 EOS 000
3,013,200
4,477,000
574,000
0
15,200
Gulf
15,300,000
696,000
0
0
0
0
Pacific
7,320,000
981,300
0
0
26,000
0
Total
38,428,000
4,690,500
4,477,000
574,000
26,000
15,200
Percent
of total
80
10
9
<1
<1
<1
Total 23,887,400 15,966,000 8,327,300 48,210,700
100
TABLE 3.-ESTIMATED POLLUTED DREDGE SPOILS (22)
Coastal area
Atlantic Coast
Gulf Coast
Pacific Coast
Total
Total spoils
(in tons)
15,808,000
15,300,000
7,320,000
38,428,000
Estimated
percent of total
polluted spoils >
45
31
19
34
Total
polluted spoils
(in tons)
7,120,000
4,740,000
1,390,000
13,250,000
1 Estimates of polluted dredge spoils consider chlorine demand; BOD; COD; volatile soilds; oil and grease; con-
centrations of phosphorous, nitrogen, and iron; silica content; and color and odor of the spoils.
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GUIDELINES AND REPORTS
3329
Dredge spoils account for 80 percent by weight of all ocean
dumping. The Corps of Engineers estimates that about 34 percent
(13 million tons) of this material is polluted. Contamination oc-
curs from deposition of pollutants from industrial, municipal, ag-
ricultural, and other sources on the bottom of water bodies. The
quantities of polluted dredge spoils are shown in Table 3.
Polluted dredge spoils vary at every location according to the
land-based sources of pollution. Detailed quantitative analyses of
the pollutants in dredge spoils in the coastal areas are not availa-
ble. An analysis by the Federal Water Quality Administration
(FWQA) of polluted spoils from Lake Erie indicates that a total of
82,091 tons of spoils created 10,500 tons of chemical oxygen de-
mand (COD). (23) These large quantities of oxygen-demanding
materials can reduce the oxygen in the receiving waters to levels
at which certain fish and other aquatic populations cannot survive.
Also present were toxic heavy metals. Even with substantial dilu-
tion, the levels of heavy metals in the spoils may deleteriously
affect marine life, as shown in Table 4.
TABLE 4.—HEAVY METALS CONCENTRATIONS IN DREDGE SPOILS (23, 36)
(In parts per million)
Metal
Natural Concentrations
Concentrations concentrations toxic to
in dredge spoils in sea water marine life
Cadmium
Chromium
Lead
Nickel
130
150
310
610
.08
00005
.00003
.0054
.01-10.0
1.0
.1
.1
TABLE 5—INDUSTRIAL WASTES BY METHOD OF DISPOSAL (66)
(In tons)
Coastal area
Atlantic Coast
Gulf Coast
Pacific Coast
Total
Number
of sites
10
6
7
23
Containerized
Bulk wastes wastes
3,011,000
690,000
981,000
4,682,000
2,200
6,000
300
8,500
Total
3,013,200
696,000
981,300
4,690,500
TABLE 6.-INDUSTRIAL WASTES BY MANUFACTURING PROCESS (66)
Type of waste
Waste acids
Refinery wastes ....
Pesticide wastes . . . _ ...
Paper mill wastes
Other wastes
Estimated
tonnage
2,720,500
562,900
. .. 328,300
140,700
938,100
Percent
58
12
7
3
20
-------
3330 LEGAL COMPILATION—GENERAL
Industrial Wastes
Industrial wastes were the second largest category of pollutants
dumped at sea in 1968 (4.7 million tons, or 10 percent of the
total). (66)
Most industrial wastes are commonly transported to sea in
1,000- to 5,000-ton-capacity barges. Sites are 4 to 125 miles off the
Atlantic Coast, from 25 to 125 miles off the coast of the Gulf of
Mexico, and from 5 to 75 miles off the Pacific Coast. Most of the
sites are at the nearshore end of the range.
Highly toxic industrial wastes are sometimes contained in 55-
gallon drums and are jettisoned from either merchant ships or
disposal vessels at least 300 miles from shore. The containers are
sometimes weighted and sunk. More frequently, they are ruptured
at the surface, either manually with axes or by small arms or rifle
fire. (66)
The breakdown for disposal methods by geographic area is
shown below.
Table 6 shows the relative quantities of major industrial wastes
found in a survey of 50 producers in 20 cities.
The types of contaminants in industrial wastes dumped at sea
vary greatly because of the diversity of industries and production
processes involved. Many of the wastes are toxic—some highly
toxic. For example, refinery wastes, which are 12 percent of the
total ocean-disposed industrial wastes, can include cyanides, heavy
metals, mercaptides, and chlorinated hydrocarbons. Pulp and
paper mill wastes may contain "black liquor" and various organic
constituents which are toxic to the marine environment. Chemical
manufacturing and laboratory wastes that are dumped include
arsenical and mercuric compounds and other toxic chemicals. (66)
Sewage Sludge
Sewage sludge is the waste solid byproduct of municipal waste
water treatment processes. These solids can be further treated by
digestion, a process which allows accelerated decomposition of the
sludge to control odors and pathogens. Most sewage sludge is
disposed of on land or is incinerated. Relatively small amounts
(4.5 million tons on a wet basis) are currently dumped at sea, of
which almost 4.0 million tons are dumped off New York harbor.
(66) As of 1968, there were no similar operations on either the
Gulf or Pacific Coasts, although sludge is being discharged from
Los Angeles by pipeline.
-------
GUIDELINES AND REPORTS 3331
Sewage sludge in digested or undigested form contains signifi-
cant quantities of heavy metals. A study by the FWQA indicated
that copper, zinc, barium, manganese, and molybdenum are pres-
ent in sewage sludge. (9) The concentrations and types of toxic
materials vary because sludge is the residual of waste water treat-
ment and contains whatever domestic and industrial contaminants
have entered the system. Table 7 shows the minimum, average,
and maximum values for three heavy metals found in one analysis
of sewage sludge.
TABLE 7.—HEAVY METALS CONCENTRATIONS IN SEWAGE SLUDGE (8, 9, 36)
(In parts per million)
Metal
Copper -
Zinc
Concentrations in
sewage sludge
Mm.
315
1,350
30
Avg.
642
2,459
262
Max.
1,980
3,700
700
Natural
concentrations
in sea water
.003
.01
.002
Concentrations
toxic to
marine life
.1
10.0
Sewage sludge also contains significant amounts of oxygen de-
manding materials. In 1969, sludge dumped in the New York
Bight, encompassing the New York harbor and some adjacent
coastal areas, had an oxygen demand of about 70,000 tons. (15)
These wastes also include some bacteria that cause diseases in
man.
Construction and Demolition Debris
Only New York City disposes of debris at sea in significant
quantities because of the lack of nearby available landfill. Sea
disposal is conducted with 3,000- to 5,000-ton capacity barges that
are towed some 9 miles offshore. These materials are generally
inert and non-toxic.
Solid Waste
Solid waste, the byproducts and discards of our society,
amounts to approximately 5.5 pounds per capita per day collected
by municipal and private agencies. (28) Although these wastes
total approximately 190 million tons per year, ocean disposal ac-
counted for only about 26,000 tons. (66) Ocean dumping of solid
waste occurred exclusively on the Pacific Coast, where they were
generated by cannery operations and commercial and naval ship-
ping operations. Other sources no doubt exist, but the overall
magnitude of the current problem is minor.
-------
3332 LEGAL COMPILATION— GENERAL
The composition of solid waste, ascertained by sampling, is
shown in Table 8. It is presented here to indicate the materials
that would be introduced into the marine environment if ocean
dumping of solid waste becomes a common practice.)
Solid waste disposed of in the ocean interacts with the water,
but the resultant chemical products are difficult to determine.
Studies have been done on the interaction between solid waste and
fresh water in sanitary landfills as the water percolates through
the waste materials. (The resultant mixture of water and chemi-
cals is called leachate.)
TABLE 8.— COMPOSITION OF SOLID WASTE (28)
Type of waste
Paper products
Food wastes
Metals .
Glass and ceramics
Garden wastes . ...
Rock, dirt, and ash ...
Plastics, rubber and leather
Textiles
Wood .
Total
Average
(percent)
43.8
18.2
9.1
.. ... 9.0
. 7.9
3.7
3.1
2.7
2.5
100.0
The percentage of pollutants in solid waste is not nearly as high as
in sewage sludge or dredge spoils, but it does contain nutrients,
oxygen-demanding materials, and heavy metals. Laboratory stud-
ies of water contaminated by solid waste have shown significant
quantities of heavy metals, with zinc, nickel, and magnesium pres-
ent in concentrations of 13, .27, and 378 parts per million respec-
tively. (29) These concentrations are well above toxic levels for
marine life.
Up to 50 percent of solid waste is usually paper, wood, plastics,
and rubber, all of which can float to the surface. Particularly
significant are the plastics which will not become water soaked
and will not degrade for many, perhaps even hundreds, of years.
Even if baled before ocean disposal, it is almost certain that over
time the bales will disintegrate and the floatables will rise to the
surface. The potential esthetic problems of large quantities of
solid wastes floating to the surface and then being carried to shore
are staggering.
Explosives and Chemical Munitions
Unserviceable or obsolete shells, mines, solid rocket fuels, and
chemical warfare agents have been disposed of in deep water for
many years. In 1963, the Navy initiated Operation "CHASE," in
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GUIDELINES AND REPORTS
3333
which munitions were disposed of by sinking them in obsolete
hulks. Since then, 19 gutted World War II Liberty ships contain-
ing munitions have been scuttled. In the last six operations, the
weapons were to detonate, but the S.S. ROBERT LOUIS STE-
VENSON failed to do so as planned and is located on the conti-
nental shelf near Alaska in 2,200 feet of water.
Since 1964 at least 18,342 tons of ammunition and explosives
have been dumped in this manner. Additional cargoes of approxi-
mately 35,000 tons containing an unknown proportion of net ex-
plosives were also scuttled. A detailed listing of the ships scuttled,
their cargoes, and disposition are shown in Table 9.
Detonation of explosives can result in trace amounts of lead,
nickel, bronze, and other metals in the water, depending on corro-
sion processes and the materials used in the munitions.
Radioactive Wastes
Most nuclear waste products are liquid and of low radioactivity.
They consist mostly of decontaminated process and cooling waters
from reactors, fuel processing, and other operations. Small
amounts of liquid wastes are highly radioactive; they result from
the reprocessing of reactor fuel elements.
Solid radioactive wastes are produced by contamination of
equipment and other materials during nuclear power plant opera-
tions, from medical use, and by research and development activi-
ties.
Solid radioactive wastes have been buried in carefully controlled
landfill sites. Low-level liquid nuclear wastes are treated and/or
stored to reduce radioactivity before disposal. High-level liquid
wastes are stored exclusively in tanks at land-based sites.
TABLE 9—EXPLOSIVES AND CHEMICAL MUNITIONS, 1964-1970 (30)
Year
1964
1965
1966
1967
1968
SS.
S.S.
MV,
S.S.
S.S.
S.S,
S.S.
S.S.
S.S.
S.S.
S.S.
Name
John F. Shafroth
Village
. Coastal Manner .
Santiago Iglesia..
Issac Van Zandt
Horace Greely
Root. L. Stevenson
Corporal Eric G. Gibson
Monahan
Richardson.. _
Total
cargo
(in tons)
9
7
4
8
7
6
6
9
7
7
,799
,535
,040
,715
,500
,033
,600
,005
833
,763
,437
Nature
of cargo
A&E
A&E
A&E
A&E
A&E
A&E
A&E
Chem.
A&E
Chem.
A&C
Net
explosives
(in tons)
Unknown
Unknown
512
408
1,625
442
2,327
None
Unknown
N.A.
138
Disposition
SOW
SOW
D at 1,000'
D at 1,000'
D at 4,000'
D at 4,000'
S
SOW
SOW
SOW
SOW
-------
3334 LEGAL COMPILATION—GENERAL
TABLE 9.—EXPLOSIVES AND CHEMICAL MUNITIONS, 1964-1970 (30)
Total Net
Year Name cargo Nature explosives Disposition
(in tons) of cargo (in tons)
1969
1970
S.S
SS
S.S.
S S.
SS.
SS
S.S
S.S
Cape Tryon ...
Cape Catoche- _
Cardinal O'Connell ._
Frederick E Williamson. ..
Cape Comfort
Walker D Hines
David Hughes
LeBaron Russell Briggs
7
... 6
6
5
6
6
5
2
,626
,348
,431
,245
,200
,500
,000
,664
A&E
A&E
A&E
A&E
AS E
A&E
A&E
Chem
1,145
1,359
2,144
478
N.A
N A
N.A.
NA
DU
DU
DU
DU
DU
DU
DU
SOW
Definitions A&E= ammunition and explosives, NA = not available, DU= Detonated unintentionally, SDW=sunk
in deep water, D= detonated, S= sunk at less than 4,000 feet and did not detonate as planned; A&C = ammunition and
cylinders contaminated with residues of GB nerve gas.
Liquid and solid radioactive wastes which have been dumped in
the ocean are usually in concrete-filled metal drums or containers.
Table 10 summarizes the amounts of these wastes disposed of at
sea.
The quantities of radioactive materials disposed of at sea have
decreased dramatically for several reasons. First, in 1960 the
Atomic Energy Commission placed a moratorium on new licenses
for disposal of radioactive wastes in the ocean. Only one commer-
cial organization (which has never conducted any sea disposal),
two Government agencies, and one university are still authorized
to dispose of radioactive wastes in the ocean. Second, the major
contractors of the AEC have not disposed of any wastes at sea
since 1962. And for economic reasons, those firms with licenses are
phasing out sea disposal of radioactive wastes in favor of land
disposal.
TABLE 10—RADIOACTIVE WASTES. HISTORICAL TRENDS, 1946-1970 (70)
Year
1946-
1960 . .....
1961 ..
1962 ... .
1963
1964 .....
1965 ,. .
1966
1967
1968 .
1969 .
1970 .
Number of
containers
76,201
4,087
6,120
129
114
24
43
12
0
26
2
Estimated
activity at time
of disposal
(in curies)
93,690
275
478
9
20
5
105
62
0
26
3
Total 86,758 94,673
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GUIDELINES AND REPORTS 3335
Two sites have been used for disposal of most of the wastes in
the Pacific Ocean. These sites are approximately 48 nautical miles
west of the Golden Gate Bridge. One commercial firm has disposed
of wastes in the Pacific Ocean farther than 150 miles from the
U.S. coast; these disposals, 11 in number, were at depths greater
than 6,000 feet. In the Atlantic Ocean, the major sites for disposal
were in the area of Massachusetts Bay, approximately 12 to 15
miles from the coast; approximately 150 miles southeast of Sandy
Hook, N.J.; and approximately 105 miles from Cape Henry, Va.
With the exception of the Massachusetts Bay site, disposal was at
depths greater than 6,000 feet. The Massachusetts Bay site was in
300 feet of water.
PAST TRENDS
Figure 2 shows significant increases in ocean dumping activities
during the years 1951-1968. These data do not include dredge
spoils or explosives because historical data could not be readily
reconstructed. Radioactive wastes are also excluded because of
their negligible weight contribution.
Table 11, on which Figure 2 is based, shows a fourfold increase
in tonnage dumped at sea from 1949 to 1968. The 28 percent
increase between the 1959-1963 period and the 1964-1968 period
is largely attributable to dramatic increases in industrial wastes
and sewage sludge disposal. In 1959, industrial wastes disposed of
at sea approximated 2.2 million tons. By 1968, the amount had
increased to over 4.7 million tons, a 114 percent increase in 9
years. The amount of sewage sludge disposed of at sea increased
by 61 percent in the same period, from 2.8 million tons to 4.5
million tons. (66)
FUTURE TREND
Assessing future trends in ocean dumping requires analysis of
basic population trends. Population growth is accompanied not
only by increased amounts of wastes but also by decreased space
available for their disposal.
Between 1930 and 1960 the coastal population increased by 78
percent, compared with a 48 percent increase nationwide. (36)
The figures below (25) indicate the population growth in the
coastal region projected through the year 2000:
I960 57,946,000
1970 68,397,000
1980 76,607,000
1990 92,940,000
2000 106,900,000
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3336 LEGAL COMPILATION—GENERAL
TABLE 11.—OCEAN DUMPING' HISTORICAL TRENDS, 1949-1968 ' (66)
1949-1953 1954-1958 1959-1963 1964-1968
Coastal area
Total Avg/Yr. Total Avg /Yr Total Avg /Yr Total Avg/Yr.
Atlantic Coast.. 3,000,000 1,600,000 *16,000,000 3,200,000 27,270,000 5,454,000 31,100,000 6,200,000
Gulf Coast 3 40,000 8,000 283,000 56,000 860,000 172,000 2,600,000 520,000
Pacific Coast... 487,000 97,000 850,000 170,000 940,000 188,000 3,410,000 682,000
Total.... 8,527,000 1,705,000 17,133,000 3,426,000 29,070,000 5,814,000 37,110,000 7,422,000
1 Figures do not include dredge spoils, radioactive wastes, and military explosives
1 Estimated by Fitting a linear trend line between data for preceding period and data for succeeding period.
3 Disposal operations in the GuH of Mexico began in 1952.
Solid Waste
About 65 million tons of solid waste are generated annually in
the coastal region. Based on a conservative estimate of 8 pounds of
waste generated per person per day in the year 2000—the genera-
tion rate which will be reached by 1980—over 150 million tons will
need to be disposed of for that one year. (28) If 10 pounds per
person per day are generated, total wastes in the coastal area will
be close to 200 million tons, more than triple current levels. The
pressure to use the ocean for waste disposal will increase as land
disposal sites become more scarce, costs increase, and metropolitan
areas face political problems in obtaining new land disposal sites.
Several cities are currently exploring the use of the ocean as a
solid waste disposal site, and this interest is expected to increase.
In some cases operations may begin within a year. If even a small
percentage of the solid waste annually generated in the coastal
area were disposed of at sea, the quantities entering the marine
environment would be many orders of magnitude greater than all
solid waste disposed of at sea to date.
Sewage Sludge
Based on an average of .119 pounds of sludge generated per
person per day, potential sludge disposal quantities for the coastal
region can be roughly estimated. (37) In 1970, approximately 1.4
million tons of sludge will be disposed of in the coastal areas, and
in the year 2000, approximately 2.1 million tons will be generated,
an increase of 50 percent in 30 years. If anything, these figures
may underestimate future quantities of sludge. For example, be-
tween 1960 and 1980, 20-year period, the sludge generated by the
Baltimore-Washington area is expected to increase from 70,000
tons to 166,000 tons, or about a 140 percent increase. New York
City's sludge barged to sea is expected to increase from 99,000
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GUIDELINES AND REPORTS 3337
tons in 1960 to about 220,000 tons in 1980, a 120 percent increase
in 20 years. (66)
Industrial Wastes
The volume of industrial production, which gives rise to waste
production, is increasing at a rate of 4.5 percent annually, or three
times the population growth rate. Additionally, the FWQA esti-
mates that the manufacturing industry is responsible for three
times as much waste as that produced by the Nation's population.
And about 40 percent of the Nation's industrial activity is concen-
trated in the estuarine economic region. (36) Given increasingly
stringent water quality standards and the ever expanding level of
industrial waste generation in the coastal zone, the potential for
increased industrial waste dumping at sea is great.
Radioactive Wastes
The amount of liquid and solid radioactive wastes will rise with
projected increases in nuclear power generation. The amount of
high-level liquid radioactive wastes will increase from 100,000 gal-
lons in 1970 to 6,000,000 gallons by the year 2000 and radioactive
solid wastes, from approximately 1 million cubic feet in 1970 to 3
million cubic feet by 1980. (70) As mentioned earlier, however,
ocean dumping has been virtually nonexistent since the early
1960's because of the AEG moratorium and the economic advan-
tage of land disposal.
Large radioactive structures, an additional source of radiation,
are not yet a significant problem. In the past, the few that became
obsolete have been decontaminated, dismantled, and kept under
surveillance on land—with the exception of parts of one nuclear
submarine, which were disposed of in the ocean. Currently, how-
ever, there are 16 nuclear power plants in operation, 55 under
construction, and 25 for which construction permit applications
are pending with the Atomic Energy Commission. (70) If current
forecasts are realized, by the year 2000, the equivalent of up to
1,000 nuclear power units, each with a capacity of some 1,000
megawatts, may be operating. In addition, the Navy has about 90
nuclear-powered submarines and surface ships, and many more
may be built in the next 30 years as a large portion of the current
naval fleet is replaced. Commercial nuclear ships—currently the
N.S. SAVANNAH is the only one—may become economically fea-
sible in the future.
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3338 LEGAL COMPILATION—GENERAL
A lifetime of 10 to 30 years for the power plants' and ships'
reactor vessels is reasonable in terms of physical or technological
obsolescense. Their radiation levels vary considerably, up to 50,000
curies of induced radiation in each structure. (70)
Individually none of these sources adds significant amounts of
radioactivity to the ocean. Taken together, however, the increases
could be of significant concern.
Dredge Spoils
In the long run, the reduction of polluted discharge from munic-
ipal and industrial sources, brought about by water quality stand-
ards, will lessen the problem from dredge spoils. However, they
will remain a problem for at least the next 5 to 10 years. During
this period, there will be pressures for more dredging to deal with
increasing marine commerce, to meet the desire of cities for new
deep-water harbors, and to provide draft for larger vessels (in-
cluding the supertankers used to transport oil). These needs will
all increase total dredging and hence dredge spoils.
Explosives and Chemical Munitions
The following are Department of Defense estimates of conven-
tional munitions planned for disposal: in 1970, 103,777 tons; in
1971, 88,835 tons; and in 1972, 80,000 tons. (26) These quantities
are several times larger than the total volume of these wastes
disposed of at sea in the last two decades. They indicate the quant-
ities which would enter the marine environment if no other dis-
posal technique were employed.
Chemical munitions have also been disposed of at sea in three
deep-water disposal operations, but actual quantities involved are
not known. No future ocean disposal operations are planned. Bio-
logical agents have not previously been disposed of at sea, and no
future disposal is projected.
SUMMARY
The data indicate that the volume of wastes dumped in the
ocean is increasing rapidly. Many are harmful or toxic to marine
life, hazardous to human health, and esthetically unattractive. In
all likelihood, the volume of ocean-dumped wastes will increase
greatly due to decreasing capacity of existing disposal facilities,
lack of nearby land sites, higher costs, and political problems in
acquiring new sites.
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GUIDELINES AND REPORTS 3339
Chapter II
Ocean Pollution
Chapter II deals with the effects of ocean dumping in terms of
the broader problem of ocean pollution. This view is necessary
because wastes affect marine ecosystems no matter where or how
the pollutants originate and because pollutants tend to interact,
sometimes synergistically, in the environment.
Marine pollution has seriously damaged the environment and
endangered humans in some areas. Shellfish have been found to
contain hepatitis, polio virus, and other pathogens; pollution has
closed at least one-fifth of the Nation's commercial shellfish beds;
beaches and bays have been closed to swimming and other recrea-
tional use; lifeless zones have been created in the marine environ-
ment; there have been heavy kills of fish and other organisms;
and identifiable portions of the marine ecosystem have been pro-
foundly changed.
THE PATHWAYS OF POLLUTION
In order to understand the effects of pollutants on marine eco-
systems, one needs to understand how pollutants are dispersed a
concentrated. The dispersal of wastes depends on the material
involved. Most wastes, but far from all, sink to the bottom. Others,
such as solid waste, oil, and garbage, contain many floatable mate-
rials. Floating wastes can be transported great distances by cur-
rent and wind. Early in 1970, the Heyerdahl expedition encoun-
tered wastes over large areas of water in mid-ocean, reporting
that the ocean was "visibly polluted by human activity." (55)
Suspended materials, such as fine particles, are also transported
by currents over great distances. For example, horizontal currents
flush the 500 square miles of the New York Bight, completely
exchanging the water in less than 1 week. (42) Vertical movement
is considerably slower, and pollutants may remain in layers of
water for quite some time.
Pollutants enter living systems through biological concentra-
tion. Billions of tiny phytoplankton organisms act as a great bio-
logical blotter, picking up nutrients, trace metals, and other mate-
rials. Organisms feed on the phytoplankton and successively pass
the pollutants on to higher organisms. As this process moves
through the food chain, concentrations reach their highest levels
in predators such as marine mammals, birds, and man. An exam-
ple of the food chain may be seen in the North Atlantic—1,000
pounds of phytoplankton produces:
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3"340 LEGAL COMPILATION—GENERAL
100 pounds of zooplankton or shellfish
50 pounds of anchovies and other small fish
10 pounds of the smaller carnivores
1 pound of the carnivores harvested by man. (41)
The concentration of chemicals by phytoplankton and subse-
quent further concentration within the food chain have lethal and
sublethal effects on organisms.
Heavy metals have been found in toxic concentrations in plank-
ton, seaweed, and shellfish, although levels of concentration in the
surrounding water were not high. The ability of biota to concen-
trate materials varies from a few hundred to several hundred
thousand times the concentrations in the surrounding environ-
ment. (8, 42, 48) Table 1 shows phytoplankton concentration fac-
tors for selected metals.
EFFECTS ON MARINE LIFE
Pollution affects marine life directly through toxicity, oxygen
depletion, biostimulation, and habitat changes.
TABLE l.-PHYTOPLANKTON CONCENTRATION OF SOME HEAVY METALS. (45)
Metal
Aluminum
Cobalt. .
Copper .
Iron . .
Lead ... ....
Radium
Zinc .
Concentration
factor
100,000
... .. . 1,500
30,000
45,000
... 40,000
12,000
26,000
Toxicity
Although plants and animals are sometimes killed by toxic
wastes, organisms may be affected by concentrations far below the
lethal level. Sublethal effects include reduced vitality or growth,
reproductive failure, and interference with sensory functions.
Copper was found in the waters of the New York Bight in
concentrations greater than 0.120 milligrams per liter. (8) These
concentrations, found throughout the water column, indicate wide-
spread copper contamination.
With even lower concentrations of copper, laboratory experi-
ments have shown that:
• Concentrations of 0.1 milligrams per liter killed soft clams in
10-12 days. (62)
• Concentrations of 0.05 milligrams per liter killed polychaete
worms in 4 days. (63)
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GUIDELINES AND REPORTS 3341
• Concentrations of 0.1 milligrams per liter inhibited photosyn-
thesis in kelp 70 percent in 9 days. (16,17)
Pesticides and other toxic materials are a major cause of fish
kills in fresh water. Although there are few recorded fish kills in
the ocean resulting from pesticides, pesticide concentrations are
rising every year. They reduce the size and strength of mollusk
shells. Reduced growth rate and reproductive activity in fishes
exposed to sublethal doses of pesticides and copper have also been
shown. (54)
Pesticides endanger higher predators because of biological con-
centration. For example, pesticides amplified through the food
chain damage birds' reproductive capability and in some cases
seriously reduce their populations. The peregrine falcon is the
most dramatic example; pesticide accumulation through the food
chain has led to drastic reduction and projected extinction in the
coterminous United States.
Oil introduced into the marine environment produces several
adverse effects: Reproduction and other behavior is altered. Direct
contact with respiratory organs weakens or kills animals. And oil
clogs their filtering mechanisms. (67) Experiments with oysters
have shown that when water-soluble fractions of oil were intro-
duced into water, the amount of water filtered by the oysters
decreased from between 207 and 310 liters per day to between 2.9
and 1.0 liters after 8 to 14 days. (13)
Cancer in fishes is very likely a result of contact with certain
waste products. Cancerous growths on the lips of croakers have
been found in areas of the Pacific Ocean polluted by oil refinery
wastes. (65) Growths on several species including White Seabass
and Dover Sole caught in oil polluted areas have been reported.
(72) Oysters and barnacles are also known to concentrate cancer-
producing agents.
Laboratory tests with "black liquor" from a paper mill showed
that 0.05 grams per liter affected photosynthesis and 1 gram per
liter killed the four species of phytoplankton tested. (66)
In laboratory experiments with polluted sediments from the
New York Bight disposal area, the following sublethal effects were
shown :
• Serious infections were found in native species.
• Bottom waters inhibited phytoplankton cell growth and division.
(34)
Lethal and sublethal effects from toxic wastes are complex and
not well understood. But evidence is mounting that these effects
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3342 LEGAL COMPILATION—GENERAL
may be widespread and very harmful to the marine environment.
Their potential for deferred and long-range ecological damage
must be taken into account in any program to control ocean dump-
ing.
Oxygen Depletion
Oxygen supports marine and aquatic life and is necessary to the
biological degradation of organic materials. Organic wastes
dumped or discharged into water bodies demand oxygen to decom-
pose. If waste loads are too heavy, the oxygen levels become de-
pleted and the diversity of marine organisms is altered.
Many of the Nation's rivers, estuaries, and harbors are in this
condition. In the Potomac estuary, severely polluted by municipal
wastes, dissolved oxygen levels approach zero in some reaches
during low flow periods of warm summer months. (33)
When all the oxygen is depleted, organisms die, and anaerobic
bacteria produce hydrogen sulfide and methane gas, which are
malodorous. Large amounts of oxygen are required to decompose
some materials. The dissolved oxygen in 320,000 gallons of air-sat-
urated sea water is required to oxidize 1 gallon of crude oil com-
pletely. (64) If the oxygen level is already low, damage from oil
spills may increase.
Dumping undigested sewage sludge in the ocean can create a
significant demand on the dissolved oxygen. And oxygen depletion
can develop rapidly. In the New York Bight waste disposal area,
where sludge has been dumped for 40 years, the oxygen concentra-
tion as a percent of saturation declined from 61 percent in 1949 to
59 percent in 1964. It then dropped to 29 percent in 1969 and was
as low as 10 percent in the center of the dump. (42) This may
indicate that a threshold was reached and that the water quality
then deteriorated rapidly.
Oxygen levels fell below those necessary to sustain life in spe-
cies of lobster and crab normally found in the area. Researchers
have noted that :
the most striking effect observed was the extreme depletion of
dissolved oxygen in the bottom waters over the disposal areas
during the summer months. Levels frequently fell below 2
parts per million during the period from July to mid-Septem-
ber . . . This condition is undoubtedly caused by the heavy
oxygen demand of the organic-rich waste materials coupled
with the reduced mixing rates normally found during the
summer. (43)
Oxygen deficit in a waste disposal area may be self-perpetuat-
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GUIDELINES AND REPORTS B343
ing. The accumulation of organic matter, sulfides, and some metals
can act as a reservoir of future oxygen demand. Even after the
disposal of the organic matter is stopped, it may be a long time
before the area recovers.
Biostimulation
Some wastes, such as sewage sludge, are particularly rich in
nutrients, such as phosphates and nitrates. These nutrients can
cause biostimulation—the accelerated fertilization of plant life.
When the plants die, oxygen necessary to support marine life is
used in their decomposition. And when dead algae are carried to
beaches, they rot and produce unpleasant odors.
By creating excessive blooms of algae, biostimulation indirectly
changes the nature of bottom sediments and thus whole communi-
ties of bottom organisms. For example, areas which formerly sup-
ported surf clams in sand may become covered with an algal mud
to which the surf clams cannot adapt. Sediments adjacent to dis-
posal areas show greatly increased concentrations of organic mat-
ter. Some come directly from the wastes, but other material niters
down from algal blooms. (2)
In the past, biostimulation has been recognized as a major prob-
lem of fresh waters, but not of the oceans. Increasingly, however,
biostimulation is affecting estuaries and bays and even some por-
tions of the continental shelf.
Shock
Explosions from dumping of munitions cause death in marine
organisms surrounding the explosion point. The Department of
Defense calculates that detonation of 1,000 tons of explosives—the
approximate amount contained in the September 4, 1970, "Deep
Water Dump" off Washington State—generates a shock wave that
will kill most marine animals within 1 mile of the explosion and
will probably kill those fish with swim bladders1 out to 4 miles
from the explosion.
Habitat Changes
Evidence indicates that waste disposal practices drastically
alter certain marine communities. Habitat changes are the most
common change that can affect entire ecosystems.
The most pronounced ecological changes, caused by dumping
sewage sludge and polluted dredge spoils, have been found in the
New York Bight. The consistency of bottom sediments changed
from sand or hard mud to muddy ooze. Nematode worms, nor-
mally tolerant of pollution, were completely absent from the cen-
1 A large group of fish with respiratory organs that adjust to different depths.
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3344 LEGAL COMPILATION—GENERAL
ter of the dredge spoil dump and were found in very low numbers
in the center of the sewage sludge dump. (2)
Changes in the kinds and quantities of sediments deposited may
alter ecosystems. The plague of starfish in the Pacific may be an
example of this effect. In recent years, the numbers of Crown of
Thorns starfish have multiplied. This coral-eating starfish has dev-
astated large areas of the coral reefs off many Pacific islands and
the Great Barrier Reef of Australia. The population explosion
may be linked to sediment protecting the larval starfish from their
predators, which normally keep the population in balance. The
sediment results from blasting, dredging, and dumping.
Significant changes in the benthic ecology of the Southern Cali-
fornia coast have been caused by wastes from several municipali-
ties. (11) These wastes brought about a shift in the marine popu-
lation. Large numbers of sea urchins replaced other organisms
and grazed off most of the giant kelp beds near the sewer outfalls.
Because of the commercial value of giant kelp and the habitat it
provides for many marine animals, the changes were an economic
and an ecologic loss.
Habitat changes may be quite subtle. Near a sewer outfall off
San Diego, species variety declined an average of 30 percent. Pop-
ulations of remaining species sometimes overran their food sup-
ply. The loss of species diversity made the ecosystem less stable.
(71)
HUMAN IMPACTS
Public health problems are created by toxic agents and patho-
gens that find their way into the human food chain through sea-
food. Floating refuse and surface films reduce recreation oppor-
tunities and damage esthetic values. Economic losses are incurred
when seafood species are killed or are rendered inedible by pollu-
tion.
Public Health
The standard method for determining the potential public
health hazard of fish is the coliform bacteria count. (These harm-
less bacteria are rough indicators of pathogens.) If the count
exceeds Food and Drug Administration (FDA) standards, shell-
fish beds are closed to harvesting.
Effluents from land-based sewage outfalls are the major source
of coliform bacteria, but ocean dumping of sewage sludge is also
significant. The FDA found that ocean bottom sediments up to 6
miles from the New York Bight sludge dump contained coliform
counts that exceeded permissible levels. On May 1, 1970, this area,
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GUIDELINES AND REPORTS 3345
12 miles in diameter, and a similar area off Delaware Bay were
closed to shellfishing. Clams harvested for sale in the New York
Bight contained coliform bacteria 50 to 80 times higher than the
standards set by FDA. (2)
Hepatitis virus are carried by shellfish. A 1961 outbreak of
infectious hepatitis was traced to raw shellfish taken from Raritan
Bay, N.J. (36) Shellfish have been collected with polio virus con-
centrated to at least 60 times that of surrounding waters. (52)
White perch have become actively infected with human patho-
gens by exposure to human wastes, and they may transmit these
pathogens over considerable distances. Exposure is sufficient for
them to develop antibodies to such human diseases as pseudo-tub-
erculosis, paratyphoid fever, bacillary dysentery, and a variety of
chronic infections. (40)
Aquatic and marine organisms are capable of concentrating ra-
dioactivity to high levels (45). In a study near Oak Ridge Na-
tional Laboratory, dead embryos and abnormalities appeared in
irradiated broods of killifish. This is the only example of a natural
marine or aquatic population subjected to high-level irradiation
over many generations. (68)
Hydrocarbons of the type known to cause cancer in man and
animals are concentrated by oysters and mussels in polluted areas.
These substances remain invisible and odorless in seafood tissues,
even after frying. (28) Cancer in humans has not yet been traced
to consumption of carcinogens from seafood, but public health
officials do not discount the possibility.
Between 1953 and 1960, 111 persons were reported to have been
killed or to have suffered serious neurological damage near Mina-
mata, Japan, as a result of eating fish and shellfish caught in areas
contaminated by mercury. Among these were 19 congenitally
defective babies whose mothers had eaten the fish and shellfish.
Subsequently, at Niigata 26 more cases of mercury poisoning were
noted. (1) The fish eaten by the affected Japanese contained from
5 to 20 parts per million of methyl mercury.
Mercury pollution recently discovered in 33 States and in Can-
ada caused many fishing areas to be closed. Concentrations of as
high as 5 parts per million have been found in fish in the Great
Lakes. (1)
Loss of Amenities
The coastal zones provide recreation and beauty for the 60 per-
cent of the Nation's people dwelling there. Oceans afford swim-
ming, boating, water skiing, sport fishing, and wildlife viewing
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3346 LEGAL COMPILATION—GENERAL
opportunities,2 and they are some of the most scenic areas of the
United States.
Many beaches have been closed to swimming because of the high
coliform content of the water. Most closed beaches are near large
2 The Bureau of Sport Fisheries and Wildlife estimates that as many as 100 million people
observe the wildlife of the U.S. estuarine zones.
metropolitan areas, such as San Franciso and New York. Floating
materials, such as solid waste and oil, pose a major threat to
amenity values. Rotting algae and anaerobic waters cause unpleas-
ant odors and visual pollution. And debris are often a hazard to
small boats.
Economic Loss
Significant economic losses result from ocean pollution. A major
loss is the commercially valuable fish or other seafood species
killed directly or indirectly or rendered inedible. They represent
serious social and financial losses because of the near subsistence
level of many fishermen.
In 1969, the total catch of crabs, lobsters, shrimp, oysters,
clams, and scallops was 729 million pounds. Because one-fifth of
the Nation's 10 million acres of shellfish beds are closed due to
contamination, it can be estimated that the total catch would have
been 181 million pounds higher. This estimate is probably low,
since the closed areas are particularly productive—in lush estuar-
ine systems in close proximity to large cities where they would
have been harvested intensively. Figure 1 indicates the financial
impact assuming a loss of one-fifth the potential catch.
The loss is well documented in San Francisco Bay. (36) Prior to
1935, the annual commercial harvest of soft shell clams was be-
tween 100,000 and 300,000 pounds. Today clam-digging is vir-
tually nonexistent because of pollution. The annual commercial
landings of the shrimp fishery prior to 1936 were as high as 6.5
million pounds; landings in 1965 were only 10,000 pounds.
Contamination by pesticides or mercury has rendered nine spe-
cies of fish unfit for consumption by humans. Many States have
banned fishing and impounded fish because of mercury poisoning,
and the FDA impounded coho salmon due to high levels of DDT.
Even where contaminant levels do not prevent safe consump-
tion, the food may be discolored or tainted. Sludge decay can
result in the production of hydrogen sulfide, which blackens the
shells of clams and oysters and affects their taste and odor. (36)
In even very small amounts, oil can taint the flesh of fish. The
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GUIDELINES AND REPORTS 3347
discharge residue from burning 2.6 gallons of a gasoline-oil mix-
ture in an outboard motor was sufficient to taint fish in 1 acre-foot
of water. (67)
A further ocean dumping cost is that of cleaning up or rehabili-
tating polluted beaches and other shores. If projected increases in
solid waste are dumped at sea, continuous and expensive clean-up
operations will be required.
SUMMARY
The information presented in this chapter is necessarily incom-
plete. Knowledge of ocean pollution is rudimentary, and generally
it has not been possible to separate the effects of ocean dumping
from the broader issue of ocean pollution. Yet one general conclu-
sion is apparent: There is reason for significant concern. Dealing
with ocean pollution requires that all sources be greatly reduced.
If no action is taken and ocean dumping continues to increase, the
long-term damage to the marine environment will be great.
Chapter III
Alternatives To Ocean Humping
The critical or potentially critical sources of ocean pollution and
their effects on the marine environment are described in Chapters
I and II. Based on these findings, a strong national policy has been
recommended to stop or limit ocean dumping substantially. The
extent to which the recommended policy can now be implemented
depends on existing alternatives for handling wastes.
This chapter sets forth alternatives, both interim and longer
term. The interim alternatives discussed are practical, available
disposal techniques which can be used now to reduce or prevent
damage to the marine environment without shifting the problem
to another part of the environment. Long-term alternatives look
toward recycling, resource conservation, and more economic and
environmentally safe techniques of waste management. Costs and
capacity are estimated to indicate the impact of the alternatives.
The types of wastes for which alternatives are presented in-
clude : solid waste, sewage sludge, dredge spoils, industrial wastes,
construction and demolition debris, radioactive wastes, and explo-
sive and chemical munitions.
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3348 LEGAL COMPILATION—GENERAL
Although dredge spoils and industrial wastes are the two larg-
est sources of ocean dumping, solid waste is discussed first because
the alternatives are largely applicable to the other wastes dumped
in the ocean.
SOLID WASTE1
The amount of solid waste dumped in the ocean is not yet
significant, less than 1 percent of all wastes disposed of in the
ocean. Only about 26,000 tons were dumped in the ocean in 1968,
(66) compared to the 190 million tons of municipal solid waste
1 Includes residential, commercial, industrial, institutional, and agricultural solid wastes.
collected and disposed of on land. (28) However, many communi-
ties are beginning to look to the ocean as a place to dispose of solid
waste in light of increasing population; increasing per capita
rates of solid waste generation; and the declining capacity, in-
creasing costs, and lack of nearby land disposal sites. If many
coastal cities were to dump solid waste in the ocean, many millions
of tons would be introduced annually into the marine environment.
Although little research has been done on how solid waste affects
marine ecology, it is known that improper disposal of solid waste
on land seriously contaminates ground water. Further, floating
materials from the solid waste dumped in the ocean would be
unattractive, especially when carried to shore. Accordingly, the
policy recommended would prohibit new sources of solid waste in
the ocean and call for phasing out existing sources.
Interim Alternatives
Nationwide, landfill capacity is generally adequate. The average
time remaining for currently used landfills in all metropolitan
areas is 16 years, although some large metropolitan areas will
soon exhaust their current sites. (28) Only 10 percent of land
disposal operations are sanitary landfills, in which the wastes are
covered daily by soil. The other 90 percent are open dumps, which
create many health and esthetic problems. Rodents and insects
breed and carry infectious diseases, and ground water often be-
comes polluted. Esthetically, open dumps are unattractive and
malodrous. Converting open dumps to sanitary landfills can be
accomplished relatively quickly and inexpensively.
There are two alternatives to ocean dumping of solid waste.
New sites can be developed, but often at a considerably increased
distance. Or incinerators can be constructed. By reducing the vol-
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GUIDELINES AND REPORTS 3349
ume, possibly up to 90 percent, they can prolong the use of exist-
ing sites by many years.
The barriers to acquiring new sites are political and financial.
Communities are reluctant to be the dumping ground for the
wastes of large metropolitan areas, and transport to distant sites
increases costs. Transfer stations and rail or transfer truck opera-
tions make these longer hauls more costly than collection vehicles'
traveling only a few miles to the disposal area. But they provide
more flexibility in site selection. The barriers to the construction
of new incinerators are largely financial. They are expensive to
build and to operate. More stringent air pollution standards will
add to both capital and operating costs.
Comparative costs for various alternative methods of disposal
are shown in Table 1. As it indicates, the additional costs for use
of rail haul and land disposal instead of ocean dumping are not so
high when the distances are comparable. For example, when the
wastes are transported 50 or 100 miles by either method, the costs
of land disposal are less than 10 percent higher.
If conducted correctly, rail haul and land disposal offer an eco-
nomically attractive method of disposing of solid waste. However,
the political problems are a significant barrier to a good economic
and environmental solution. A stronger regional approach to
waste management, better disposal operations, and adequate pay-
ment for the use of land could well overcome these barriers.
One possible alternative deals with the problems of both solid
waste disposal and abandoned strip mines. Because of the small
incremental costs involved in rail haul, large coastal cities could
haul their wastes to these mines economically.
Available acreage within range of the three coastal areas has
been estimated. In the mid-Atlantic States of Ohio, Pennsylvania,
West Virginia, Virginia, New York, and New Jersey, over 660,000
acres of unreclaimed surface-mined land are available. Over
300,000 additional unreclaimed acres are available in the Gulf
Coast States, Texas, Alabama, Mississippi, Louisiana, and Florida.
On the West Coast, California and Nevada have approximately
150,000 acres of available, unreclaimed surface-mined land.
Nationwide, surface mining has disturbed over 3.2 million acres
of land. The Department of the Interior estimates that over two-
thirds of this acreage is completely unreclaimed. This 2 million
acres represents 3,300 square miles of potential solid waste dis-
posal sites. (31)
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3350 LEGAL COMPILATION—GENERAL
TABLE 1.—COMPARISON OF ESTIMATED SOLID WASTE DISPOSAL COSTS (28, 47)
[On a cost-per-ton basis)
Unit process
Collection >
Transfer operation 2
Haul
Disposal 3
Sanitary Inciner-
landfill at ation
nearby at central
site city site
$15.00
. .- 0
0
1.25
$14.00
0
0
10.50
Rail ha"l and Baling and ocean
landfill dumping
50
mi.
$14.00
4.05
2.65
.65
100
mi.
$41.00
4.05
3.00
.65
150 20
mi. mi.
$14.00 $14.00
4.05 4,20
3.45 .60
.65 0
50
mi.
$11.00
4.20
1.30
0
100
mi.
$14.00
4.20
2.25
0
Inciner-
ation
ship-
based
$14.00
0
0
10.89
Total 16,25 24.50 21.35 21.70 22.15 18.80 19.50 20.45 24.89
1 Higher cost of collection for nearby landfill due to lack of central city site.
2 Higher cost of ocean baling due to higher density requirements.
3 Lower cost of landfill operation due to baling.
These figures do not consider suitability of terrain, amount of
cover material, volume in need of fill, or other limiting factors.
Nevertheless, there are access roads and rail lines to almost all
this land, and if legal and social barriers can be removed, the
problems both of providing large disposal areas and of reclaiming
the land would be solved.
Containerizing wastes—that is, enclosing them in plastic or
other material to prevent interaction with the sea—raises a num-
ber of potential problems. First, any containment system will still
allow leaching of the wastes, some of which are toxic. Second,
containment systems will probably not isolate the wastes from the
ocean environment indefinitely. Plastics and other floatables are
likely to be released eventually. As indicated in Table 1, the eco-
nomics of containerizing wastes are not significantly better than
for land disposal, assuming that solid waste would have to be
dumped some distance from shore.
Ship-based incineration has also been suggested as an alterna-
tive disposal technique. It appears, however, to have little eco-
nomic or environmental advantage. As Table 1 indicates, the costs
are higher than for rail haul or land-based incineration. And diffi-
culties of systematically locating and using sea dump sites may be
a problem compounded by the difficulties of operating during bad
weather. Further, many of the materials are noncombustible, and
the effects of large amounts of ash residue on the ocean environ-
ment are not clearly known.
Longer-Term Alternatives
Although ship-based incineration may not be practical, other
advances in incineration may have long-term benefits for solid
waste management. A new type of incinerator, the CPU-400, is
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GUIDELINES AND REPORTS 3351
being developed under a Bureau of Solid Waste Management con-
tract. Shredded and dried refuse is burned in a fluidized bed reac-
tor to produce gas for turboelectric power generation. A 400-ton-
per-day modular unit will produce up to 15,000 kilowatts of elec-
tric power. Total annual cost is projected at between $4.27 per ton
for a municipal utility and $5.99 per ton for private ownership;
the difference is a function of the interest rate. (18) (Current
incineration costs are $10.50 per ton.) Depending on revenues
from the sale of electricity and residue byproducts, the net cost
could be reduced. Soon in the pilot plant stage, this incinerator
may provide a low-cost, environmentally sound method of dealing
with solid waste.
Recycling may also become general practice. Technology exists
to recycle many types of paper, glass, aluminum, and ferrous
metals, among others. Currently, 19 percent of the materials used
to manufacture paper products in the United States are recycled
rather than virgin materials. (28) Eighty-five percent of all auto-
mobiles taken out of service are recycled and used in steelmaking,
and tires and aluminum cans are beginning to be recycled. (28)
The problems and associated costs of separation; transportation;
poor secondary markets; and other legal, economic, and social
barriers have limited recycling. However, with new approaches to
these barriers, new technology, and the need to conserve resources,
recycling may become practical on a broad scale in the future. And
as more materials are reused, disposal needs will lessen. It is
important to note that inexpensive but environmentally unsound
practices such as ocean dumping discourage waste reuse and recy-
cling, which are desirable in the long term.
SEWAGE SLUDGE
In 1968, about 200,000 tons of sewage sludge on a dry basis
were disposed of at sea, compared to about 3 million tons disposed
of by other means. Increasing population and the higher levels of
treatment required to meet water quality standards will generate
even more sludge. Given the difficulties of sludge disposal and the
high costs involved, pressures to use the oceans will necessarily
increase. The environmental problems from sludge disposal in the
ocean are significant, in terms both of volume and of the toxic and
sometimes pathogenic materials involved. Accordingly, the policy
recommended would phase out ocean disposal of sewage sludge
and prevent new sources.
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3352 LEGAL COMPILATION—GENERAL
Alternatives (Interim and Longer Term)
Sewage sludge is primarily disposed of by using it as a soil
conditioner or landfill and, to a much lesser degree, by incinera-
tion. The costs of present ocean disposal operations are generally
far below costs for land-based disposal. Ocean disposal a few miles
from shore costs an average $1 per ton. (66) Table 2 contains
more detailed data on the per-ton-mile costs for longer hauls.
TABLE 2.—BARGE HAUL COSTS FOR SEWAGE SLUDGE DISPOSAL (37)
City
New York City
Elizabeth, Md
Baltimore, Md
Philadelphia, Pa
Distance C
(miles) 1
25
30
230
300
lost per- C
ion-mile
$0.30
.23
.08
.04
lost per
ton
$7.50
6.90
18.40
12.00
TABLE 3.—ESTIMATED COSTS OF LAND-BASED SEWAGE SLUDGE DISPOSAL (37, 50)
Location Method Cost per ton
Land Digestion and lagoon storage (Chicago). $45
Digestion and land disposal' 22
Composting 34-45
Processing into granular fertilizer (net cost) 35-50
High temperature incineration 35-60
Ocean _ Barging undigested sludge _ 3-18
Barging digested sludge 8 36
Piping disposal K-30
1 At Chicago, with a 7-mile pipeline to the land disposal site.
Depending on distance, actual barge haul costs range from $1 to
$12 per ton. Thickening, a process preparatory to barging, can
add $2 to $6. Digestion can raise total ocean disposal costs by $5 to
$18 per ton. Total ocean dumping costs can range from $3 for
undigested sludge deposited nearshore to perhaps $40 per ton for
digested sludge dumped several hundred miles offshore. The cur-
rent average is low because most communities that use the ocean
for disposal dump undigested sludge nearshore. Table 3 summa-
rizes costs for land and ocean disposal of sewage sludge.
These data indicate that land-based sewage sludge disposal is
more expensive than nearshore ocean disposal. But when sewage
is digested and barged a distance from shore, the costs become
comparable, and land-based disposal may even be cheaper. As indi-
cated in the discussion on solid waste disposal alternatives, the
capacity does exist to handle more sewage sludge. But current
land-based operations are often not adequate to protect the envi-
ronment.
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GUIDELINES AND REPORTS 3353
Pipeline disposal of treated sewage sludge, used by Los Angeles,
has been proposed for other areas. Because piped and barged
sludge materials are the same, the same policy is recommended.
Further, the potential savings for piping are not significant in
light of the potential environmental impact.
Piping digested sewage sludge 7 miles from Los Angeles costs
an estimated $1.55 per ton. (37) FWQA estimates that current
costs on the East Coast would double the net cost—a function of
both increasing costs since the Los Angeles pipeline was con-
structed and the higher construction costs on the East Coast.
Costs for longer pipelines to limit environmental damage would
increase at a linear rate, and perhaps even faster, as the distance
increased because of construction and pumping difficulties. A 30-
mile pipeline might raise the cost to $12 per ton and a 50-mile
pipeline to perhaps $20 to $30 per ton.
More promising is the use of digested sludge for land and strip
mine reclamation and for a supplemental crop fertilizer. As dis-
cussed earlier, many strip mines are in need of reclamation. Se-
wage sludge is high in nutrient value and can be used to improve
lands low in organic matter.
The Metropolitan Sanitation District of Chicago has intensively
researched the environmental impact and potential of using di-
gested sewage sludge as a crop fertilizer and in land reclamation.
Their studies document the nutrient value, lack of odor, and safety
when used on all types of land, including clay, sand, and acid strip
mine tailings. Depending on crops and soil condition, other nu-
trients may be needed, but the sludge can supply much of the
needed nutrients and moisture. Chicago now spends over $20 mil-
lion annually to dispose of 900 tons (on a dry weight basis) of
sewage sludge per day, using incineration, lagoon storage, and
other methods. (50) The District is prepared to initiate a program
of rail or barge haul for sludge disposal and land reclamation
within a year. The program should cost approximately the same
amount as current operations and has potential for large savings
if pipe transport becomes feasible. Use of sludge for land reclama-
tion looks promising, but it must be carefully controlled and moni-
tored to assure no environmental harm.
In this discussion of land-based sewage sludge disposal, the al-
ternatives to ocean dumping do not involve significantly greater
costs. However, a phase-out period is required because of substan-
tial commitments by some communities and the lead time neces-
sary to develop the alternatives.
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3354 LEGAL COMPILATION—GENERAL
DREDGE SPOILS
Disposal of dredge spoils—38 million tons—represents 80 per-
cent of all ocean dumping in 1968. (66) Removed primarily to
improve navigation, spoils are usually redeposited only a few
miles away. About one-third is highly polluted from industrial and
municipal wastes deposited on the bottom. (22) Their disposal at
sea can be a serious source of ocean pollution. The recommended
policy to phase out ocean disposal of polluted dredge spoils recog-
nizes that the speed of implementation depends almost entirely on
available alternatives.
Interim Alternatives
Disposing of all dredge spoils on land is not possible simply
because of the vast tonnage. The Corps of Engineers estimates
that of the total dredge spoils removed from each coastal region,
45 percent, or approximately 7,120,000 tons, on the Atlantic Coast
are polluted; 31 percent, or 4,740,000 tons, on the Gulf Coast, are
polluted; and 19 percent, or 1,390,000 tons, on the Pacific Coast
are polluted.
Until land-based disposal facilities can handle these quantities,
the following interim operational techniques are recommended:
First, the pollutant level of dredge spoils should be determined by
sampling and analysis for such key factors as BOD and concentra-
tion of heavy metals. If the spoils are not polluted, they can be
disposed of in the ocean. However, care must be taken in the
location of disposal sites and in the method of disposal in order to
minimize turbidity and to protect marine life.
For polluted dredge spoils, current disposal practices are not
adequate, but mitigation of damage to the environment is possible
without recourse to sophisticated and/or expensive processing
techniques. The estimated cost increases for hauling polluted
spoils farther from the dredging site are presented in Table 4.
TABLE 4.—ESTIMATED DREDGING COSTS PER CUBIC YARD (24)
Method
Hydraulic pipeline dredging
Dipper dredging and dump scows
Hopper dredging
1 mile
$0.95
1.10
0.28
3 miles
$1.30
1.25
0.34
[0 miles :
(')
$1.50
0.54
JO miles
(')
$1.80
.081
50 miles
(i)
$3.60
1.66
1 Pipeline dredging operations beyond 3 miles are usually not practical because of problems in handling long floating
pipelines and the extra pumping equipment involved.
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GUIDELINES AND REPORTS 3355
TABLE 5.—ESTIMATED COSTS FOR DISPOSAL OF POLLUTED SPOILS USING HOPPER DREDGE
Coastal area Tons Smiles 10 miles 20 miles 50 miles
Atlantic Coast.. 7,120,000 $2,421,000 $3,845,000 $5,767,000 $11,819,000
Gulf Coast 4,740,000 1,612,000 2,560,000 3,839,000 7,868,000
Pacific Coast.- 1,390,000 473,000 751,000 1,126,000 2,307,000
Total 13,250,000 4,506,000 7,156,000 10,732,000 21,994,000
Most spoils are now deposited within a few miles from shore in
less than 100 feet of water. Table 5 summarizes the additional
costs for disposing of polluted dredge spoils farther out to sea
using a hopper dredge.
As the table indicates, the additional cost for dumping polluted
dredge spoils 10 miles rather than 3 miles out is $2.7 million
annually. For 20 miles, the additional cost is $6.2 million; for 50
miles, it is $17.5 million.
Diking is another interim alternative for disposing of polluted
dredge spoils. Briefly, a dike is constructed to hold the dredge
spoils nearshore or at the shoreline. Its effectiveness depends on
the prevention of contaminated spoils' interaction with surround-
ing waters. At Cleveland, diking was successful in containing over
99 percent of the contaminants in dredge spoils removed from
Lake Erie. (23)
Estimates for 35 dike projects on the Great Lakes indicated that
the costs of diking and depositing dredge spoils vary greatly—
from $0.35 to over $6 per cubic yard. (23) The increased cost for
disposal by diking over open-lake disposal ranged from $0.03 to
almost $5.50 per cubic yard, with an average increase of $1.50 per
cubic yard.
Diking is not without environmental problems. Dredge spoils
would not provide fill of sufficient strength to allow use of the
diked area for many years. Hence, areas of the coastal zone, al-
ready in high demand, would be unusable. Further, diking is unat-
tractive and may cause greater environmental problems than con-
trolled dispersal of pollutants.
Longer-Term Alternatives
Reduction in the volume of sediments requiring dredging and
higher levels of treatment of wastes will both lessen the problem
of polluted dredge spoils. Erosion control through improved con-
struction, highway, forest, and farm planning and management
will reduce future dredging needs. One example is the recently
completed stream bank stabilization project on the Buffalo River,
which reduced maintenance dredging requirements 40 percent.
(23) The level of pollution in dredge spoils will be reduced by the
-------
3356 LEGAL COMPILATION—GENERAL
higher levels of treatment of municipal and industrial wastes re-
quired by Federal-State water quality standards within a few
years.
High-temperature incineration of contaminated dredge spoils is
a longer-term alternative requiring further development and test-
ing. Such incineration can render spoils an inert ash, safe for land
disposal. Processing costs are a function of the size of the plant,
the percent of total solids, and the percent of volatile solids. Fig-
ure 1 illustrates disposal costs per cubic yard for incinerating
dredge spoils whose total solid content ranges between 30 percent
and 45 percent (a normal range) and volatile solids between 10
percent and 20 percent (a normal range). Also shown are costs
for aerobic stabilization, a process similar to that used for sewage
treatment. These costs can range from $2 to $12 per cubic yard or
roughly 4 to 24 times current ocean disposal costs. Compared to
disposal 20 miles out to sea, however, incineration is 3 to 15 times
as costly. But compared to disposal at 50 miles, incineration may
cost the same or it may be as much as 8 times more costly.
Special treatment to remove toxic materials so that the sludge
may be used as a fertilizer either on arid lands or for ocean
farming is possible. An approach similar to that discussed for use
of digested sewage sludge as a fertilizer may be feasible.
INDUSTRIAL WASTES
Industrial wastes vary widely, but they usually contain nu-
trients, heavy metals, and/or other substances toxic to marine
biota. Although the volume of industrial wastes is 10 percent of all
wastes disposed of in the ocean, it is minor compared to the quant-
ities of industrial wastes treated at land-based facilities.
The policy recommended would call for termination of ocean
dumping of industrial wastes as soon as possible. Ocean dumping
of toxic industrial wastes should be terminated immediately, ex-
cept in those cases in which no alternative offers less harm to man
or the environment.
Interim Alternatives
Many industries utilize ocean disposal because it is cheaper and
easier than other disposal processes. Table 6 shows costs for bulk
and containerized wastes.
TABLE 6.—INDUSTRIAL WASTES DISPOSAL COSTS (66)
Average Range of
Method cost/ton cost/ton
Bulk wastes.... $1.70 $0.60-$9.50
Containerized wastes.._ 24.00 $5-$I30
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GUIDELINES AND REPORTS 3357
The costs of discharging bulk wastes directly into the sea are
significantly lower than for other disposal techniques. Containeri-
zation, used mainly for toxic materials, is much more costly than
dumping bulk wastes.
Industrial wastes can be treated and disposed of on land, or
they can be incinerated. Whichever technique is used, it is neces-
sary to assure that the environment is protected. Treatment of
wastes should not add to stream pollution, and incineration should
not add to air pollution. Deep-well disposal of toxic wastes is
generally undesirable because of the danger of ground water pol-
lution.
Unlike the other categories discussed, industrial wastes are not
homogeneous. Hence, interim disposal methods will vary not only
among the different types of wastes but also according to process,
location, local practices, and other factors. The costs of using some
alternatives will be significantly higher than for ocean dumping,
but as a portion of total production costs, generally they will not
be great. Total industrial pollution control costs, as a percentage
of gross sales, are well under 1 percent, although costs for some
industries are much higher.
Longer-Term Alternatives
In the long term, changes in industrial production processes and
recycling offer great promise for reducing or reusing industrial
wastes. For example, the average waste from modern sulfate
paper plants is only 7 percent of wastes in the older sulfite proc-
ess. In some cases, recycling will be an alternative to ocean dis-
posal. Two West Coast refineries are now recycling oil wastes
instead of disposing of them at sea.
Toxic wastes present a more difficult problem. They cannot be
stored indefinitely, but allowing ocean disposal is a disincentive to
development of adequate detoxification and recycling techniques
and of production processes with fewer toxic byproducts. But
highly toxic wastes will continue to be produced, and many will
not be amenable to land disposal.
One alternative worthy of further study is the establishment of
regional disposal, treatment, and control facilities. Federally or
privately operated, the facilities could conduct research on and
provide for waste detoxification and storage. Complicated disposal
processes that are too expensive or complex for a single company
could be used jointly to dispose of wastes. Fees would need to be
sufficiently high to encourage development of private solutions,
-------
3358 LEGAL COMPILATION—GENERAL
except in the most troublesome cases or when significant econom-
ies would result from shared use of facilities.
CONSTRUCTION AND DEMOLITION DEBRIS
Construction and demolition debris, less than 1 percent of all
wastes dumped in the ocean, (66) are composed mainly of dense
and inert materials. Because of the small amounts dumped and
their character, these wastes are not a threat to the marine envi-
ronment. Moreover, amounts dumped in the ocean are not ex-
pected to increase significantly because of their high value as
landfill. The recommended policy assumes continued ocean dump-
ing, but with care to prevent damage to the marine ecosystem.
RADIOACTIVE WASTES
Since 1962, no significant quantities of radioactive wastes have
been dumped at sea. Rather, they have been stored at several sites
operated or regulated by the Atomic Energy Commission or at
sites regulated by the States. Increasing demands for electricity
and for use of nuclear power portend a dramatic increase in the
amounts and kinds of nuclear wastes produced. Hence, it is impor-
tant to develop policy to prevent contamination of the ocean.
The policy recommended would continue the practice of prohib-
iting high-level radioactive wastes in the ocean. Dumping other
radioactive materials would be prohibited, except in a very few
cases for which no practical alternative offers less risk to man and
his environment.
Alternatives (Interim and Longer Term)
The quantity of nuclear wastes is not large, and the technology
for storing and treating them is well developed. However, the
AEC estimates that the amount of high-level liquid radioactive
wastes will increase approximately sixtyfold between 1970 and the
year 2000. High-level wastes, usually liquid, are now stored on an
interim basis in large, well-shielded tanks. In the long run, the
wastes will be solidified, reducing their volume by a factor of ten,
for eventual storage in special geological formations, such as salt
mines. As new nuclear facilities are constructed, provision is being
made for parallel construction of storage tanks and treatment
facilities to handle the wastes.
Solid radioactive wastes have been buried in carefully controlled
landfill sites. In 1970, about 40,000 cubic yards of solid radioactive
wastes will be buried in approximately 15 acres. (70) The in-
crease in the amount of these wastes in the next decade will
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GUIDELINES AND REPORTS 3359
require about 300 acres. This figure could be reduced with compac-
tion and incineration, which are currently being used or planned.
Low-level liquid wastes from nuclear power generation, medical
facilities, etc. are treated and/or stored to reduce radioactivity. A
small amount is eventually released to the environment under con-
trolled conditions.
Large radioactive structures, chiefly reactor vessels and asso-
ciated parts, have heretofore not presented a significant problem.
With the exception of ocean disposal of the SEAWOLF submarine
reactor vessel, obsolete reactor vessels and associated parts have
been decontaminated, dismantled, and stored on land. Sixteen nu-
clear power plants are now operating, and 80 are either under
construction or permit applications are pending. There may be as
many as 1,000 plants by the year 2000. When reactor vessels are
taken out of service, each used structure is a source of high-level
induced radiation.
There are three alternative ways to dispose of these vessels and
associated parts: ocean disposal; entombment in place, with final
disposition after radioactive decay; and dismantling and burial.
Ocean disposal is the cheapest method when the facility is on the
coast or when waterborne transportation is available. Entomb-
ment provides an opportunity to monitor disposal operations care-
fully but occupies valuable land during the period of radioactive
decay. Dismantling and burial is the most expensive of the alter-
natives.
Because of the need to keep all sources of radioactivity at the
lowest possible level, ocean disposal of the wastes should be
avoided except when no alternative offers less harm to man or the
environment. These cases should be carefully examined to assure
that no safe and practical alternatives do exist. If ocean disposal is
necessary, it should be carefully controlled.
EXPLOSIVES AND CHEMICAL MUNITIONS
Large quantities of explosives and some chemical warfare
agents have been disposed of at sea. No biological warfare agents
have been disposed of at sea. The policy recommended would pro-
hibit ocean disposal of chemical and biological warfare agents and
phase out disposal of explosive munitions.
Alternatives (Interim and Longer Term)
Ocean disposal of munitions was developed as an alternative to
burning them in the open. That practice is often hazardous, is
noisy, and creates air pollution.
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3360 LEGAL COMPILATION—GENERAL
Other alternatives to ocean dumping are available and should be
used. In some cases weapons can be dismantled and critical compo-
nents, such as gunpowder, lead, etc., either disposed of safely or
sold for reuse. Centralizing the disposal of obsolete munitions may
be desirable to provide efficient dismantling. Alternatively, porta-
ble disposal facilities, under development by the Department of
Defense, offer promise. When salvage value is significant, commer-
cial contracting for disposal services may be possible. Mass under-
ground burial or detonation is another alternative.
The alternatives used for disposal of munitions will depend on
ability to train people for disposal operations, relative costs, avail-
able sites, and their environmental impact. Dismantling and recy-
cling the materials is the preferable alternative from an environ-
mental point of view, but facility and manpower constraints may
dictate the use of other alternatives to ocean dumping.
For chemical warfare agents and munitions, the alternatives to
ocean disposal are neutralization and incineration. Toxic chemical
warfare agents can be separated from munitions or containers
and then treated. Facilities are currently being modified at the
Rocky Mountain Arsenal near Denver, Colo., for disposal of tox-
ins. Similar facilities for treatment of chemical warfare agents
are needed elsewhere. (26)
SUMMARY
Interim alternatives exist to mitigate the environmental dam-
age of ocean dumping. Land capacity can be expanded by use of
rail haul, and strip mines and other lands can be reclaimed. In the
long run, technological advances and new methods of recycling
should help reduce pressures for ocean disposal. The major conclu-
sion is that a program of phasing out all harmful forms of ocean
dumping and prohibiting new sources is feasible without greatly
increased costs.
Chapter IV
Legislative Control Of Ocean Dumping
The previous chapters indicate the need for a national policy to
control ocean dumping. This chapter examines the adequacy of
State and Federal regulatory authorities to implement that policy.
STATE CONTROL ACTIVITIES
Although by tradition and Federal law the States have primary
responsibility for water pollution control, the response of the
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GUIDELINES AND REPORTS 3361
coastal States to ocean dumping has not been extensive. Where the
Federal Government has assumed authority over ocean dumping
—in New York, Baltimore, Boston, and Hampton Roads, Va.—
States have subordinated their activities to Federal control.
In some circumstances States exercise regulatory authority. Cal-
ifornia, for example, through State and regional agencies, has
provided the leading role in control of ocean dumping of such
materials as municipal garbage and industrial chemicals and solid
waste. In the San Francisco Bay area and in the San Diego area,
regional water quality control boards regulate ocean dumping op-
erations and provide for monitoring and surveillance to enforce
the regulations. Disposal operators are required to file detailed
trip reports and a monthly summary of the volume and types of
wastes dumped. In the San Diego area, prior notification of ocean
dumping is required so that a board staff member can accompany
the dumping vessel. In the Los Angeles area, the California De-
partment of Fish and Game is the lead agency. In Oregon, the
State Board of Health regulates ocean dumping, with special em-
phasis on chemicals. No other States regulate ocean dumping to a
greater extent than California and Oregon.
State regulation has not established a basis for an extensive and
comprehensive method of controlling ocean dumping. Besides gen-
eral lack of authority and programs, State jurisdiction would gen-
erally be limited to the 3-mile territorial sea.
FEDERAL CONTROL ACTIVITIES
Four Federal agencies have some responsibilities for ocean
dumping: the Corps of Engineers, the Federal Water Quality Ad-
ministration, the Atomic Energy Commission, and the Coast
Guard.
Corps of Engineers
The Corps of Engineers is the only agency with regulatory
authority to control dumping of a broad class of materials. This
authority stems from Corps responsibility for maintaining naviga-
tion in U.S. territorial waters. In general, the Corps has no power
other than in internal navigable waters and in the territorial sea.
Special authority for the port areas of New York, Baltimore,
and Hampton Roads, Va., was given to the Corps of Engineers
under the Supervisory Harbors Act of 1888 (33 U.S.C. 441-451b).
Under that Act, the Corps exerts jurisdiction over ocean dumping
beyond the territorial sea by controlling transit through the terri-
torial sea. The Act provides for the appointment of a harbor
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3362 LEGAL COMPILATION—GENERAL
supervisor to control ocean dumping, authorizing him to issue
permits for the transportation and dumping of materials into the
ocean. For ocean dumping in territorial seas, the Corps relies on
both section 4 of the Rivers and Harbors Act of 1905 (33 U.S.C.
419) and section 13 of the Rivers and Harbors Act of 1899 (33
U.S.C. 407). Through the regulatory and permit authority con-
ferred by the Supervisory Act, logs and fathometer charts are
required of tugboat operators transporting material for dumping
to provide surveillance of their operations. Infrequent ship and
aircraft patrols are made for the same purpose. The permit opera-
tion has three steps: application by the prospective dumper ac-
cording to the type of waste, issuance or rejection of a permit by
the Corps after review, and monitoring of operations by the Corps
as waste materials are transported to the designated dumping
grounds.
The Corps has cautiously exercised its power under the 1899
and 1905 Acts. Its policy on enforcing these authorities can be
attributed largely to emphasis on navigation in the enabling stat-
utes. Until recently there was considerable doubt whether the
Corps could deny a permit to a prospective waste disposal appli-
cant for any reason other than obstruction to navigation. These
doubts were dispelled only on July 16, 1970, when, in Zabel v.
Tabb, F. 2d (5th Cir.), a Federal circuit court reversed a
district court ruling. The district court disputed Corps authority
to consider environmental as well as navigational factors in deny-
ing a permit and directed that the permit be granted. The circuit
court, relying on the Fish and Wildlife Coordination Act (16
U.S.C. 661-666c) and the National Environmental Policy Act of
1969 (42 U.S.C. 4331-4347), held that the Corps does have this
authority and could deny the permit.
Despite jurisdictional limitations, the Corps has occasionally
concurred in ocean dumping outside the territorial seas when its
direction was requested. For example, dumping areas have been
established off Boston Harbor by the Corps, but with full recogni-
tion that authority was lacking. In such instances the action is
taken at the request of the user. Often when the Corps receives a
request to dump in areas beyond the territorial sea, it simply
issues a letter of no objection. Prior to issuing such a letter, the
Corps consults other governmental agencies such as the Fish and
Wildlife Service of the Department of the Interior and the fish
and game department of the affected State.
In the New York Bight area, the Corps has designated areas for
the deposit of rock, dredged material other than rock, cellar dirt,
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GUIDELINES AND REPORTS 3363
sewage sludge, chemicals, and other substances. Specific regula-
tions define the areas in which dumping can take place. Special
permits, usually of 3 months' duration, are issued for the transit
of material to the dumping areas.
Criminal penalties are authorized to punish violations of the
various Corps authorities. Fines of up to $2,500 may be levied, or
imprisonment up to 1 year may be imposed. Under the Supervisory
Harbors Act, when dredged matter is illegally dumped, a fine of $5
per cubic yard of material can be prescribed.
Corps authority over ocean dumping has several limitations:
First, with the exception of three harbors, it is restricted to the
3-mile territorial sea; yet most waste disposal sites lie outside the
territorial sea. Second, its authority originates from responsibility
for the navigability of waterways, not for their ecology. Third,
while operational authority is lodged in an agency with responsi-
bility to promote navigation, the water quality agency has no
direct control over actions of the operating agency. In fact, the
Corps could conceivably issue permits for activities that FWQA
believes damage the quality of marine waters. Fourth, to a large
extent the Corps regulates itself because it is a major producer of
dredge spoils, the material most commonly dumped at sea. This is
the type of conflict of interest that the creation of the Environ-
mental Protection Agency was designed to prevent. Nonetheless,
the Corps has capabilities which could be effectively used to imple-
ment the recommended policy on ocean dumping. It possesses a
large field organization strategically located in areas where ocean
dumping regulatory action is important.
Federal Water Quality Administration
The Federal Water Quality Administration (FWQA), in the
Department of the Interior, administers section 10 of the Federal
Water Pollution Control Act, as amended (33 U.S.C. 466g). Under
this section, States develop water quality standards for interstate
and coastal waters within their jurisdiction. The standards re-
quire Federal approval, thus becoming joint Federal-State stand-
ards.
These standards consist of water quality criteria (e.g., 5 parts
per million of dissolved oxygen) to meet designated water uses
(e.g., water supply, recreation, etc.). The standards must also
include an enforcement and implementation plan in which reme-
dial measures are to be taken in accordance with a schedule for
achieving the water quality levels established. The Federal Water
Pollution Control Act provides procedures for abating pollution
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3364 LEGAL COMPILATION—GENERAL
which violates water quality standards, endangers health or wel-
fare, or interferes with the marketing of shellfish in interstate
commerce.
The Administration has proposed amendments to the Federal
Water Pollution Control Act (S. 3471) that would authorize the
Secretary of the Interior to establish water quality standards for
the contiguous zone when pollution in these waters is likely to
cause pollution in the territorial sea and to set standards for
discharge beyond the contiguous zone of substances transported
from territory under U.S. jurisdiction. The legislation would also
call for specific effluent discharge requirements for all discharges
into waters covered under the Act.
The authority of FWQA under the Federal Water Pollution
Control Act, even with the proposed new amendments, would not
be adequate to control ocean dumping. First, there is no authority
for requiring permits to dump wastes in the oceans—authority
essential to enforcement of any effective control program. Second,
the Act's general thrust is control of continuous discharges that
clearly violate the water quality standards, rather than control of
intermittent dumping.
Other sections of the Federal W^ter Pollution Control Act deal
with ocean disposal of specific materials or classes of materials.
Section 11 of the Act prohibits discharge of harmful quantities of
oil into the navigable waters of the United States and the contig-
uous zone, but it deals only with oil and is aimed chiefly at spills,
rather than at purposeful dumping.
Section 12 of the Act provides authority for Federal agencies to
clean up and to prevent discharge of hazardous substances into the
navigable waters of the United States and the contiguous zone.
Hazardous substances are those that present an imminent and
substantial danger to the public health and welfare. Many materi-
als now dumped in the oceans could be classified as hazardous:
solid waste containing heavy metals, DDT, or other persistent
pesticides and sewage sludge from limited-treatment facilities.
But regulating intentional ocean disposal of materials is beyond
the scope of section 12.
Section 13 of the Act provides for control of sewage from ves-
sels, chiefly by requiring the installation of marine sanitation de-
vices.
Although FWQA lacks authority for issuing permits to control
ocean dumping, it has several related responsibilities. These in-
clude approval, and in some circumstances establishment, of water
quality standards in interstate and coastal waters; enforcement;
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GUIDELINES AND REPORTS 3365
research; technical assistance; monitoring; and other water qual-
ity functions.
Atomic Energy Commission
The Atomic Energy Act of 1954 authorizes the AEC to regulate
the receipt, transfer, and possession of nuclear source, byproduct,
and special materials (42 U.S.C. 2077, 2092, 2111) ; these include
most radioactive substances. In addition, the AEC has authority to
regulate and control contractually the use of radioactive materials
for its own activities, such as AEC-supported research and devel-
opment programs. These authorities cover ocean disposal of radio-
active materials but not other wastes.
Coast Guard
The Coast Guard is the principal maritime law enforcement
agency. It enforces or assists in the enforcement of all Federal
laws on the high seas and waters subject to the jurisdiction of the
United States and has authority to make inspections, searches,
seizures, and arrests. In addition, the Coast Guard can assist other
Federal agencies and State and local governments in carrying out
their responsibilities. The Coast Guard's law enforcement capabil-
ity can be an effective means of enforcing controls and standards
set by other agencies, but it has no independent authority to con-
trol ocean dumping.
RECOM MENDATIONS
Authority to control ocean dumping is currently dispersed
among several agencies. Jurisdiction is generally confined to the
territorial sea, where most material is currently not dumped. Au-
thority that is now used for control is not lodged in agencies
responsible for environmental control. Conflicts of interest exist in
that some regulatory powers are exercised by agencies with opera-
tional responsibilities in the same area.
These problems must be resolved before a national policy on
ocean dumping can be implemented. Full regulatory responsibility
—involving both setting standards and issuing permits—should be
placed in one organization. The Council recommends that this
agency be the Environmental Protection Agency.
The organization charged with implementation of the national
policy should have as its chief purpose the protection of the envi-
ronment. It should also command sufficient research and monitor-
ing resources for evaluating the environmental effects of the broad
spectrum of materials currently dumped in the oceans.
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3366 LEGAL COMPILATION—GENERAL
Authority to control ocean dumping must be tied closely to
efforts to abate other sources of pollution in the marine environ-
ment. Municipal and industrial discharge in rivers and harbors,
urban and rural runoff, and other sources are important compo-
nents of marine pollution. A regulatory program for ocean dump-
ing should be defined to complement the efforts in these other
areas.
Most of the wastes now dumped in the oceans originate in the
United States and are transported to sea for dumping. Accord-
ingly, primary jurisdictional emphasis should shift from a terri-
torial basis to regulation of the transportation of materials from
the United States for dumping.
The Environmental Protection Agency will have the broad re-
sponsibility as well as the necessary supporting programs to pro-
tect the marine environment. To give it the power to regulate
ocean dumping, legislation is required.
Chapter V
International Aspects Of Ocean Disposal
The oceans of the world are a truly international resource,
forming a vast environmental system through which its compo-
nents circulate or are dispersed by currents and the migrations of
organisms. They are critical to maintaining the world's environ-
ment, contributing to the oxygen-carbon dioxide balance in the
atmosphere, affecting global climate, and providing the base for
the world's hydrologic system.
Within the oceans, fish may travel great distances during their
lifetimes. Although the oceans are important to all nations, they
are particularly significant for many developing countries, which
increasingly depend on fisheries for essential protein. A disturb-
ance in the chemistry of the oceans which could be multiplied in
the food chains would have a major impact on food-deficient na-
tions. Hence, pollutants from one country may ultimately affect
the interests of many other nations.
WORLDWIDE CHEMISTRY OF THE OCEANS
Of the materials entering the oceans through natural processes,
the amounts of two, mercury and lead, have probably been doubled
by man's activities. In addition, man has introduced new chemical
compounds, such as chlorinated hydrocarbons (including DDT),
gasoline, dry cleaning solvents, and other organic materials, whose
biological significance is unknown.
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GUIDELINES AND REPORTS 3367
The rate of transfer of mercury from land to oceans by natural
weathering is estimated at 5,000 tons per day. (38) This amount,
about one-half the total world production of mercury, is used by
agriculture and industry in such a way that it eventually enters
the oceans. As yet, this approximate doubling has not been chemi-
cally measured, but it is thought responsible for the 10 to 20 times
increase in mercury found in sea birds off Sweden between prewar
years and the 1950's (5) and for additions to the high mercury
content of fish off Japan.
Natural weathering introduces into the oceans about 150,000-
tons of lead each year. Man introduces about 250,000 tons in the
Northern Hemisphere alone (69). Most of this lead is derived
from the washout into the oceans of atmospheric lead produced by
burning gasoline enriched with tetraethyl lead. Industrial waste
products further contribute lead. Over the last 45 years these
additions have raised the average lead content of ocean surface
waters from 0.01-0.02 to 0.07 micrograms per kilogram of sea
water. (19) Slow mixing within the oceans keeps the lead within
the upper layers, the region where biological productivity is great-
est and the chances of biological enrichment highest. However, the
biological effects of this changing lead concentration remain un-
known.
Industrial wastes and sewage sludge also introduce large quant-
ities of such metals as vanadium, cadmium, zinc, and arsenic.
Man's contribution relative to nature's is not known, but civiliza-
tion may well be close to matching nature's contribution of these
materials to the oceans.
The fact that man is changing the chemical composition of the
oceans focuses attention on the need for international action to
control the introduction of wastes into the ocean.
INTERNATIONAL LAW ON WASTE DISPOSAL
In an environmental sense there are no subdivisions within the
oceans. The highly productive coastal waters are continuous with
and contribute to the biologic activity of the deepest trenches.
Legally, the oceans are divided into the seabed and the superjacent
waters, and further subdivided into distinct zones with particular
legal characteristics. International law governing ocean waste dis-
posal must take into account these legal characteristics and the
material to be dumped.
Four conventions, referred to as The Law of the Sea Conven-
tions, were adopted at Geneva in 1958 codifying existing interna-
tional law and establishing new rules governing the law of the sea.
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3368 LEGAL COMPILATION—GENERAL
The Convention on the Territorial Sea and the Contiguous Zone
sets out three zones—the territorial sea, the high seas, and the
contiguous zone between them.
Narrow bays, estuaries, and other semi-enclosed areas are
classed as internal waters. Seaward of the internal waters and of
the low-water line along uninterrupted coasts is the territorial sea,
extending for 3 miles. Between 3 and 12 miles from the shore is
the contiguous zone. The contiguous zone, together with the wa-
ters lying seaward of it, comprise the high seas. Each has distinct
legal characteristics affecting rights to dispose of materials in it
and to control such disposal.
A coastal state (nation) has exclusive control over its internal
waters and its territorial sea. In these areas, the coastal state has
exclusive power to determine dumping sites and to enact necessary
sanitary and pollution laws to protect its citizens and their prop-
erty. These laws can be enforced against ships of both the coastal
state and of foreign registry. In addition, a coastal state may
control the transport of waste products from its ports. However,
in its territorial sea, the coastal state must permit the innocent
passage of foreign vessels that do not prejudice its peace, good
order, or security. As discussed in Chapter IV, Congress has en-
acted legislation that covers ocean disposal of oil and sewage
wastes from vessels.
Within the contiguous zone, 3 to 12 miles out to sea, the coastal
state may exercise some control necessary to prevent pollution.
The right to exercise these controls in the contiguous zone, how-
ever, does not change the high seas status of those waters. Under
the terms of the Convention on the Territorial Sea and the Contig-
uous Zone, a coastal state cannot act to prevent dumping in the
contiguous zone unless such action is necessary to prevent in-
fringement of sanitary regulations within its territorial sea.
The international law governing the high seas, the largest juris-
dictional zone, is codified in the 1958 Geneva Convention on the
High Seas. This Convention provides for freedom of navigation
and of fishing, freedom to lay submarine cables and pipelines,
freedom to fly over the high seas, and other freedoms recognized
by international law, such as dumping.
The Convention sets forth two fundamental concepts: It de-
clares the high seas as an area not subject to sovereignty, and it
states that the freedoms of the seas which are recognized in inter-
national law must be exercised by states with reasonable regard to
the interests of all other states in their exercise of freedom of the
high seas. Inasmuch as one use may interfere with another cur-
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GUIDELINES AND REPORTS 3369
rent or potential use of the high seas, the reasonable regard stand-
ard holds that there must be an accommodation of the various and
possibly conflicting uses of the high seas.
The right to dispose of waste materials in the high seas is a
traditional freedom of the seas. However, under the standards set
out in the Geneva Convention on the High Seas, this freedom—
like all other freedoms of the seas—must be exercised with reason-
able regard to other states' use of the oceans. It is not possible to
say that any particular waste disposal or dumping project will
meet the requirements of international law. Only after careful
consideration can it be determined that a particular ocean dump-
ing proposal meets the reasonable regard standard set out in the
Convention. For example, a project for disposal of unpolluted
dredge spoil may be suitable for an area of the high seas in which
disposal of chemical waste would neither be suitable nor legal.
Unfortunately, the law of the sea conventions do not establish a
hierarchy of ocean uses. However, international law places para-
mount importance on the protection of human life. It allows de-
struction of property to save human life or to prevent greater
property damage. Clearly, any dumping activity that threatens
life or directly damages property violates international law.
It is important to recognize that the law of the sea is based
primarily on conventions or other agreements which were con-
cluded prior to current understanding of the actual and potential
impacts of dumping on the marine environment. Consequently,
present international law appears inadequate to deal with possible
long-term environmental effects of various actions.
INTERNATIONAL ACTIVITIES
Many international organizations engage in activities related in
some way to marine pollution. Most of these activities are de-
signed to exchange ideas and/or to coordinate national efforts. It
is important to recognize, however, that in most cases, their con-
cern with ocean pollution and particularly with ocean dumping is
only incidental or peripheral. Although efforts such as the Interna-
tional Decade of Ocean Exploration will provide useful data, the
IDOE does not give the highest priority to ocean pollution. Com-
bined annual expenditures on activities designed to improve envi-
ronmental quality, of which ocean waste disposal problems consti-
tute but a small part, probably do not exceed $5 million, a small
sum compared with the $100 million of the FWQA in fiscal year
1970 for water pollution control and research alone.
Research concerned with ocean pollution and establishment of
-------
3370 LEGAL COMPILATION—GENERAL
controls on waste disposal is undertaken mainly through national
efforts, rather than by the intergovernmental agencies. Even na-
tional efforts are limited. Basic studies of the character of the
oceans and the seabeds have dominated U.S. oceanographic re-
search. There has been little or no emphasis on such questions as
the capacity of the oceans to absorb wastes.
Several countries have begun to search for solutions. Canada is
developing regulations governing the disposal of garbage and sew-
age from vessels. As now drafted, the regulations would apply to
non-pleasure craft within the territorial sea and inland waters of
Canada and would require new vessels in Canadian inland waters
to carry sewage treatment equipment. The regulation would also
prohibit discharge of garbage in all Canadian waters. Israeli sci-
entists have been studying pollution of the Mediterranean coast off
Tel Aviv since 1963. All new vessels constructed for the Argentine
Merchant Marine are required to meet international standards on
waste disposal, including holding tanks and oil-water separation
tanks. Argentinian law also requires all foreign ships to be simi-
larly equipped or access to Argentina ports will be denied. Similar
legislation is contemplated for pleasure craft.
NEED FOB INTERNATIONAL ACTION
International cooperation is essential to preservation of the
oceans. The quantities of wastes dumped in the oceans are increas-
ing rapidly in this country and will increase internationally as
other countries experience similar waste disposal pressures. Con-
sequently, control of ocean dumping necessitates action.
Recognition of the need for international cooperation is an ini-
tial step toward reaching worldwide agreements to control ocean
pollution. There will be obstacles. Nations' interests in the oceans
vary, as do their ideas on the controls that may be required.
RECOMMENDATIONS
The United States should assist in finding a solution to the
international problem of ocean dumping through a twofold ap-
proach. First, it must systematically attack its own problems. As a
significant polluter of the ocean and at the same time a technologi-
cally advanced nation, the United States must show its serious
intention to meet its responsibility as a matter of urgent national
priority. In demonstrating determination to preserve the marine
environment, the Nation will develop valuable information on
costs, effects, and technology associated with ocean dumping and
its alternatives.
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GUIDELINES AND REPORTS 3371
Second, the U.S. should take the initiative to achieve interna-
tional cooperation on ocean dumping. The Council on Environmen-
tal Quality recommends that at the outset the Federal Government
develop proposals to control ocean dumping for consideration at
international forums such as the 1972 U.N. Conference on the
Human Environment at Stockholm. U.S. initiative should suggest
a basis for international control over ocean dumping similar to the
policy recommended in this report. Provision should be made for:
• Cooperative research on the marine environment and on the
impacts of ocean dumping of materials;
• Development of a worldwide monitoring capability to provide
continuing information on the state of the world's marine envi-
ronment ;
• Development of technological and economic data on alternatives
to ocean disposal.
Domestic and international action is necessary if ocean dumping
is to be controlled. The United States must show its concern by
strong domestic action through implementation of recommended
policy. But unilateral action alone will not solve a global problem.
International controls, supported by global monitoring and coordi-
nated research, will be necessary to deal effectively and compre-
hensively with pollution caused by ocean dumping.
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3372 LEGAL COMPILATION—GENERAL
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GUIDELINES AND REPORTS 3373
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Marine Plankton. Journal of Limnology and Oceanography 4:472-478.
59. North, W. J. 1970. A Survey of Southern San Diego Bay. (mimeograph)
60. Parrish, L. P., and Mackenthun, K. M. 1968. San Diego Bay: An Evalua-
tion of the Benthic Environment. Department of the Interior, Federal
Water Pollution Control Administration.
61. Pearson, E. A., Storrs, P. N., and Selleck, R. E. 1970. A Comprehensive
Study of San Francisco Bay. University of California at Berkeley,
Sanitary Engineering Research Laboratory Rep. No. 67-5.
62. Pringle, B. H. 1970. Trace Metal Accumulation by Estuarine Molluscs.
(in press)
-------
GUIDELINES AND REPORTS 3375
63. Raymont, J. E. G., and Shields, J. 1962. Toxicity of Copper and
Chromium in the Marine Environment, pp. 275-290. In American
Public Health Association. Recommended Procedures for the Bacteriologi-
cal Examination of Sea Water and Shellfish.
64. Revelle, R., Wenk, E., Corino, E. R., and Ketchum, B. H. 1970. Ocean
Pollution by Hydrocarbons, (mimeograph)
65. Russell, P. E., and Kotin, P. 1956. Squamous Papilloma in the White
Croaker. Journal of the National Cancer Institute 18:857-860.
66. Smith, D. D., and Brown, R. P. 1970. An Appraisal of Oceanic Disposal
of Barge-Delivered Liquid and Solid Wastes from U.S. Coastal Cities.
Prepared by Dillingham Corporation for Department of Health, Educa-
tion, and Welfare, Bureau of Solid Waste Management under contract
No. PH 86-68-203. (mimeograph)
67. Tarzwell, C. M. 1970. Toxicity of Oil and Oil Dispersant Mixtures to
Aquatic Life. Presented at the International Seminar on Water Pollu-
tion by Oil. (mimeograph)
68. Templeton, W., Nakatani, R., and Held, E. 1969. Radiation Effects.
In National Research Council-National Academy of Sciences. 1970.
Radioactivity in the Marine Environment, (mimeograph)
69. Tutsumoto, M., and Patterson, C. 1963. The Concentration of Common
Lead in Sea Water, pp. 74-89. In Geiss, J. and Goldberg, E. (eds.)
Earth Science and Meteorites.
70. U.S. Atomic Energy Commission. 1970. Information provided to the
Council.
71. Water Resources Engineers, Inc. 1970. Ecologic Responses to Ocean
Waste Discharge: Results from San Diego's Monitoring Program.
Prepared for California State Water Resources Control Board and
San Diego Regional Water Quality Control Board.
72. Young, P. H. 1970. Some Effects of Sewer Effluent on Marine Life.
California Fish and Game 50:33-41.
Appendix A
THE PRESIDENT'S MESSAGE ON WASTE DISPOSAL
To the Congress of the United States:
The first of the Great Lakes to be discovered by the seventeenth century
French explorers was Lake Huron. So amazed were these brave men by the
extent and beauty of that lake, they named it "The Sweet Sea".
Today there are enormous sections of the Great Lakes (including almost all
of Lake Erie) that make such a title ironic. The by-products of modern
technology and large population increases have polluted the lakes to a degree
inconceivable to the world of the seventeenth century explorers.
In order to contribute to the restoration of these magnificent waters, this
Administration will transmit legislation to the Congress which would stop
the dumping of polluted dredged spoil into the Great Lakes. This bill would:
—Discontinue disposal of polluted dredged materials into the Great Lakes
by the Corps of Engineers and private interests as soon as land disposal
sites are available.
—Require the disposal of polluted dredged spoil in containment areas
located at sites established by the Corps of Engineers and approved by the
Secretary of the Interior.
—Require States and other non-Federal interests to provide one-half the
-------
3376 LEGAL COMPILATION—GENERAL
cost of constructing containment areas and also provide needed lands and
other rights.
—Require the Secretary of the Army, after one year, to suspend dredging
if local interests were not making reasonable progress in attaining disposal
sites.
I am directing the Secretary of the Army to make periodic reports of
progress under this program to the Chairman of the Council on Environ-
mental Quality.
This bill represents a major step forward in cleaning1 up the Great Lakes.
On the other hand, it underlines the need to begin the task of dealing with
the broader problem of dumping in the oceans.
About 48 million tons of dredging, sludge and other materials are annually
dumped off the coastlands of the United States. In the New York area alone,
the amount of annual dumping would cover all of Manhattan Island to a
depth of one foot in two years. Disposal problems of municipalities are
becoming worse with incrensed population, higher per capita wastes, and
limited disposal sites.
We are only beginning to find out the ecological effects of ocean dumping
and current disposal technology is not adequate to handle wastes of the
volume now being produced. Comprehensive new approaches are necessary
if we are to manage this problem expeditiously and wisely.
I have therefore directed the Chairman of the Council on Environmental
Quality to work with the Departments of the Interior, the Army, other
Federal agencies, and State and local governments on a comprehensive
study of ocean dumping to be submitted to me by September 1, 1970. That
study will recommend further research needs and appropriate legislation
and administrative actions.
Specifically, it will study the following areas:
—Effects of ocean dumping on the environment, including rates of spread
and decomposition of the waste materials, effects of animal and plant life,
and long-term ecological impacts.
—Adequacy of all existing legislative authorities to control ocean dumping,
with recommendations for changes where needed.
—Amounts and areas of dumping of toxic wastes and their effects on the
marine environment.
—Availability of suitable sites for disposal on land.
—Alternative methods of disposal such as incineration and re-use.
—Ideas such as creation of artificial islands, incineration at sea, trans-
porting material to fill in strip mines or to create artificial mountains, and
baling wastes for possible safe disposal in the oceans.
—The institutional problems in controlling ocean dumping.
Once this study is completed, we will be able to take action on the problem
of ocean dumping.
The legislation being transmitted today would control dumping in the
Great Lakes. We must now direct our attention to ocean dumping or we may
court the same ecological damages that we have inflicted on our lands and
inland waters.
RICHARD NIXON.
The White House,
April 15, 1970
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GUIDELINES AND REPORTS 3377
4.4b "Toxic Substances", Report by the Council on Environ-
mental Quality, April 1971
PREFACE
In the spring of 1970, shortly after the Council on Environmen-
tal Quality came into being, we turned to the question of metals
and synthetic organic chemicals which might endanger human
health and the environment. It seemed that new controls were
probably necessary to deal with the problems raised by such sub-
stances, but the scope of the problem, the lack of a central source
of knowledge to deal with questions raised, and the great uncer-
tainty about a number of key aspects of the whole area of toxic
substances led us to the conclusion that extensive staff work would
be necessary prior to a decision about the desirability or content
of possible legislation. This report is the result of that work.
The data collection, analysis, and much of the writing of the
report were substantially complete by December 1970. However,
the process of formulating the President's legislative program
overtook the task of finishing the report. Thus the proposed Toxic
Substances Control Act of 1971 became public before the study
upon which the legislation was based.
The Council is grateful to the many individuals who contributed
to preparation of this study. We are particularly indebted to Dr.
John Buckley and Dr. Edward Burger of the President's Office of
Science and Technology, Dr. Henry Kissman of the National Li-
brary of Medicine, and Dr. Douglas Worf and Dr. Delbert Earth
of the Environmental Protection Agency. We hope that this report
will help to shed light on the President's proposed legislation and
that it will contribute to understanding of a major environmental
problem.
RUSSELL E. TRAIN, Chairman
ROBERT CAHN
GORDON J. MACDONALD
FINDINGS AND RECOMMENDATIONS
The Council on Environmental Quality has examined the prob-
lems associated with toxic substances in the environment and has
reached the following conclusions:
Toxic substances are entering the environment
About 2 million chemical compounds are known, and several
thousand new chemicals are discovered each year. Most new com-
-------
3378 LEGAL COMPILATION—GENERAL
pounds are laboratory curiosities that will never be produced com-
mercially. However, several hundred of these new chemicals are
introduced into commercial use annually. Of particular concern
because of their rapidly increasing number and use are the metals,
metallic compounds, and synthetic organic compounds.
U.S. consumption of metals with known toxic effects has in-
creased greatly in the last 20 years. The data on use underestimate
the increasing pervasiveness of metals in our environment because
many new metallic compounds are being formulated and used in
an ever widening variety of new products.
Similarly, use of synthetic organic chemicals is growing rapidly.
Over 9,000 synthetic compounds are now in commercial use in
amounts of over 1,000 pounds each per year. In 1968, they totaled
nearly 120 billion pounds—a 15 percent increase over 1967 and a
161 percent increase over 10 years ago.
Although many of these substances are not toxic, the sheer
number of them, their increasing diversity and use, and the envi-
ronmental problems already encountered from some indicate the
existence of a problem.
These substances enter man's environment—and man himself
—through complex and interrelated pathways. Present in air,
water, soil, consumer products, and food, they pervade our envi-
ronment. They often become concentrated through the food chain
—with minute quantities being magnified thousands of times as
they are consumed by higher forms of life. Increasingly, all forms
of life are being exposed to potentially toxic substances.
These substances can have severe effects
The environmental effects of most of the substances discussed in
this report are not well understood. Testing has largely been con-
fined to their acute effects, and knowledge of the chronic, long-
term effects, such as genetic mutation, is inadequate. Although far
from complete, available data indicate the potential or actual dan-
ger of a number of these substances.
Many serious effects, including those resulting in cancer (car-
cinogenicity), genetic mutations which cause permanent and
transmissible change in the genes of offspring from those of the
parent (mutagenicity), and production of physical or biochemical
defects in an offspring (teratogenicity) can occur from metals,
their compounds, and synthetic organic compounds. In general, we
do not know which chemicals cause such effects or the levels that a
given chemical must reach before the effects occur.
The problem is complicated by the chemical changes which may
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GUIDELINES AND REPORTS 3379
occur once toxic substances enter the environment. They can be-
come more toxic through modification in the ecosystem or as a
result of synergistic actions with other substances.
Wildlife and fish populations are also being exposed to these
substances, and some species have already been severely damaged
by such exposure.
Existing legal authorities are inadequate
Existing Federal Government controls over the introduction of
toxic substances into the environment are of two types. The first is
control over the initial production of a substance and its distribu-
tion. For example, under the Federal Insecticide, Fungicide, and
Rodenticide Act, a manufacturer must register a pesticide with
the Environmental Protection Agency (EPA) before it can be
introduced in interstate commerce. EPA can prohibit distribution
of a pesticide or require labeling of acceptable uses. This type of
control, exercised at the point of manufacture, is also applied to
drugs and food additives. Although this control technique can be
very effective, current authorities cover only a small portion of the
total number of potentially toxic substances and do not deal with
all uses of a substance which may produce toxic effects. Most of
the substances mentioned in this report are not subject to the legal
controls necessary to protect man from the toxic effects noted.
The second type of control is media oriented and thus is directed
at air and water pollution from various sources. Federal authority
derives primarily from the Clean Air Act and the Federal Water
Pollution Control Act. Under the Federal Water Pollution Control
Act, the Federal Government, in cooperation with the States, sets
standards for the amounts of particular substances allowable in
the water. Under the Clean Air Act, the Federal Government sets
national air quality standards, allowing the States to set more
stringent standards. Enforcement of standards depends on limit-
ing the emissions of a substance from a given source.
In theory, this type of authority can be used to control the
substances discussed in this report, but there are several limita-
tions to the effective application of such controls. These media-
based authorities are mainly concerned with pollutants which
occur in large quantities. Controlling minute quantities of danger-
ous substances is difficult with this type of authority, in part
because of the difficulty of detecting their presence in air or water.
Control is also difficult because many toxic substances enter the
environment through disposal of consumer products. If a product
is disposed of by flushing into a municipal sewer line or by burn-
-------
3380 LEGAL COMPILATION—GENERAL
ing at an incinerator, it is almost impossible for the media-ori-
ented controls to deal effectively with the toxic decomposition
products which might result. For example, if there were a need to
control a substance contained in a household detergent, under the
media authorities the government could try to limit the amount of
the substance emitted from municipal waste treatment plants. But
such a limit would be effective only if the substance could be
removed by existing treatment methods, and many toxic sub-
stances cannot be so removed.
Most toxic substances are not exclusively air or water pollutants
but can be found in varying quantities in air, water, soil, food, and
industrial and consumer products. The multiplicity of ways by
which man can be exposed to these substances makes it difficult
for the media-oriented authorities to consider the total exposure of
an individual to a given substance, a consideration necessary for
the establishment of adequate environmental standards. Also, in
the past no agency has considered itself completely responsible for
all such substances in all media. The likely result is what hap-
pened in the case of mercury: Available knowledge on adverse
effects was ignored and new data were not collected.
New legal authority is required
The Council's study indicates the high-priority need for a pro-
gram of testing and control of toxic substances. Our awareness of
environmental threats, our ability to screen and test substances
for adverse effects, and our capability to monitor and predict,
although inadequate, are sufficiently developed that we need no
longer remain in a purely reactive posture with respect to toxic
substances. We should no longer be limited to repairing the dam-
age after it has been done; nor should we continue to allow the
entire population or the entire environment to be used as a labora-
tory.
To assure this protection without handicapping desirable tech-
nological innovation or hindering interstate commerce, the Council
on Environmental Quality recommended new legal authority.
In February 1971, the President submitted to the Congress a
bill based on these recommendations. The Toxic Substances Con-
trol Act of 1971 calls for several major, new authorities:
• The Administrator of the Environmental Protection Agency
would be empowered to restrict or prohibit the use or distribu-
tion of a chemical substance if such restriction were necessary
to protect health or the environment. In imposing such a restric-
tion, the Administrator would be required to consider not only
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GUIDELINES AND REPORTS 3381
the adverse effects of the substance but also the benefits to be
derived from its use.
• If the Administrator believed that a substance were creating an
imminent hazard, he could ask the courts to restrain use or
distribution of the substance immediately.
• The Administrator would be authorized to issue standards for
tests to be performed and for results to be achieved from such
tests for various classes and uses of new substances. A new
substance (excluding- products covered by other regulatory au-
thority) could be marketed only after it met these standards.
• The Administrator could request information from the manu-
facturers on potentially toxic substances—names, chemical com-
position, production level, uses, and results of tests conducted on
their effects.
• The Council on Environmental Quality would be charged with
coordinating1 efforts to establish a uniform system for classify-
ing and handling information on chemical substances.
The proposed legislation also authorizes the Administrator of
EPA to carry on needed research on toxic substances and to de-
velop an information system and prediction capability to deal
effectively with these materials.
Such an information system would focus on the quantity, distri-
bution, and flow of a particular substance throughout the environ-
ment. Focusing on the pollutant rather than on the particular
medium being polluted has two major advantages: First, a poten-
tial problem can often be rapidly identified, perhaps before dam-
age to health or the environment has occurred. Second, this ap-
proach can suggest the most efficient means of controlling a prob-
lem. If the analysis indicates that most of a substance is entering
the environment through water, then the most efficient control
may be through water pollution control laws. If an identified in-
dustrial or consumer use of a substance is responsible for the
major amount of environmental contamination, then control of the
distribution and use of the substance may be the most efficient
strategy. In short, pollutant-focused monitoring is capable of giv-
ing the decision-maker the overall view necessary for making key
enforcement decisions.
For the system of testing, monitoring, and control authorized in
the proposed legislation to be most effective, the scientific basis of
much of our research must be greatly improved. First, a broader
view of the problem must be taken. In terms of human health,
total exposure of a human being to a given substance from all
-------
3382 LEGAL COMPILATION—GENERAL
parts of his environment—air, water, and food—must be consid-
ered, and the interactions of these substances both within and
outside the body must be evaluated. Similar consideration must be
given to other living organisms.
Second, testing substances for their effects on man and the
environment must be expanded, and the scientific basis for inter-
preting such tests must be improved. Current scientific knowledge
about data gained from experiments with animals is often inade-
quate to allow reliable interpretation of the data in terms of possi-
ble effects on man.
Much effort has already been devoted to toxic substances moni-
toring and research. Much more will be needed. The proposed
legislation would improve the framework for such efforts, but by
itself it would not bring them to fruition. The resources of the
Environmental Protection Agency, the Department of Health, Ed-
ucation, and Welfare, industry, universities, and many others both
within and outside the Government will be necessary to achieve a
truly adequate system for assessing the hazards of toxic sub-
stances and for preventing damage from them.
SUMMARY
Recent incidents of mercury and other contamination of the
environment and the diversity and quantities of toxic and poten-
tially toxic substances entering the environment indicate the ex-
tent of this growing national problem. Action is needed to prevent
damage to man's health and the environment. New regulatory
authority, improved research, and better monitoring systems have
been recommended and must be implemented now if protection is
to be provided.
The approach called for in the Toxic Substances Control Act is
a new way of looking at environmental problems. Rather than
dealing with pollutants as they appear in air, in water, and on
land, it represents a systematic and comprehensive approach to
the problem. It relies on understanding the flow of potentially
toxic substances throughout the entire range of activity—from
extraction to production to consumer use and to disposal. Only
through such a comprehensive approach can we provide protection
to man and his environment. In the last few years, we have identi-
fied the enormity of the problem; we have developed the institu-
tional capability through the creation of EPA to look comprehen-
sively at pollution of the environment. The time has come for an
action program to control the use of toxic substances.
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GUIDELINES AND REPORTS 3383
CONTENTS
Page
Preface iii
Findings and Recommendations iv
Chapter I. Scope and Magnitude of the Problem 1
Metals and Their Compounds 1
Synthetic Organic Compounds 3
Summary 5
Chapter II. Environmental Pathways and Effects 6
Pathways of Environmental Contamination 6
Interactions Within the Environment 8
Effects of Toxic Substances 9
Metals and Their Compounds 10
Lead 10
Cadmium 11
Mercury 11
Vanadium 12
Synthetic Organic Chemicals 12
NTA (Nitrilotriacetic Acid) 13
ONCB (Orthonitrochlorobenzene) 13
PCB's (Polychlorinated Biphenyls) 13
Summary 14
Chapter III. Technological and Legal Controls 15
Technological Methods of Control 15
Product Control 15
Effluent Control 16
Existing Legal Controls 17
Product Control 17
Effluent Control 18
Toxic Substances 19
Inadequacy of Authorities 20
A New System 21
Summary 22
References 23
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3384 LEGAL COMPILATION—GENERAL
Chapter I
SCOPE AND MAGNITUDE OF THE PROBLEM
Until recently, the public and the Government have been con-
cerned with pollutants which appear primarily in one medium,
usually air or water. These pollutants—such as suspended solids,
particulates, and sulfur oxides—generally occur in large, measura-
ble quantities. They can be readily identified with existing moni-
toring techniques, and legal authority for their control is availa-
ble. Controlling their levels in the media in which they primarily
occur protects human health and the environment. However, there
are substances, such as radioactive materials and pesticides, for
which research, monitoring, and control based on media are not
adequate. In the case of radioactive materials and pesticides,
needed regulatory authority and control procedures have been de-
veloped.
There are several types of substances for which no adequate
control authority exists and for which a total environmental ap-
proach is lacking. Existing authority based on media control, al-
though sometimes applicable, is not adequate to deal with such
substances because they are present not only in our air, water, and
soil but in all the products that we consume and use in our every-
day lives. Further, control of a substance in one medium often
shifts pollution to another medium. For the protection of man and
his environment, all sources of exposure must be considered com-
prehensively. Chapter I examines major examples of the toxic
chemical substances for which this comprehensive approach is
needed and indicates the extent of the problem presented by them.
Everything in our environment is composed of chemical sub-
stances, and most of these pose minimal danger to man or the
environment. However, some pose a serious danger—particularly
those produced by man's activities. Those chemicals which damage
the environment are usually called pollutants. Not all pollutants
are of concern as toxic substances. Most common air and water
pollutants, such as particulates and solids, are not included in the
Council study because existing regulatory authority and control
programs adequately deal with them. For this reason, radioactive
substances, drugs, food additives, and pesticides are also excluded.
Many other chemical substances are of concern here because of
their potentially toxic effects at extremely low levels of exposure
and their presence in many media. Rather than attempt to be
exhaustive given our current incomplete knowledge, this report
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GUIDELINES AND REPORTS 3385
indicates the problem by using examples of what appear to be the
most pressing areas of concern.
Selected metals, their compounds, and certain synthetic organic
chemicals are perhaps the best examples of toxic substances which
can adversely affect man and his environment. They enter the
environment in a variety of ways, through air and water and
through food and other goods. In this chapter, the magnitude and
pervasiveness of the problem are indicated by the quantities of
potentially toxic substances produced and the variety of products
in which they are found. The pathways by which these substances
enter the environment and their potential for adverse effects are
outlined in Chapter II. Chapter III describes existing and pro-
posed control measures for such substances.
METALS AND THEIR COMPOUNDS
Singly or in combination, the 105 known elements from the
basis of all matter. Of these, 77 are metals. Simply stated, metals
are elements generally characterized by ductility, malleability, lus-
ter, and conductance of heat and electricity. Of the 77 elemental
metals, 52 can be considered "economic metals," that is, they are
in sufficient industrial and commercial usage to warrant collection
of statistical production data. The quantities used vary from mil-
lions of tons for iron and manganese to only thousands of ounces
for iridium. (44)
Many, perhaps most, metals are prerequisite to life, usually in
trace amounts. However, some metals and/or their compounds can
and do adversely affect human health if ingested or absorbed in
excessive quantities. A necessity of life at certain levels, they can
be lethal at increased levels.
Serious adverse environmental and/or health effects, actual and
potential, have been observed or indicated for roughly one-fourth
of the metals in common economic usage today. Many of the trou-
blesome metals are the so-called "heavy metals," of which lead and
mercury are the most common examples. Table 1 shows the esti-
mated U.S. consumption of selected metals for which adverse
human effects have been documented. Not included in these esti-
mates are data for production and release of metals from proc-
esses other than those used to produce the metals for consumption.
For example, Table 1 does not include the amounts of vanadium
released to the atmosphere from oil combustion or of mercury
released from coal combustion.
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3386 LEGAL COMPILATION— GENERAL
TABLE l.-ESTIMATED U.S. CONSUMPTION OF SELECTED METALS, 1948 AND 1968 (44, 45)
Metal
Arsenic (AS'O1) .
Barium (barite) .
Beryllium (beryl)
Cadmium. .
Chromium (chromite)
Copper.. ....
Lead
Manganese (ores, 35% or more Mn)..
Mercury.. . .....
Nickel
Selenium
Silver *
Vanadium
Zinc
Total estimated Percent
consumption ' (in tons) increase
1948
24,000
894,309
1,433
3,909
875,033
.. 1,214,000
1,133,895
1,538,398
1,758
93,558
419
. . 3,611
>N.A.
. =1,200,000
1968 4
-25,000
1,590,000
8,719
6,664
1,316,000
1,576,000
1,328,790
2,228,412
2,866
159,306
762
4,983
5,495
1,728,400
18-1968
M4
78
507
70
50
30
17
45
63
70
82
38
44
1 Includes stacks released to the open market by the Federal Government and imports; does not include exports.
! Consumption by industry and arts; monetary consumption not included because much was stockpiled.
< Figures not available between 1946 and 1955; consumption in 1946 was about 748 tons, in 1955 about 1,700 tons.
After originally extracting metals from the earth, man rein-
troduces them into the environment directly in elemental form or
in a wide variety of compounds. The compounds may have quite
different effects from their elemental forms ; some metals are more
toxic as compounds.
The compounds of metals appear in larger number than do the
metals themselves as intermediate and consumer products. For
example, at least 40 lead compounds and more than 45 cadmium
compounds are currently in commercial use. (3, 23) The total
number of variants for just two of these metals is thus more than
five times the total number of metals for which adverse effects
have been identified. Most of the other metals are also used in a
wide array of compounds.
Numerous manufacturing processes and products employ metals
and their compounds. Arsenic, for example, is used in the manu-
facture of glass, pigments, textiles, paper, metal adhesives, ceram-
ics, linoleum, and mirrors. (39) Its compounds are used in wood
preservatives and paints, insecticides and herbicides, and electri-
cal semiconductors. Beryllium is used in several of the above man-
ufacturing operations as well as in electroplating and as a catalyst
in organic chemical manufacture. Barium is used in paper manu-
facturing, fabric printing and dyeing, embalming, synthetic rub-
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GUIDELINES AND REPORTS 3387
ber production, and animal and vegetable oil refining. It is a com-
ponent of fireproofing compounds, x-ray screens, water softening
chemicals, enamels, lubricants, and photographic supplies. (27)
These products exemplify the diversity of uses of metals and the
almost unending list of products in which they may be present.
When metals are used in the manufacture of products, effluents
from the operations often contain metallic compounds, which may
contaminate the environment. When metals are present in final
products, direct human contact or environmental exposure is pos-
sible during use or after disposal.
The number of metals and related compounds for which serious
environmental concerns arise will probably increase as technology
continues to find new uses for existing metals and metallic com-
pounds. The increasing consumption of metals is shown in Table 1.
New products will require the development of new metal com-
pounds and possibly the expanded use of metals which now have
little, if any, commercial use. Iridium, once only a laboratory curi-
osity, is now used to make jeweler's platinum and to manufacture
electric instruments, penpoints, surgical instruments, and needles.
(40) Beryllium has been used experimentally in rocket fuels.
These new variations and applications are certain to increase the
potential exposure of man to metals.
SYNTHETIC ORGANIC COMPOUNDS
The Chemical Abstracts Service Registry Number System has
registered some 1.8 million chemical compounds, and the list is
growing by the addition of 250,000 chemicals each year. (2) Ap-
proximately 300 to 500 new chemical compounds are introduced
annually into commercial use. (42, 43) Of those which are or may
be used commercially, synthetic (manmade) organic chemicals are
of special concern because frequently they are alien to the natural
environment, and in some instances their modification, redistribu-
tion, or persistence have already had some dangerous effects.
Approximately 9,000 synthetic organic compounds were in com-
mercial use by 1968. (47) As shown in Table 2, production is
increasing rapidly, from over 103 billion pounds in 1967 to nearly
120 billion pounds in 1968, an increase of about 15 percent. Com-
pared to the 1957-1959 annual average of 46 billion pounds, pro-
duction increased 161 percent in approximately 10 years. (47)
With changes in industrial needs and technological knowledge,
new and more complex compounds with new and different uses are
constantly being developed.
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3388 LEGAL COMPILATION—GENERAL
TABLE 2.—U.S. PRODUCTION OF SYNTHETIC ORGANIC CHEMICALS, 1968 » (47)
Chemical
Intermediates. .
Colorants:
Dyes
Pigments
flavors and perfumes
Plastic products:
Plastics and resins
Plasticizers
Rubber products:
Processing chemicals
Elastomers
Surface active agents
Miscellaneous
Total
1968 Production
(in millions
of pounds)
25,014
226
54
117
16,360
1,331
313
4,268
3,739
67,525
. . 118,947
Percent
increase
over 1967
20.3
9.7
1.9
4 5
13.6
5.4
18.6
11.6
7.5
13.1
15
1 Includes data on production measured at several successive steps in the manufacturing process and therefore teflect:
some duplication.
Public disclosure is not permitted by the data-collecting agency when only one manufacturer produces a chemical.
When production of an item was below 1,000 pounds, or sales below $1,000, a product is not included Further, medicinal;
and pesticides are not included.
The synthetic organic chemicals shown by classes in Table 2 are
obtained from coal, crude petroleum, natural gas, wood, vegetable
oils, fats, resin, and grains. Products are formed by such processes
as thermal decomposition, synthesis, catalytic cracking, distilla-
tion, absorption, or fermentation. Intermediate products are some-
times consumed directly or may be further processed. The cate-
gory of intermediates in Table 2 refers to those that are consumed
directly.
Dyes and pigments are organic chemicals used to impart color
to other materials. Approximately two-thirds of the over 1,000
synthetic dyes consumed in the United States per year is used in
coloring natural and synthetic fibers or fabrics, and about one-
sixth is used in coloring paper. (48) The remainder is used chiefly
in the production of organic pigments and in dyeing plastics and
leather. Pigments are used in paints and related products, in
printing inks, and in plastics and resin materials.
In some cases, pigments contain metals in addition to their
organic constituents. Dyes and pigments, a part of many everyday
products, find their way into the environment from manufacturing
operations as well as from ultimate disposal of consumer products.
Plastics and associated resins and additives, such as plasticizers,
are another major type of synthetic organic chemical. Plasticizers
are organic chemicals that are added to synthetic plastics and
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GUIDELINES AND REPORTS 3389
resin materials to improve workability during fabrication; to ex-
tend or modify the natural properties of these resins; or to de-
velop new, improved properties not present in the original resins.
They are present in plastic products in concentrations ranging
from less than 5 to as high as 50 percent. Polychlorinated biphen-
yls (PCB's), a class of compounds formerly used in small amounts
as plasticizers, are of considerable environmental concern.
Total U.S. production of plastic products in 1968 was 17.7 bil-
lion pounds, 103 percent more than in 1962. (47, 49) By 1980,
total plastics production is expected to be well over 50 billion
pounds, with production growth at about 10 percent per year
through the coming decade. (41)
Plastics are used in ever increasing quantities to replace other
materials. Packaging, previously dominated by glass, paper, and
metals, now employs large quantities of plastics. In some cases
plastics have replaced the traditional packaging materials. When
used with other materials, plastics have improved such features as
strength and appearance.
Polyethylene, polyvinyl chloride, polystyrene, and ABS (acrylo-
nitrile-butadiene-styrene) resins were first used as packaging in
the 1950's. Volume usage developed about 1960. By 1966, 2.2 bil-
lion pounds of plastics were used in packaging, and by 1976, the
figure is expected to reach almost 6.3 billion pounds, a 185 percent
increase. (8) The use of plastics is also increasing dramatically in
other areas. Relatively new is use in automobiles, shoes, handbags,
coats, furniture, dishes, and insulation.
Rubber products can be manufactured from synthetic organic
chemicals (elastomers) which are formulated with properties sim-
ilar to natural rubber. Products made from natural rubber may
contain synthetic organic chemical additives. Hence, these types of
synthetic organics are commonly found in toys, tires, rain coats
and shoes, carpet backing, garden equipment, tools, and numerous
other products.
Surface-active agents, another category of synthetic organic
chemicals, reduce the surface tension of water or other solvents
and are used chiefly in detergents, dispersing agents, emulsifiers,
foaming agents, and wetting agents. A major portion—about 550
million pounds—is used in detergents for both household and in-
dustrial use. (36) The remainder is employed in processing tex-
tiles and leather and in the manufacture of agricultural sprays,
cosmetics, elastomers, lubricants, paints, Pharmaceuticals, and
many other products.
Organic chemicals can be tailored in structure and properties to
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3390 LEGAL COMPILATION—GENERAL
fit almost any imaginable need. During 1968, production of chemi-
cals in the miscellaneous category shown in Table 2 totaled 67,525
million pounds, over half of all synthetic organic chemicals pro-
duced. Examples of chemicals in this category are some of the
halogenated hydrocarbons, which are used as solvents in dry
cleaning and refrigerants, and aerosol propellants for hair sprays,
paints, and deodorants. Alcohols, nitrogen compounds, acids and
anhydrides, aldehydes, and ketones are also included in this cate-
gory.
SUMMARY
Man's physical environment is now exposed to a myriad of
potentially toxic substances. These substances are the constituents
of nearly everything that man uses. In trace amounts in the
human body, some are essential to life; yet in larger quantities
these same substances may be toxic. The balance between these
two extremes is often unknown. And because of man's own activi-
ties, other substances not formerly present are now found in the
human body.
The uses of chemical substances are growing rapidly, many new
substances are being formulated, and new commercial applications
are being found almost daily. As Chapter II indicates, many of
this growing array of substances have already been found to have
adverse effects on man and his environment.
Chapter II
ENVIRONMENTAL PATHWAYS AND EFFECTS
Chapter I discusses toxic substances, their quantities, and the
diversity of products in which they are present. This chapter
examines how these substances enter the environment, move
within the system, and ultimately affect man and other organisms.
PATHWAYS OF ENVIRONMENTAL CONTAMINATION
Figure 1 is a simplified diagram of how potentially toxic materi-
als reach man and his environment. It indicates several key proc-
esses: First, materials are extracted from the environment in
crude form and are successively refined, processed, and manufac-
tured into more diverse and complex forms ("Manufacture" in
Figure 1). These diverse processes may produce air and water-
borne wastes to which man may be exposed at each intermediate
step. The wastes can contain not only the original substance but
also considerably modified and perhaps more toxic substances. The
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GUIDELINES AND REPORTS 3391
end products are consumed by man as food or are used as durable
and nondurable goods. This consumption and use can result in
man's further exposure to a substance.
Consumption, however, is not the end of most products, because
after they have served their purpose, they must be disposed of.
Except for direct recycling, disposal methods return material to
the environment—but almost always to a different place and often
in different chemical form: Thus, the disposal process alters the
patterns of distribution and concentration of substances which
naturally occur in the environment and may produce new chemical
forms which may be more dangerous to man than the original
substance. As a result of disposal processes, assimilation by bio-
logical organisms may be facilitated, interaction with other chemi-
cal substances may occur, and inherent toxicity may be enhanced.
These possibilities are suggested by "Interactions" in Figure 1.
There is a natural background of metal substances and com-
pounds in the environment to which biological systems generally
have adapted over the millenia. It is the redistribution and chemi-
cal alteration resulting from man's activities when he engages in
economic exploitation and disposal which are considered here. Al-
though some substances introduced by man into the environment
may represent a net benefit, for example, small amounts of fluor-
ide in water to reduce tooth decay, this report is concerned with
possible adverse effects.
Both metals and synthetic organic chemicals are potential envi-
ronmental hazards. However, significant differences exist in the
ways in which the two types of substances enter the environment
and affect man.
Metals are recovered from ore deposits either directly or as
byproducts in the course of refining other metals. Pure cadmium,
for example, is not found uncombined in nature in commercially
usable quantities. Commercial quantities are obtained as a byprod-
uct of smelting zinc. (3)
During the mining and refining processes, dusts and gases enter
the atmosphere. Metallic salts formed during these recovery and
refining processes can escape as waste products into surface and
ground water. Undesirable concentrations of metals and metallic
salts in the environment-have been reported from such sources in
a number of cases, including:
• High concentrations of cadmium salts in Missouri mine waters
—in one spring the concentration was 1,000 milligrams per liter
(25)
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3392 LEGAL COMPILATION—GENERAL
• High atmospheric vanadium concentrations near mining and re-
fining operations (4)
• Toxic levels of arsenic trioxide emissions from a gold mine and
smelter in the western United States. (39)
Almost all synthetic organic compounds are manufactured from
crude petroleum, natural gas, and coal rather than from raw ores.
Although extraction and transportation of the raw materials cause
some environmental damage, the more complex synthetic com-
pounds produced by manufacturing operations are often the most
toxic.
Waste effluents often result from the manufacture of synthetic
organic chemicals. These effluents may be the compounds which
remain unreacted in the production process or the unwanted by-
products of the operation. Sludges, gases, and liquid effluents of
varying chemical complexity and toxicity may be produced. For
example, thermal cracking of crude petroleum to obtain gasoline
or fuel oils can yield phenols, sulfides, and other organic wastes.
Ammonia, mercaptans, and waste oil effluents result when re-
forming is used to produce benzene, toluene, and other products.
Finally, the diverse end products reach man and are used. In the
course of use, some toxic materials may inadvertently be intro-
duced into the environment. One example is the unburned or par-
tially burned hydrocarbons from gasoline. Eventually, most un-
used residues must be disposed of, and they enter the environment
through sewage systems, incineration, or landfill.
Most sewage treatment plants are not capable of removing
many of the toxic substances found in waste water. Secondary
sewage treatment is capable of recoving a large portion of the
metals, but many synthetic organic chemicals are unaffected by
the biological treatment processes employed by municipalities.
Even if the toxic substances are removed by treatment, their pres-
ence in sewage sludge may still pose a problem.
About 10 percent of all municipal solid wastes are incinerated.
During combustion, organic and metallic materials are converted
into a multitude of compounds. Some are partially oxidized or
reduced and their structure and properties substantially changed.
Some remain unaltered chemically, changing only physically, as
from a solid to a gas. Some gaseous or particulate products of
combustion are drawn off through the stacks; those that are not
removed by stack gas cleaning reach the atmosphere. The solid
residue from combustion is often quenched with water, which then
enters the general environment. Eventually most airborne emis-
sions return to earth and are deposited on land and in water.
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GUIDELINES AND REPORTS 3393
Materials disposed of at some landfills also can present a prob-
lem. At landfills the volume of wastes is frequently reduced by
open burning. The resultant particulate and gaseous emissions can
cause the same pollution problems encountered in incineration.
Even when the wastes are buried, leaching of toxic metals or
organic compounds is possible, causing contamination of ground
or surface water. For example, the plasticizers in plastics may be
leached and thus contaminate ground water supplies. (H) Re-
gardless of the pollution which may result, disposal of metals and
some chemicals in landfills represents a waste of valuable re-
sources which could be recycled.
Another possible method of disposal is to dump wastes in the
ocean. The Council issued a previous report on this subject and
concluded that available methods of land disposal are preferable to
ocean dumping. (6)
INTERACTIONS WITHIN THE ENVIRONMENT
After substances enter the environment, they may be diluted or
concentrated by physical forces, and they may undergo chemical
changes, including combination with other chemicals, that affect
their toxicity. The substances may be picked up by living organ-
isms which may further change and either store or eliminate
them.
The results of the interaction between living organisms and
chemical substances are often unpredictable, but such interaction
may produce materials that are more dangerous than the initial
pollutants. One example is inorganic mercury, which was thought
to settle safely into the bottom sediments when discharged into
water. Anaerobic bacteria are now known to convert inorganic
mercury into very toxic and soluble organic mercury compounds,
such as methylmercury, which pass through the food chain by
aquatic algae and by fish, eventually reaching man. (37)
DDT, another example, is nearly insoluble in water. It occurs in
high concentrations among some fish-eating birds as a result of
two factors: DDT's solubility in fats is much higher than in
water, and plankton, shellfish, and fish generally pass successively
higher concentrations of DDT on to the organism next in the food
chain. Polychlorinated biphenyls (PCB's), which are chemically
similar to DDT, have been found in similar association with ma-
rine food chains. Oysters exposed to one type of PCB for 96 hours
accumulated the substance to a level 3,300 times that of the am-
bient water. (9)
Synergism is another complicating interaction. Two or more
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3394 LEGAL COMPILATION—GENERAL
compounds acting together may have an effect on organisms
greater than the sum of their separate effects. For example, the
toxic effects of mercuric salts are accentuated by the presence of
trace amounts of copper. (46). Cadmium acts as a synergist with
zinc and cyanide in the aquatic environment to increase toxicity.
(20, 25, 32) Conversely^ sometimes the presence of one substance
lessens the effect of another substance on an organism. Arsenic, a
toxic substance itself, counteracts the toxicity of selenium and has
been added to poultry and cattle feed in areas where animal feeds
are naturally high in selenium. (38)
EFFECTS OF TOXIC SUBSTANCES
As noted earlier, metals, unlike synthetic organic compounds,
have always been present in the environment, and living organ-
isms—including man—have evolved in their presence. Blood and
body tissues are composed of a complex mixture of elemental sub-
stances, including the metals. Some metals are essential to life at
low concentrations but are toxic at higher concentrations. Fur-
ther, the form in which the metal occurs—as a pure metal, an
inorganic metallic compound, or an organic metallic compound—
strongly influences its toxicity. Thus the danger of metals to man
depends on their concentration and chemical form.
Most synthetic organic substances are not essential to life,
though many share with metals the characteristic of toxicity. As
with metals, the concentration and type of exposure to a particu-
lar synthetic organic substance are key factors in determining its
effects.
The total effect of all toxic substances on a single species, say,
man, is impossible to quantify with accuracy because of our lack
of knowledge about the effects of toxic substances. Although many
substances in the environment can cause death or injury if man is
exposed to them in sufficiently high concentrations, the effects of
long-term exposure to low levels of such substances, singly or in
combination, are generally unknown. A standard text on the dan-
gers of commercial products rates the toxicity of more than 1,000
commercially used chemical compounds, most of which are toxic to
man at high levels of exposure. (13) However, the long-term
effects of low levels are known for only a few.
Although lack of effort partially accounts for this paucity of
knowledge, our ignorance also stems from the many difficulties
inherent in testing for adverse effects. The large number of chemi-
cals that should be evaluated by long-term laboratory experiments
requiring many test animals is a serious limiting factor. Extrapo-
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GUIDELINES AND REPORTS 3395
lation of data on dose effects obtained from animal studies to man
must consider many species variations in response to exposure
from toxic substances. Substances rarely occur in the environment
in isolation, so that possible synergism or antagonism of two or
more substances adds to the difficulty of adequate testing and of
interpretation of field results.
Difficult choices must also be made in determining the effects or
biological end points to be examined. Biological end points are
often determined from such irreversible effects as carcinogenesis,
mutagenesis, and teratogenesis.
Carcinogenesis is the ability of a substance to cause cancer.
Chemical mutagenesis is the induction in protoplasm of genetic
mutations by a substance. These can be permanent and transmissi-
ble changes in the genes of an offspring from those of the parents
of earlier generations. Teratogenesis is the production of physical
or biochemical defects in an offspring during gestation; it is lim-
ited to a particular child. During the last decade, there were many
deformed infants born of women who had ingested the drug thali-
domide during pregnancy—a vivid example of teratogenesis.
The effects of any given substance may vary among individuals
and among species. Differences in effects are a function of age,
sex, health condition and history, stress, different metabolic pat-
terns in different species, and other less understood factors. Fur-
ther, we often do not know how to apply to humans the results
from experiments with laboratory animals. If a substance pro-
duces cancer in mice, will it produce human cancers? How do we
extrapolate the level of a substance required to produce a given
effect in mice to the level that will produce the same effect in man?
If mice are not affected by a substance, is that substance also safe
for humans ?
All these difficulties contribute to the dearth of knowledge con-
cerning the biological effects of many environmental contaminants
and particularly the toxic substances discussed in this report. But
we do understand enough to know that many substances may
significantly threaten man and the environment.
Many useful data on health effects of toxic substances derive
from studies of occupational exposure. Commonly, the levels of
exposure are much higher at the workplace than in the total envi-
ronment, and the data gathered on exposed groups of workers can
contribute to understanding effects on the general population.
However, even here caution must be exercised in interpreting the
results for nonindustrial groups who are exposed to lower concen-
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3396 LEGAL COMPILATION—GENERAL
trations and whose level of health may not match that of the
industrial worker.
A few examples will illustrate the ways in which toxic sub-
stances have become a part of our environment and have affected
humans. These examples are not in any way intended to be ex-
haustive or definitive. All of the limitations cited above concerning
data on effects apply to the examples, and the data given are used
simply to illustrate, in a selective way, the basis for concern over
toxic substances.
Metals and Their Compounds
The potential for dangerous metals' entering the environment is
indicated by the consumption data in Chapter I. Studies of am-
bient conditions substantiate these data: Twenty-seven trace ele-
ments are found in the atmosphere. (33) A survey of eight heavy
metals in U.S. waters showed that these metals were distributed in
low concentrations. (10) Their level in drinking water generally
did not exceed standards but did indicate potential problems in
some areas.
Examples of the toxic effects of metals are readily found. Com-
pounds of nickel and beryllium, which accumulate in the lungs,
may cause fatal diseases. (33) If inhaled, barium can cause res-
piratory disease, or if ingested in sufficient quantities, it causes
heart, intestinal, and nervous system disorders. (27)
Some laboratory experiments indicate that exposure to metals
may interfere with vital chemical reactions. In a study of rats and
mice living in a carefully controlled environment relatively free
from metal contamination, the sample group lived 20 to 25 percent
longer than the control group in its usual contaminated environ-
ment. (33) In addition, laboratory breeding mice exposed to con-
centrations of cadmium, lead, or selenium produced abnormal
offspring. Long periods of arsenic and molybdenum exposure
changed the sex ratios of mice and rat offspring. Antimony, in low
doses, shortened the lifespan of rats. (33)
Lead—Lead is one of the oldest known pollutants. In the second
century B.C., the wealthy class of Rome was decimated by steril-
ity, child mortality, and permanent mental impairment. (12) Ac-
cording to one theory, this decline can be traced to lead poisoning
from wine and food vessels. The lower classes survived because
they could not afford lead utensils.
Today lead is absorbed by humans in a more democratic way,
because all social classes are exposed to lead in the atmosphere.
Lead particles in the air eventually settle to land and water, mix-
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GUIDELINES AND REPORTS 3397
ing with other sources of the metal and following complex path-
ways in the environment. The increase in lead pollution is now
global in scope. For example, between 1904 and 1964, lead concen-
trations in Greenland snow increased 16-fold. (28)
A variety of industrial and mining effluents, disposal of con-
sumer products such as automobile batteries, and various food
products all contribute to both environmental and human accumu-
lation of lead. However, these sources are small contributors to
lead pollution compared with combustion of leaded gasoline. In
1968 alone, 180,000 tons of lead were emitted from leaded-gasoline
combustion—14 percent of all lead consumed in the United States
that year. (11)
Although the acute toxicity of lead has been a health problem
for 2,000 years, the effects of ambient levels are not known. Acute
poisoning is still a frequent problem, primarily among children
who have eaten chips of lead-based paint in older dwellings. The
use of lead-based paint is now restricted, but there are still many
old houses whose walls are covered with lead paint applied years
ago. Aside from this problem, the critical question today is
whether the total body burden produced by inhaling air polluted
with lead and by drinking water containing small amounts of lead
is sufficiently large to produce any adverse effects. The data are
not conclusive, but in the opinion of at least one recognized expert,
"There is little doubt that at the present rate of pollution, diseases
due to lead toxicity will emerge within a few years." (33)
Cadmium—Like most metals, cadmium is stable and does not de-
grade in the environment. Thus, as increasing amounts of cad-
mium are refined, more and more of it is circulated in the environ-
ment, and increasing amounts may reach man.
Only a fraction of the cadmium taken into the body is actually
absorbed by the body. The cadmium which is absorbed accumu-
lates in the kidneys and the liver, and because there appears to be
an inefficient excretory mechanism in humans, accumulation tends
to increase with increased absorption.
The effects of such accumulation vary according to the amount
and time period of exposure. Some preliminary studies indicate
that exposure to low levels of cadmium from sources present in
the everyday environment may lead to hypertension and heart
disease and perhaps to cancer. (5,30,34)
Many sources contribute to the accumulation of cadmium in
humans. The metal is found in concentrations of 50 to 170 parts
per million in superphosphate fertilizers, and it is also used in
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3398 LEGAL COMPILATION—GENERAL
some pesticides. (3) Cadmium becomes an air and water pollutant
through a variety of industrial processes, and it is being used in
increasing amounts by the storage battery, plastics, plating, and
petroleum industries. Additional amounts are introduced into the
home by the pipes which carry drinking water. (33) Food is
another major source of cadmium—it has been found in a variety
of products, from dry cereal to vermouth. (29)
Mercury—Although poisoning from mercury has been recognized
as an occupational hazard for years, concern with mercury as a
general environmental contaminant in the United States is quite
recent.
Metallic mercury was long thought environmentally inert. When
discharged into a river, for example, it was believed to settle to
the bottom and remain there. Then in 1960, it was reported that
111 persons had died or suffered serious neurological damage near
Minamata, Japan, as a result of eating fish and shellfish which had
been contaminated by mercury discharged into Minamata Bay by
a plastics manufacturing plant. (1) In 1965, another poisoning
incident was reported in Niigata, Japan, and in 1966, Swedish
studies indicated that many species of birds were being poisoned
by mercury. (18) Other Swedish studies pinpointed the critical
facts that metallic mercury, previously thought inert, can be
changed by bacteria into methylmercury—a compound that is far
more toxic than metallic mercury—and that methylmercury can
enter the food cycle through uptake by aquatic plants, algae, lower
forms of animal life, and fish. (17, 21) Even more significantly,
the studies showed that the concentration factor in the fish could
be 3,000 or more to 1. (18) Thus, harmless levels of mercury in
water can be concentrated to hazardous levels in fish.
In 1967, large amounts of methylmercury were reported in
fresh-water fish in Sweden. (21) A study submitted in the same
year to the U.S. Public Health Service concluded: "From our
review of mercury as an environmental chemical contaminant, it
is obvious that a considerable amount of mercury has been cycled
through our environment. . . . We have little or no information
as to where the mercury that is being cycled through our environ-
ment is going." (24) The report recommended expanded monitor-
ing and study of the health effects of mercury.
Finally, in the spring of 1970, high levels of mercury were
discovered in fish in Lake St. Glair, on the Canada-U.S. border.
Canada banned the sale of fish from the Lake, and 10 days later
Michigan followed suit. In succeeding months, there followed a
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GUIDELINES AND REPORTS 3399
series of bans, mostly of fish and seafood products containing, or
suspected of containing, excessive mercury. These actions resulted
in losses of millions of dollars to the food, canning, and tourist
industries.
The concern over mercury is well founded. Some organic mer-
cury compounds are accumulated in humans, concentrating in the
brain, the kidney, the liver, and the fetus. They can destroy the
cells of the brain, cause tremors and mouth ulcers, and produce
birth defects because of chromosome breakage. (19)
The sources of mercury are numerous. It is used in a number of
industrial processes and appears in such varied products as paints,
electrical apparatus, thermometers and other instruments, and
cosmetics. Primary concern has focused on mercury as a water
pollutant, largely because it is now known to reach the food chain
by water, but the metal is also present in soil and in air.
Vanadium—Very little research has been done on the toxicity of
environmental concentrations of vanadium. When the route of
exposure is the respiratory tract, vanadium may accumulate in the
lungs. High concentrations of the metal may damage human gas-
trointestinal and respiratory tracts. (4) Exposure to lower con-
centrations has resulted in inhibition of cholesterol synthesis in
man. (4)
Trace amounts of vanadium are natural to all humans, but it is
probably a recent addition to the atmosphere. There is no evidence
that ambient levels of vanadium are toxic. But these levels have
been increasing in recent years due to the burning of fuel oils
containing vanadium and to increased industrial use of vanadium
compounds. Eighteen compounds of vanadium are now used in a
wide variety of commercial processes. (24)
Synthetic Organic Chemicals
A vast number of synthetic organic chemicals is being intro-
duced into the environment, and many of these chemicals have not
been identified. A study prepared for the Water Quality Office of
the Environmental Protection Agency reported that 496 organic
chemicals were found or suspected in fresh water, but the chemi-
cal composition of only 66 of these was identified. (22) The dis-
parity between the number recorded and the number identified
indicates the need for better monitoring and analytical techniques.
It also shows the difficulty of dealing with such substances once
they have entered the environment.
Some organic compounds have been identified as tumor-produc-
ing in experimental animals. A smaller number have been singled
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3400 LEGAL COMPILATION—GENERAL
out as capable of causing cancer in humans. Research on terato-
genic effects has been limited, but a few chemicals have been
shown to be teratogenic in humans in doses corresponding to those
which might be expected in the environment. So little testing has
been conducted on the mutagenic effects of synthetic organic
chemicals that almost nothing is known about such effects.
Discussed below are three examples of synthetic organic chemi-
cals which have posed some hazard to human health or the envi-
ronment.
NT A (Nitrilotriacetic Acid)—NTA recently came into extensive
use as a substitute for phosphates in detergents. Until a couple of
years ago, almost no NTA was used. NTA, a substance with which
the consumer has suddenly come into direct contact, may enter the
general aquatic environment in large quantities through flushing
into sewers and septic tanks. If NTA proved safe, an estimated
600 million pounds would have been used annually in detergents
by 1973. (36) Because of its concern with water pollution caused
by detergents, the Federal Government studied the health and
environmental effects of NTA and other phosphate substitutes.
Preliminary results indicated that NTA may combine with cad-
mium, mercury, and other metals to enhance the toxicity of these
metals. Therefore, the major detergent manufacturers recently
agreed not to use NTA until completion of testing now underway.
ONCB (Orthonitrochlorobenzene) (26)—ONCB is an unusable
byproduct in the manufacture of paranitrochlorobenzene, a chemi-
cal in wide commercial use. In 1958, this unique and persistent
chemical was found at levels of .021 parts per million in water
samples taken at monitoring stations between St. Louis and New
Orleans. Concentrations of 0.03 parts per million of ONCB were
found in treated drinking water, indicating that ONCB survived
normal potable water treatment procedures. Few studies have
been done on the effects of ONCB, but it was calculated that 5 to
50 parts per million would be lethal to humans and that 0.5 to 5
parts per million would cause clinical symptoms.
Although concentrations of ONCB in the water were not toxic,
the Public Health Service concluded that the safety factor was not
adequate, the chemical was remarkably persistent, and normal
water treatment was inadequate. On the basis of this analysis, the
source of the ONCB agreed to remove waste streams containing
ONCB from the river.
PCB's (Polychlorinated Biphenyls)—The molecules of plastics are
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GUIDELINES AND REPORTS 3401
generally inert and nonreactive. Problems arise because of certain
types of plasticizers, dyes, oxidation retardants, and various stabi-
lizers which are added to plastics. These additives are not always
chemically bound to the plastic molecules and thus may be released
into the environment. PCB's, also known as Aroclors, are such a
group of additives.
PCB's are among the more persistent organic chemicals—they
degrade very slowly in the environment. In addition to their use as
plasticizers, they have also been used in paint, electrical trans-
formers, and lacquer resins and as lubricants, heat transfer fluids,
and "carriers" for some insecticides. Structurally, PCB's resemble
DDT, and like DDT, they are not soluble in water but are fat
soluble and therefore can be absorbed by human tissue. The re-
semblance to DDT goes further. PCB residues have been found in
fish and wildlife around the world. Normally used analytical meth-
ods find it difficult to differentiate between DDT and PCB's.
In April 1969, PCB's were first detected as residues in oysters
in Escambia Bay, Florida. Further sampling indicated the pres-
ence of PCB residues in the water, sediment, fish, blue crabs, and
shrimp. The substance was traced to a leak from an industrial
plant 6 miles upstream from the Bay. PCB was being used there
as a heat exchange fluid, and the leak was not known. The leak has
been stopped, but PCB's are still present in the Bay, albeit in
decreasing amounts, apparently leaching from river sediments.
(9)
Tests with PCB's have shown that 0.1 parts per million were
fatal to juvenile pink shrimp after a 48-hour exposure, and the
same concentrations stopped oyster shell growth in 96 hours. In
laboratory tests, shrimp, pinfish, and oysters all concentrated
PCB. (9) U.S. Fish and Wildlife Service workers have correlated
the lethal effects of PCB's on game birds directly with the chlorine
content of PCB. (15)
PCB's have also been found in Great Lakes fish and in human
fatty tissue. (31) A study of human tissue samples showed con-
centrations of from less than 1.0 parts per million to as high as
250 parts per million. Fifteen percent of the samples exceeded 1.0
parts per million PCB's. (31) Another study showed that over
half the urban residents examined had traces of PCB in their
blood. (11)
SUMMARY
This chapter discusses the many pathways by which toxic sub-
stances enter the environment. Such substances are found in air,
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3402 LEGAL COMPILATION—GENERAL
water, soil, food, and a variety of consumer products. Once they
enter the environment, complex changes can take place which can
alter their chemical form and change the ways in which they
affect man.
The effects of toxic substances on man vary according to the
type of substance, the amount of the substance to which a person
is exposed, the duration and method of exposure, and several other
factors. There is ample evidence that many metals and synthetic
organic chemicals can pose hazards to human health.
Effects on human health are the primary concern of this chap-
ter. Effects on wildlife, agriculture, and other parts of the ecosys-
tem pose additional problems, but the effects of toxic substances
on ecosystems have been even less well explored by scientists than
the effects of such substances on man.
Chapter III
TECHNOLOGICAL AND LEGAL CONTROLS
This chapter details methods for controlling the introduction of
toxic substances into the environment. Technological controls are
discussed as background for evaluation of institutional and legal
authorities available.
TECHNOLOGICAL METHODS OF CONTROL
Several control strategies exist for almost all the substances
included in this study because each enters the environment in
numerous ways. The strategies are of two general types: control
of a product and its uses, including total prohibition of the prod-
uct, and control of the effluents. The alternatives and their rela-
tionship to the pathways by which contaminants enter the natural
environment are shown in Figure 2. Each is discussed briefly.
Product Control
Control of products ("1" in Figure 2) to reduce contamination
of the environment can be effected by either reducing the input of
the raw material of concern or changing the nature of the end
products.
From a materials balance analysis, reducing the amount of a
contaminant that is initially used ultimately reduces the amount
that can enter the environment from effluents, regardless of the
number or complexity of intermediate steps. Also, to the extent
that the total body burden for a given substance or its accumula-
tion in a target organ is important, this control point may be the
easiest at which to determine the absolute reduction required.
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GUIDELINES AND REPORTS 3403
For example, fuel oils contain varying concentrations of metals.
In the future we may have to look to fuels with low concentrations
of highly toxic metals, just as we look to low-sulfur fuels today.
Fuel oil combustion is chiefly responsible for vanadium concentra-
tions in the atmosphere. Residual oil imported from Venezuela has
up to 63 percent vanadium pentoxide in ash, compared with 14 to
38.5 percent for oil from Iran and 0.4 percent, 1.4 percent, and 5.1
percent for oil from Kansas, Texas, and California, respectively.
(35) Changing to low-vanadium fuel is a control that could be
used to reduce atmospheric vanadium concentrations if such re-
duction were necessary.
Changing end products or prohibiting their production is an
important control technique because man is directly affected by
these products and by their disposal—through interaction with the
environment and through further interaction with man. Simply
changing an ingredient can also effect a desired change. For exam-
ple, lead has been used in paint to accelerate drying; its harmful
effects can be eliminated by removing it from the product formu-
lation and substituting another less toxic or nontoxic material.
Certain plastic products have used plasticizers which were per-
sistent and upon disposal could cause damage to wildlife. Replac-
ing them with other materials has alleviated the disposal problem
without robbing the product of desired physical characteristics.
Control over use of a product is often successful in reducing or
eliminating damage caused by the product. The circumstances
under which products such as drugs or pesticides can be used are
carefully regulated because of the severe damage which can result
if they are misused. Many toxic substances can be used safely if
human exposure is prevented. For example, the manufacturer of
PCB's agreed to limit their use to closed systems, thus preventing
damage by preventing their entering the environment.
Effluent Control
A second method of controlling the introduction of pollutants
into the environment is to change the production process to elimi-
nate or to control the effluents.
Changes in production processes may, in some cases, signifi-
cantly reduce the quantities of contaminants that are discharged
as effluents or that become intermediate or final products. For
example, improving the efficiency of synthetic organics production
can reduce the volume of toxic or potentially toxic effluents. Yields
of organic products are rarely, if ever, 100 percent. Remaining
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3404 LEGAL COMPILATION—GENERAL
chemical constitutents are usually wastes, which may be re-
covered, treated, or released to the environment. Hence, to the
degree that production is made more efficient and more of the raw
material is utilized, wastes released to the environment are re-
duced.
Similarly, changes in production processes can change byprod-
ucts or wastes to less toxic or less persistent compounds. Some
carcinogenic organic compounds are produced by burning coal and
refuse. Improving combustion efficiency lowers the concentration
of the carcinogens emitted.
Controlling effluents from manufacturing processes and from
end product disposal has been the most widely used technique for
controlling pollutants. The processes used are recycling, waste
treatment, or other kinds of disposal.
When the contaminants are of high value, as some metals are,
recycling not only protects the environment but may also be the
major source of the mineral. For example, arsenic, cadmium, and
selenium occur in such low natural contrations that they are not
mined for themselves but are recovered during the refining of lead
and zinc, among other metals. Similarly, because mercury is ex-
pensive, much of it can be economically recovered from effluents
for reuse.
Recycling synthetic organic chemicals is more difficult than re-
cycling metals and their compounds due to their complex molecu-
lar structures and to the economics of recovery. However, recy-
cling rather than disposal is sometimes possible. Instead of incin-
erating scrap plastics, some scrap can be remelted for reuse in
fabrication.
Treatment of wastes is also useful in preventing the harmful
interaction of contaminants and the environment. Arsenic, nickel,
and vanadium are usually airborne contaminants resulting from
smelting other metallic ores. These toxic substances are commonly
emitted with particulates. Therefore baghouse filters, wet scrub-
bers, and electrostatic precipitators which remove substantial
quantities of particulates also reduce emission of these toxic met-
als. The resultant ash and metals can then be carefully disposed of
or recycled. For example, an electrostatic precipitator which effec-
tively reduces particulate emissions also reduces arsenic concen-
trations from a range of 5 to 17 parts per billion before treatment
to 0 to 4 parts per billion after treatment. (39)
Effluents can also be neutralized before final disposal. Metala
converted to metallic salts or sulfides can be disposed of more
safely. Also, some potentially toxic synthetic organics can be
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GUIDELINES AND REPORTS 3405
treated. Before disposal, phenols—a byproduct of some synthetic
organic processes—can be decomposed by biological action into
carbon dioxide and water, two harmless, natural chemical compo-
nents.
EXISTING LEGAL CONTROLS
Legal authorities available to control pollution parallel the tech-
nical methods of control. A product is controlled by regulating the
amount manufactured and the uses permitted. For some products
the processes of manufacture are regulated. Effluent control has
generally involved the establishment and enforcement of stand-
ards for levels of air or water pollutants.
Product Control
The Federal Government exercises some control over the manu-
facture and distribution of pesticides, drugs, food additives, con-
sumer products, and radioactive materials. Each of these authori-
ties differs somewhat from the other.
Pesticides are regulated under the Federal Insecticide, Fungi-
cide, and Rodenticide Act (FIFRA) (7 U.S.C. 135-135k), enacted
to protect the user and handler of pesticides by requiring registra-
tion, proper labeling, and in some cases coloring of pesticide prod-
ucts. The FIFRA regulates the marketing, in interstate commerce,
of "economic poisons and devices," which includes insecticides,
rodenticides, plant defoliants, and household disinfectants.
The FIFRA requires registration of pesticides with the Admin-
istrator of the Environmental Protection Agency (EPA). The
manufacturer must submit data to establish the safety and efficacy
of a pesticide along with the label proposed for the product. This
information is reviewed to determine that the label contains ade-
quate directions for use and adequate warnings to assure that
handling, storage, or use of the product will not result in injury or
damage when used as directed. Through the registration proce-
dure and its approval of labeling, EPA can control whether a
pesticide will be marketed and, if marketed, the particular crops
on which it will be used. There is no provision for control over
application of the pesticide, but the Administration has submitted
a new, comprehensive pesticides bill which would remedy this and
other defects in the existing law. The Food and Drug Administra-
tion (FDA) also enforces pesticide regulations through examina-
tion of food to insure that the pesticide residues do not exceed
allowable limits.
FDA, under the authority of the Food, Drug, and Cosmetic Act
-------
3406 LEGAL COMPILATION—GENERAL
(21 U.S.C. 301 et seq.), regulates food labeling, food additives,
food containers, drugs, and cosmetics. Particularly tight controls
are exercised over drugs. Before they are marketed, drugs must be
registered and approved by FDA. They must be properly labeled
and must be safe and effective when used as directed or suggested.
Drug producers must register their plants, which are subject to
close inspection by FDA. Manufacturers and handlers of depres-
sant or stimulant drugs must keep extensive records of the type,
quantity, and disposition of such drugs.
Regulation of foods, food additives, and cosmetics is less strin-
gent. Food standards can be prescribed for identification, quality,
and fill of containers. New food additives must be cleared prior to
use. FDA can prohibit the use of particular food additives or
establish tolerance levels for the amount to be used. Although
preclearance is not required for cosmetics, they must not contain
poisonous or deleterious substances; they cannot be produced or
held in unsanitary conditions or packaged in a container which
renders the contents injurious to health; and they must be fairly
and accurately labeled.
Radioactive materials are the most closely regulated of all sub-
stances. Under the authority of the Atomic Energy Act of 1945, as
amended (42 U.S.C. 2011 et seq.), the Atomic Energy Commission
(AEC) regulates almost the entire spectrum of activity associated
with the handling, transportation, and disposal of radioactive ma-
terials. Specifically, the AEC licenses and maintains continuing
surveillance over facilities utilizing, processing, or disposing of
radioactive materials. It also prescribes procedures and standards
for packaging and shipping such materials.
Effluent Control
There are two major statutory authorities for controlling the
release of pollutants directly into the environment—the Federal
Water Pollution Control Act (33 U.S.C. 466 et seq.) and the Clean
Air Act (42 U.S.C. 1857 et seq.). Both have been extensively
amended since enactment, and the Congress is now considering
further major changes in the Water Pollution Control Act.
The Federal Water Pollution Control Act provides for establish-
ment of Federal-State water quality standards for interstate and
coastal waters. Standards for all States have been approved by the
Federal Government, although standards for some interstate wa-
ters and some measures of quality have not yet been established.
These standards basically cover general parameters of the water
—such as oxygen content, temperature, and turbidity—rather
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GUIDELINES AND REPORTS 3407
than specific substances in the water. Although the standards may
be enforced directly by the Federal Government, primary respon-
sibility for enforcement rests with the States.
Early in 1970 and again in 1971, the Administration submitted
to the Congress amendments to the Water Pollution Control Act
designed to broaden the Act's coverage and to simplify the en-
forcement process. The amendments would extend the coverage of
water quality standards to all navigable waters, ground water, the
contiguous zone, and the high seas with respect to discharges
emanating from U.S. territory; and they would authorize estab-
lishment of effluent standards for all such waters. The Govern-
ment also recently announced a program based on the 1899 Refuse
Act, which requires a Federal permit to discharge effluents other
than municipal sewage. The Refuse Act authority will serve as the
basis for a national system of controlling industrial pollution.
The Clean Air Act has provided for a system of Federal-State
establishment of air quality standards. However, comprehensive
amendments to the Act (Clean Air Amendments of 1970 (Public
Law 91-604)) passed recently require the Federal Government to
establish national air quality standards and require the States to
submit emission standards for individual pollutants for Federal
Government approval. Further, the amendments require Federal
establishment and enforcement of emission standards for certain
classes of new industry and for hazardous air pollutants.
In addition to air and water pollution control, the Federal Gov-
ernment is concerned with solid waste disposal. However, the
Solid Waste Disposal Act (42 U.S.C. 3251-3259) and the amend-
ments contained in the Resource Recovery Act of 1970 (Public
Law 91-512) do not authorize Federal regulation but deal primar-
ily with research and demonstration of improved methods of dis-
posal. The Resource Recovery Act does require the formulation of
a plan for a system of national disposal sites for the storage and
disposal of hazardous wastes. Many State and local governments
promulgate disposal regulations, but in the main the regulations
are concerned with visible smoke, not with toxic substances. No
laws or regulations are directed at the problems which may be
created by the disposal of potentially toxic materials.
Toxic Substances
Existing law does not entirely ignore the types of substances
dealt with in this study. Toxic substances are specifically dealt
with in the Hazardous Substances Act (15 U.S.C. 1261-1273),
section 12 of the Federal Water Pollution Control Act (33 U.S.C.
-------
3408 LEGAL COMPILATION—GENERAL
1162), the recent amendments to the Clean Air Act, and the au-
thorities of the Department of Transportation relating to trans-
portation of hazardous substances.
The Hazardous Substances Act covers household products and
toys—but not the raw materials from which they are manufac-
tured. Thus it does not deal directly with most of the toxic sub-
stances of concern in this report. Primarily the law authorizes the
Secretary of Health, Education, and Welfare only to require how a
product should be labeled. Although the Act does allow extremely
hazardous products to be banned from interstate commerce, the
definition of a "hazardous substance" is quite restrictive, stating
that a substance may be banned only if special labeling or packag-
ing is found ineffective in preventing a hazard. Only three house-
hold products have been banned.
Section 12 of the Federal Water Pollution Control Act author-
izes the President to designate hazardous substances and to recom-
mend methods and means for their removal from water. Under the
section (33 U.S.C. 1162(a)), "hazardous substances" is limited to
"such elements and compounds which, when discharged in any
quantity into or upon the navigable waters of the United States or
adjoining shorelines or the waters of the contiguous zone, present
an imminent and substantial danger to the public health or wel-
fare . . ." The section is generally aimed at accidental discharges
of such substances into water and thus does not cover either con-
tinuous discharges into water or release of hazardous substances
into other media.
The Clean Air Amendments of 1970 contain a section directed
specifically at hazardous substances and also authorize the Admin-
istrator of EPA to regulate the use of fuel additives. Section 112
requires the EPA Administrator to publish a list of air pollutants
which are not covered by air quality standards and which "may
cause, or contribute to, an increase in mortality or an increase in
serious irreversible, or incapacitating reversible, illness." The Ad-
ministrator must then set and enforce national emission standards
for these pollutants. A similar section has been included in the
Administration's proposed amendments to the Water Pollution
Control Act.
The Department of Transportation (DOT) regulates interstate
transportation of hazardous substances under several authorities,
including the Department of Transportation Act (49 U.S.C. 1651
et seq.), the Transportation of Explosives Act (18 U.S.C.
831-837), and the Hazardous Cargo Act (46 U.S.C. 170). DOT
has defined several classes of hazardous materials (49 C.F.R.
-------
GUIDELINES AND REPORTS 3409
Parts 170-179), and its Hazardous Materials Regulations Board
plans further classification based upon health hazard (35 Fed.
Reg. 8831, June 6, 1970). Although some testing for effects of
hazardous substances is involved in the implementation of these
regulations, substances are classified primarily from the perspec-
tive of hazards involved in their transportation and possible spills
from accidents. Most of the problems of toxic substances discussed
in this report relate to aspects of their use rather than to trans-
portation and spills.
Inadequacy of Authorities
It is clear that current laws are inadequate to control the actual
and potential dangers of toxic substances comprehensively or sys-
tematically. The controls over manufacture and distribution per-
tain to only a small percentage of the chemical substances which
find their way into the environment. Almost all the effects de-
scribed in Chapter II relate to substances not covered by present
controls over manufacture and distribution.
Both controls over production and controls over effluents suffer
from the limited focus of their authority. For example, the Food
and Drug Administration carefully examines food containers for
their effect on food but does not address the environmental and
health effects of incinerating the containers. With the exception of
radioactive materials, disposal is not a consideration in any pro-
grams controlling manufacture.
But the problems of focus are broader than specific examples.
Setting rational standards for many pollutants under existing leg-
islation is almost impossible. The key factors involved in setting
standards are the total human exposure to a substance and its
total effect on the environment. The focus must be on a particular
pollutant and all the pathways by which it travels through the
ecosystem. Controls over distribution approach this perspective,
but most fail to consider important environmental factors ade-
quately.
The obvious limitation of controls over effluents is that they
generally deal with a problem only after it is manifest. They do
not provide for obtaining information on potential pollutants be-
fore widespread damage has occurred.
More subtle but more serious limitations of effluent controls
arise from their focusing on the media—air or water—in which
the pollution occurs. This approach has several consequences:
First, it leads to concern with those substances found in air or
water in the greatest quantities. For example, the Air Pollution
-------
3410 LEGAL COMPILATION—GENERAL
Control Office uses the gross weight of air pollutants as one indica-
tor of the severity of air pollution. Gross weight is a valid indica-
tor, but it disregards the degrees of danger of the various pollu-
tants. As indicated in Chapter II, comparatively small amounts of
some substances can cause severe damage, but media-oriented pro-
grams tend to overlook the importance of such substances. An-
other consequence of the media approach is that it cannot deal
effectively with the fact that many, perhaps most, toxic substances
find their way into the environment through several media. They
cannot be characterized strictly as water pollutants or as air pollu-
tants, for they are found in air, in water, and often in soil, food,
and other parts of the environment. The characteristic pervasive-
ness of toxic substances makes it difficult for the media-oriented
programs to engage in adequate and efficient research, monitoring,
and control activities for such substances. The need for such a
comprehensive approach was a major rationale for the creation of
the Environmental Protection Agency (EPA).
The scope of EPA's authority provides a basis for an integrated
approach to toxic substances. However, such an approach cannot
be accomplished simply by coordinating the activities of existing
media-oriented programs. The activities themselves must be con-
ducted on an integrated basis. Testing to determine the health or
environmental effects of a substance must be done in terms of
total exposure to the substance, not simply exposure through air
or through water. There must exist a capability for integrating
the monitoring data from various media and for doing nonmedia
analyses, for example, utilizing the materials balance approach.
(This approach compares the total amount of a substance pro-
duced with the amount appearing in various end uses. A disparity
between the two indicates the approximate amount escaping into
the general environment.) Finally, there must exist authority to
insure that the effects of a new substance are carefully examined
before it enters the air, soil, or water.
A NEW SYSTEM
The shortcomings of the legal authorities described above, the
effects of toxic substances outlined in Chapter II, their increasing
number and amounts indicated in Chapter I, and the inadequate
attention paid to such substances all support the need for a new
legal and institutional system to deal with toxic substances.
Our awareness of environmental threats, our ability to screen
and test substances for adverse effects, and our capabilities for
monitoring and predicting, although inadequate, are now suffi-
-------
GUIDELINES AND REPORTS 3411
ciently developed that we need no longer remain in a purely reac-
tive posture with respect to chemical hazards. We need no longer
be limited to repairing damage after it has been done; nor should
we allow the general population to be used as a laboratory for
discovering adverse health effects. There is no longer any valid
reason for continued failure to develop and exercise reasonable
controls over toxic substances in the environment.
In February 1971, the Administration submitted to the Con-
gress a bill developed by the Council on Environmental Quality in
consultation with EPA and other agencies, entitled The Toxic
Substances Control Act of 1971. The bill contains two new, major
authorities :
• The Administrator of the Environmental Protection Agency
would be empowered to restrict or prohibit the use or distribu-
tion of a chemical substance if such restriction were necessary
to protect health and the environment. In imposing such a re-
striction, the Administrator would be required to consider not
only the adverse effects of the substance but also the benefits to
be derived from use of the substance, the normal circumstances
of use, the degree to which release of the substance or its by-
products to the environment is controlled, and the magnitude of
human and environmental exposure to the substance or its by-
products.
• The Administrator would be authorized to issue standards for
tests to be performed and for results to be achieved from such
tests for various classes and uses of new substances. A new
substance could be marketed only after it met these standards.
Consumer products (insofar as their household use is hazard-
ous), pesticides, drugs, and other kinds of substances which are
already regulated would continue to be regulated under existing
authorities rather than under the Toxic Substances Act.
In addition to these two authorities, the bill contains several
other significant provisions. If the Administrator believed that a
substance were creating an imminent hazard, he could ask the
courts to restrain use or distribution of the substance immedi-
ately. The Administrator would be authorized to develop the re-
sources necessary to predict introduction of new chemical sub-
stances into the environment and to assess the environmental con-
sequences of their introdution. The Council on Environmental
Quality would be charged with coordinating efforts to establish a
uniform system for classifying and handling information on chem-
ical substances. The bill would also establish an independent Toxic
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3412 LEGAL COMPILATION—GENERAL
Substances Board to provide scientific advice to the Administrator
of EPA.
EPA would also be given authority to collect information on
potentially toxic substances, an authority vital to a successful pro-
gram for dealing with such substances. The Administrator could
request information from manufacturers on the substances that
they produce—names, chemical identities, amounts produced, uses,
and results of tests conducted on their effects.
SUMMARY
Existing legal authorities are inadequate to deal with toxic sub-
stances. If a substance is toxic, control must often be exercised at
the point of manufacture and distribution because the variety of
ways in which such substances enter the environment and the
difficulties of detecting many of them make effluent controls an
ineffective mechanism. Also, standard-setting, monitoring, and
control can often be done more efficiently and rationally if attention
is focused on the particular substance rather than on the medium
in which it may appear.
The proposed Toxic Substances Control Act represents a signifi-
cant step in dealing with problems that will become increasingly
acute unless action is taken. The growing number and amount of
substances produced commercially are an environmental problem
of potentially great magnitude. The proposed legislation and ac-
companying administrative action would protect the public and
the environment to a far greater degree than is now possible.
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posium Held at the University of Rhode Island October 29 & 30, 1964.
University of Rhode Island, Graduate School of Oceanography, Narra-
gansett Marine Laboratory Occasional Pub. No. 3.
29. Nilsson, R. 1969. Aspects on the Toxicity of Cadmium and Its Com-
pounds : A Review. Swedish Natural Science Research Council, Ecologi-
cal Research Committee Doc. No. 1. (mimeograph)
30. Potts, C.L. 1965. Cadmium Proteinuria—The Health of Battery Workers
Exposed to Cadmium Oxide Dust. Annals of Occupational Hygiene
8:55-61.
31. Price, H.A. 1970. Occurrence of Polychlorinated Biphenyls in Humans.
Presented at a President's Cabinet Committee on the Environment,
Subcommittee on Pesticides meeting, Patuxent Wildlife Research Cen-
ter, Laurel, Maryland, May 22. (abstract, mimeograph)
32. Pringle, B.H., Hissong, D.E., Katz, E.L., and S.T. Mulawka. 1968. Trace
Metal Accumulation by Estuarine Mollusks. Journal of the Sanitary
Engineering Division 94:455-475. No. SA3, Proceedings of the Ameri-
can Society of Civil Engineers Paper No. 5970.
33. Schroeder, H.A. 1970. Trace Elements in the Human Environment. En-
tered into the record of the Senate Committee on Commerce, Subcom-
mittee on Energy, Natural Resources, and Environment. August 27.
34. Schroeder, H.A. 1965. Cadmium as a Factor in Hypertension. Journal of
Chronic Diseases 18:647-656.
35. Schroeder, H.A. undated. Vanadium in Man and His Environment. Air
Quality Monograph No. 2. (mimeograph)
-------
GUIDELINES AND REPORTS 3415
36. Soap and Detergent Association. 1971. Information provided to the Coun-
cil.
37. Steinfeld, J.L. 1970. Testimony Before the Senate Committee on Com-
merce, Subcommittee on Energy, Natural Resources, and Environment.
August 27.
38. Stokinger, H.E. 1969. The Spectre of Today's Environmental Pollution—
USA Brand: New Perspectives from an Old Scout. American Indus-
trial Hygiene Association Journal 30:195-217.
39. Sullivan, R.J. 1969. Preliminary Air Pollution Survey of Arsenic and Its
Compounds: A Literature Review. Prepared by Litton Systems, Incor-
porated under Department of Health, Education, and Welfare, Public
Health Service, Consumer Protection and Environmental Health Serv-
ice, National Air Pollution Control Administration contract No. PH
22-68-25.
40. Tag-gart, A.F. 1945. Handbook of Mineral Dressing, Ores, and Mineral
Industries.
41. U.S. Department of Commerce. 1971. U.S. Industrial Outlook 1971 with
Projections Through 1980.
42. U.S. Department of Commerce. 1971. Information provided to the Council.
43. U.S. Department of Health, Education, and Welfare. 1971. Information
provided to the Council.
44. U.S. Department of the Interior. Bureau of Mines. 1969. Minerals Year-
book 1968: Volume I-II, Metals, Minerals, and Fuels.
45. U.S. Department of the Interior, Bureau of Mines. 1949. Minerals Year-
book 1948.
46. U.S. Department of the Interior, Federal Water Pollution Control Ad-
ministration. 1970. The National Estuarine Pollution Study.
47. U.S. Tariff Commission. 1970. Synthetic Organic Chemicals: United
States Production and Sales, 1968. T.C. Pub. No. 327.
48 U.S. Tariff Commission. 1970. U.S. Production and Sales of Dyes In-
creased in 1969. Public Information. October 23.
49. U.S. Tariff Commission. 1963. Synthetic Organic Chemicals: United
States Production and Sales, 1962. T.C. Pub. No. 114.
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3416
LEGAL COMPILATION—GENERAL
4.5 INTERIM GUIDELINES, EXECUTIVE OFFICE OF THE
PRESIDENT'S COUNCIL ON ENVIRONMENTAL QUALITY
36 Fed. Reg. 7724 (1970)
COUNCIL ON
ENVIRONMENTAL
QUALITY
Statements on Proposed Fed-
eral Actions Affecting the En-
vironment
Guidelines
Notice is hereby given that the
Council on Environmental Quality
proposes, as provided in the interim
guidelines issued April 30, 1970, to
revise its guidelines on the prepara-
tion of detailed statements on pro-
posals for legislation and other major
Federal actions significantly affecting
the quality of the human environment
required by section 102(2) (C) of the
National Environmental Policy Act
(42 U.S.C. 4322 (2) (c)).
Prior to the adoption of the pro-
posed revisions,'consideration will be
given to any comments, suggestions,
or objections thereto which are sub-
mitted in writing to the Council on
Environmental Quality (722 Jackson
Place, NW., Washington, DC 20006),
Attention: General Counsel, within a
period of 45 days from the date of
publication of this notice in the FED-
ERAL REGISTER.
Dated: January 22, 1971.
STATEMENTS ON PROPOSED FEDERAL
ACTIONS AFFECTING THE ENVIRON-
MENT
GUIDELINES
1. Purpose. This memorandum pro-
vides guidelines to Federal depart-
ments, agencies, and establishments
for preparing detailed environmental
statements on proposals for legisla-
tion and other major Federal actions
significantly affecting the quality of
the human environment, as required
by section 102(2) (C) of the National
Environmental Policy Act (Public
Law 91-190) (hereafter "the Act").
Underlying the preparation of such
environmental statements is the man-
date of both the Act and Executive
Order 11514 (35 F.R. 4247) of March
5, 1970, that all Federal agencies, to
the fullest extent possible, direct their
policies, plans, and programs so as to
meet national environmental goals.
The objective of section 102(2) (c) of
the Act and of these guidelines is to
build into the agency decision making
process an appropriate and careful
consideration of the environmental
aspects of proposed action and to
assist agencies in implementing not
only the letter, but the spirit, of the
Act.
2. Policy. As early as possible and
in all cases prior to agency decision
concerning major action or a recom-
mendation or a favorable report on
legislation that significantly affects
the environment, Federal agencies
will, in consultation with other appro-
priate Federal, State, and local agen-
cies, assess in detail the potential en-
vironmental impact in order that ad-
verse effects are avoided, and environ-
mental quality is restored or en-
hanced, to the fullest extent practica-
ble. In particular, alternative actions
that will minimize adverse impact
should be explored and both the long-
and short-range implications to man,
his physical and social surroundings,
and to nature, should be evaluated in
order to avoid to the fullest extent
practicable undesirable consequences
for the environment.
3. Agency and OMB procedures.
(a) Pursuant to section 2(f) of Exec-
utive Order 11514, the heads of Fed-
eral agencies have been directed to
proceed with measures required by
section 102(2) (C) of the Act. Conse-
quently, each agency will establish, in
consultation with the Council on En-
-------
GUIDELINES AND REPORTS
3417
vironmental Quality, no later than
June 1, 1970 (and, with respect to re-
quirements imposed by revisions in
these guidelines, by May 1, 1971) its
own formal procedures for (1) iden-
tifying those agency actions requiring
environmental statements, the appro-
priate time prior to decision for the
consultations required by section
102(2) (C), and the agency review
processes for which environmental im-
pact statements are to be available,
(2) obtaining information required in
their preparation, (3) designating the
officials who are to be responsible for
the statements, (4) consulting with
and taking account of the comments
of appropriate Federal, State, and
local agencies, and (5) meeting the
requirements of section 2(b) of Exec-
utive Order 11514 for providing timely
public information on Federal plans
and programs with environmental im-
pact including procedures responsive
to section 12 of these guidelines. These
procedures should be consonant with
the guidelines contained herein. Each
agency should file seven (7) copies of
all such procedures with the Council
on Environmental Quality, which will
provide advice to agencies in the prep-
aration of their procedures and guid-
ance on the application and interpre-
tation of the Council's guidelines.
(b) Each Federal agency shoulc
consult, with the assistance of the
Council on Environmental Quality anc
the Office of Management and Budge
if desired, with other appropriate Fed
eral agencies in the development o:
the above procedures so as to achieve
consistency in dealing with similar ac
tivities and to assure effective coordi
nation among agencies in their review
of proposed activities.
(c) It is imperative that existing
mechanisms for obtaining the views o
Federal, State, and local agencies or
proposed Federal actions be utilize^
to the extent practicable in dealing
with environmental matters. The Of
fice of Management and Budget wil
ssue instructions, as necessary, to
ake full advantage of existing mech-
anisms (relating to procedures for
handling legislation, preparation of
budgetary material, new policies and
n-ocedures, water resource and other
projects, etc.).
4. Federal agencies included. Sec-
tion 102(2) (C) applies to all agencies
of the Federal Government with re-
spect to recommendations or reports
on proposals for (i) legislation and
(ii) other major Federal actions sig-
nificantly affecting the quality of the
human environment. The phrase "to
the fullest extent possible" in section
102(2) (C) is meant to make clear
that each agency of the Federal Gov-
ernment shall comply with the re-
quirement unless existing law appli-
cable to the agency's operations ex-
pressly prohibits or makes compliance
impossible. (Section 105 of the Act
provides that "The policies and goals
set forth in this Act are supplemen-
tary to those set forth in existing au-
thorizations of Federal agencies.")
5. Actions included. The following
criteria will be employed by agencies
in deciding whether a proposed action
requires the preparation of an envi-
ronmental statement:
(a) "Actions" include but are not
limited to:
(i) Recommendations or reports re-
lating to legislation and appropria-
tions ;
(ii) Projects and continuing activi-
ties;
Directly undertaken by Federal
agencies ;
Supported in whole or in part
through Federal contracts, grants,
subsidies, loans, or other forms of
funding assistance;
Involving a Federal lease, permit,
license, certificate, or other en-
titlement for use;
(iii) Policy, regulations—and pro-
cedure-making.
(b) The statutory clause "major
Federal actions significantly affecting
-------
3418
LEGAL COMPILATION—GENERAL
the quality of the human environ-
ment" is to be construed by agencies
with a view to the overall, cumulative
impact of the action proposed (and of
further actions contemplated). Such
actions may be localized in their im-
pact, but if there is potential that the
environment may be significantly af-
fected, the statement is to be pre-
pared. Proposed actions the environ-
mental impact of which is likely to be
highly controversial should be covered
in all cases. In considering what con-
stitutes major action significantly
affecting the environment, agencies
should bear in mind that the effect of
many Federal decisions about a proj-
ect or complex of projects can be in-
dividually limited but cumulatively
considerable. This can occur when one
or more agencies over a period of
years puts into a project individually
minor but collectively major resources,
when one decision involving a limited
amount of money is a precedent for
action in much larger cases or repre-
sents a decision in principle about a
future major course of action, or when
several Government agencies individ-
ually make decisions about partial
aspects of a major action. The lead
agency should prepare an environ-
mental statement if it is reasonable
to anticipate a cumulatively signifi-
cant impact on the environment from
the Federal action.
(c) Section 101 (b) of the Act indi-
cates the broad range of aspects of
the environment to be surveyed in any
assessment of significant effect. The
Act also indicates that adverse sig-
nificant effects include those that de-
grade the quality of the environment,
curtail the range of beneficial uses of
the environment, observe short-term,
to the disadvantage of long-term, en-
vironmental goals. Significant effects
can also include actions which may
have both beneficial and detrimental
effects, even if, on balance, the agency
believes that the effect will be benefi-
cial. Significant adverse effects on the
quality of the human environment in-
clude both those that directly affect
human beings and those that indi-
rectly affect human beings through
adverse effects on the environment.
(d) Because of the Act's legislative
history, the regulatory activities con-
curred in or taken by the Environ-
mental Protection Agency are not
deemed actions which require the
preparation of an environmental state-
ment under section 102(2) (C) of the
Act.
6. Recommendations or reports on
proposals for legislation. The require-
ment for following the section 102(2)
(C) procedure as elaborated in these
guidelines applies to both (i) agency
recommendations on their own pro-
posals for legislation and (ii) agency
reports on legislation initiated else-
where. (In the latter case only the
agency which has primary responsi-
bility for the subject matter involved
will prepare an environmental state-
ment.) The Office of Management and
Budget will supplement these general
guidelines with specific instructions
relating to the way in which the sec-
tion 102(2) (C) procedure fits into its
legislative clearance process.
7. Content of environmental state-
ment, (a) The following points are to
be covered:
(i) The probable impact of the pro-
posed action on the environment, in-
cluding impact on ecological systems
such as wildlife, fish and marine life.
Both primary and secondary signifi-
cant consequences for the environment
should be included in the analysis.
For example, the implications, if any,
of the action for population distribu-
tion or concentration should be esti-
mated and an assessment made of the
effect of any possible change in popu-
lation patterns upon the resource base,
including land use, water, and public
services, of the area in question.
(ii) Any probable adverse environ-
mental effects which cannot be avoided
(such as water or air pollution, dam-
-------
GUIDELINES AND REPORTS
3419
age to life systems, urban congestion,
threats to health or other conse-
quences adverse to the environmental
goals set out in section 101 (b) of the
Act).
(iii) Alternatives to the proposed
action (section 102(2) (D) of the Act
requires the responsible agency to
"study, develop and describe appro-
priate alternatives to recommended
courses of action in any proposal
which involves unresolved conflicts
concerning alternative uses of avail-
able resources"). A rigorous explora-
tion and objective evaluation of alter-
native actions that might avoid some
or all of the adverse environmental
effects is essential. Sufficient analysis
of such alternatives and their costs
and impact on the environment
should accompany the proposed action
through the agency review process in
order not to foreclose prematurely op-
tions which might have less detri-
mental effects.
(iv) The relationship between local
short-term uses of man's environment
and the maintenance and enhance-
ment of long-term productivity. This
in essence requires the agency to
assess the action for cumulative and
long-term effects from the perspective
that each generation is trustee of the
environment for succeeding genera-
tions.
(v) Any irreversible and irretrieva-
ble commitments of resources which
would be involved in the proposed ac-
tion should it be implemented. This
requires the agency to identify the ex-
tent to which the action curtails the
range of beneficial uses of the envi-
ronment.
(vi) Where appropriate, a discus-
sion of problems and objections raised
by other Federal agencies and State
and local entities in the review process
and the disposition of the issues in-
volved. (This section may be added at
the end of the review process in the
final text of the environmental state-
ment.) ;
(b) With respect to water quality
aspects of the proposed action which
have been previously certified by the
appropriate State or interstate organ-
ization as being in substantial com-
pliance with applicable water quality
standards, the comment of the Envi-
ronmental Protection Agency will also
be required. [Mere reference to the
previous certification is sufficient.]
(c) In addition to these rules, the
Administrator of the Environmental
Protection Agency shall comply with
the provisions of section 309 of the
Clean Air Amendments of 1970 (42
U.S.C. 1857 et seq.).
(d) Each environmental statement
should be prepared in accordance with
the precept in section 102(2) (A) of
the Act that all agencies of the Fed-
eral Government "utilize a systematic,
interdisciplinary approach which will
insure the integrated use of the natu-i
ral and social sciences and the envi-
ronmental design arts in planning and
decision making which may have as
impact on man's environment."
(e) Appendix 1 prescribes the form
of the summary sheet which should
accompany each draft and final envi-
ronmental statement.
8. Federal agencies to be consulted
in connection with preparation of en-
vironmental statement. At the earliest
point at which possible action requir-
ing an environmental statement has
been identified but prior to agency de-
cision as to that action, the Federal
agency considering the action, on the
basis of information for which it
takes responsibility, should consult
with, and obtain the comment on the
environmental impact of the action of,
Federal agencies with jurisdiction by
law or special expertise with respect
to any environmental impact involved.
These Federal agencies include com-
ponents of (depending on the aspect
or aspects of the environment in-
volved) ;
-------
3420
LEGAL COMPILATION—GENERAL
Department of Agriculture.
Department of Commerce.
Department of Defense.
Department of Health, Education, and
Welfare.
Department of Housing and Urban Devel-
opment.
Department of the Interior.
Department of State.
Department of Transportation.
Atomic Energy Commission.
Federal Power Commission.
Environmental Protection Agency.
Office of Economic Opportunity.
For actions specially affecting the en-
vironment of their geographic juris-
dictions, the following Federal agen-
cies are also to be consulted:
Tennessee Valley Authority.
Appalachian Regional Commission.
National Capital Planning Commission.
Agencies obtaining comment should
determine which one or more of the
above listed agencies are appropriate
to consult on the basis of the areas of
of expertise identified in Appendix 2
to these guidelines. It is recommended
that the above listed departments and
agencies establish contact points for
providing comments on the environ-
mental impact of proposed actions de-
scribed in draft environmental state-
ments and that departments from
which comment is solicited, coordinate
and consolidate the comments of their
component entities. The requirement
in section 102(2) (C) to obtain com-
ment from Federal agencies having
jurisdiction or special expertise is in
addition to any specific statutory obli-
gation of any Federal agency to coor-
dinate or consult with any other Fed-
eral or State agency. Agencies seek-
ing comment may establish time limits
of not less than 30 days for reply,
after which it may be presumed, un-
less the agency consulted requests a
specified extension of time, that the
agency consulted has no comment to
make.
9. Use of statements in agency re-
view processes; distribution to Coun-
cil on Environmental Quality, (a)
Agencies will need to identify at what
stage or stages of a series of actions
relating to a particular matter the
environmental statement procedures
of this directive will be applied. It
will often be necessary to use the pro-
cedures both in the development of a
national program and in the review of
proposed projects within the national
program. However, where a grant-in-
aid program does not entail prior ap-
proval by Federal agencies of specific
projects, the view of Federal, State,
and local agencies in the legislative,
and possibly appropriation, process
may have to suffice. The principle to
be applied is to obtain views of other
agencies at the earliest feasible time
in the development of program and
project proposals. Care should be exer-
cised so as not to duplicate the clear-
ance process, but when actions being
considered differ significantly from
those that have already been reviewed
an environmental statement should be
provided.
(b) Ten (10) copies of draft envi-
ronmental statements (when pre-
pared), ten (10) copies of all com-
ments received thereon (when re-
ceived), and ten (10) copies of the
final text of environmental statements
should be supplied to the Council on
Environmental Quality in the Execu-
tive Office of the President (this will
serve as making environmental state-
ments available to the President). It
is important that draft environmental
statements bs prepared and circulated
for comment and furnished to the
Council early enough in the agency
review process before an action is
taken in order to permit meaningful
consideration of the environmental
issues involved. To the fullest extent
possible, no administrative action sub-
ject to section 102(2) (C) is to be
taken sooner than ninety (90) days
after a draft environmental statement
has been circulated for comment, fur-
nished to the Council and made avail-
able to the public pursuant to section
12 of these guidelines, or sooner than
-------
GUIDELINES AND REPORTS
3421
thirty (30) days after the final text
of a statement (together with com-
ments) has been made available to
the Council and the public. With re-
spect to recommendations or reports
on proposals for legislation to which
section 102(2) (C) applies, the final
text of the environmental statement
should be available to the Congress
and the public in advance of any rele-
vant Congressional hearings.
10. State and local review. Where
no public hearing has been held on the
proposed action at which the appro-
priate State and local review has been
invited, and where review of the pro-
posed action by State and local agen-
cies authorized to develop and enforce
environmental standards is relevant,
such State and local review shall be
provided for as follows:
(a) For direct Federal development
projects and projects assisted under
programs listed in Attachment D of
the Office of Management and Budget
Circular No. A-95, review by State
and local governments will be through
procedures set forth under Part 1 of
Circular No. A-95.
(b) State and local review of
agency procedures, regulations, and
policies for the administration of Fed-
eral programs of assistance to State
and local governments will be con-
ducted pursuant to procedures estab-
lished by the Office of Management
and Budget Circular No. A-85.
(c) Where these procedures are not
appropriate and where the proposed
action affects matters within their
jurisdiction, review of the proposed
action by State and local agencies au-
thorized to develop and enforce envi-
ronmental standards and their com-
ments on the environmental impact of
the proposed action may be obtained
directly or by distributing the draft
environmental statement to the appro-
priate State, regional, and metropoli-
tan clearinghouses.
11. Application of section 102(2)
(C) procedure to existing projects anc
orograms. To the fullest extent possi-
ble the section 102(2) (C) procedure
should be applied to further major
Federal actions having a significant
effect on the environment even though
they arise from projects or programs
initiated prior to enactment of the
Act on January 1, 1970. Where it is
not practicable to reassess the basic
course of action, it is still important
that further incremental major ac-
tions be shaped so as to minimize ad-
verse environmental consequences. It
is also important in further action
that account be taken of environmen-
tal consequences not fully evaluated
at the outset of the project or pro-
gram.
12. Availability of environmental
statements and comments to public.
(a) In accord with the policy of the
National Environmental Policy Act
and Executive Order 11514 agencies
have a responsibility to develop pro-
cedures to insure the fullest practica-
ble provision of timely public informa-
tion and understanding of Federal
plans and programs with environmen-
tal impact in order to obtain the views
of interested parties. These proce-
dures shall include, whenever appro-
priate, provision for public hearings,
and shall provide the public with rele-
vant information, including informa-
tion on alternative courses of action.
(b) The agency which prepared the
environmental statement is responsi-
ble for making such statement and the
comments received available to the
public pursuant to the provisions of
the Freedom of Information Act (5
U.S.C. sec. 552) without regard to the
exclusion of interagency memoranda
therefrom. With respect to recommen-
dations or reports on proposals for
legislation, the environmental state-
ment and comments should be made
available to the public at the same
time they are furnished to the Con-
gress. With respect to administrative
actions, except where advance public
disclosure will result in significantly
-------
3422
LEGAL COMPILATION—GENERAL
increased costs of procurement to the
Government, the draft environmental
statement should be made available to
the public at the same time it is cir-
culated for comment and furnished to
the Council, and the final text of the
statement and comments received
should be made available to the public
when furnished to the Council. Agen-
cies which hold hearings on proposed
administrative actions or legislation
should make the draft environmental
statements available to the public
fifteen (15) days prior to the time of
the relevant hearings. Agencies shall
institute appropriate procedures to
implement those requirements for
public availability of environmental
statements and comments thereon.
These shall include arrangements for
availability of the draft and final texts
of environmental statements and com-
ments at the head and appropriate
regional offices of the responsible
agency and at appropriate State, re-
gional, and metropolitan clearing-
houses.
13. Supplementary guidelines, eval-
uation of procedures, (a) The Council
on Environmental Quality after exam-
ining environmental statements and
agency procedures with respect to
such statements will issue such sup-
plements to these guidelines as are
necessary.
(b) Agencies will continue to
assess their experience in the imple-
mentation of the section 102 (2) (C)
provisions of the Act and in conform-
ing with these guidelines and report
thereon to the Council on Environ-
mental Quality by December 1, 1971.
Such reports should include an iden-
tification of problem areas and sug-
gestions for revision or clarification
of these guidelines to achieve effective
coordination of views on environmen-
tal aspects (and alternatives, where
appropriate) of proposed actions with-
out imposing unproductive adminis-
trative procedures.
RUSSELL E. TRAIN,
Chairman.
APPENDIX 1
FORM OF THE SUMMARY SHEET WHICH SHOULD
ACCOMPANY EACH DRAFT AND FINAL ENVIRON-
MENTAL STATEMENT
There should be a summary statement of
no more than one page containing the fol-
lowing: information:
1. Date of the statement.
2. Indication whether statement is draft or
final.
3. A complete listing of all Federal, State,
and local agencies from which comments have
been received.
4. The first three items (environmental im-
pact, adverse environmental effects which can-
not be avoided, alternatives) of the five re-
quired under Section 102(2) (C) should be
briefly summarized.
5. The summary should show whether the
proposed action is (a) legislative (proposed
legislation or report on legislation) or (b)
administrative.
APPENDIX 2
FEDERAL AGENCIES WITH JURISDICTION BY LAW
OR SPECIAL EXPERTISE TO COMMENT ON VARI-
OUS TYPES OF ENVIRONMENTAL IMPACTS
AIR
Air Quality and Air Pollution Control
Environmental Protection Agency—
Air Pollution Control Office.
Department of the Interior—
Bureau of Mines (fossil and gaseous fuel
combustion).
Bureau of Sport Fisheries and Wildlife
(wildlife).
Department of Transportation—
Assistant Secretary for Systems Develop-
ment and Technology (auto emissions).
Federal Aviation Administration (aircraft
emissions).
Weather Modification
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration.
Department of the Interior—
Bureau of Reclamation.
ENERGY
Environmental Aspects of Electric Energy
Generation
Atomic Energy Commission (nuclear power).
-------
GUIDELINES AND REPORTS
3423
Environmental Protection Agency—
Water Quality Office.
Air Pollution Control Office.
Department of Agriculture—•
Rural Electrification Administration (rural
areas).
Federal Power Commission (hydro facilities
and transmission lines).
Department of Housing and Urban Develop-
ment (urban areas).
Department of the Interior—(facilities and
Government lands).
Natural Gas Energy Development Generation
Federal Power Commission.
Department of the Interior—
Geological Survey, Office of Oil and Gas.
HAZARDOUS SUBSTANCES
Toxic Materials
Department of Health, Education, and Wel-
fare-
Food and Drug Administration.
National Institutes of Health.
Environmental Protection Agency.
Department of Agriculture—
Agricultural Research Service.
Department of Defense.
Pesticides
Environmental Protection Agency—
Office of Pesticides.
Department of Agriculture—
Agricultural Research Service (biological
controls, food and fiber production).
Department of the Interior—
Bureau of Sport Fisheries and Wildlife (ef-
fects on fish and wildlife).
Herbicides
Department of Agriculture—
Agricultural Research Service.
Forest Service.
Soil Conservation Service.
Environmental Protection Agency—
Office of Pesticides.
Transportation and Handling of Hazardous
Materials
Interstate Commerce Commission.
Department of Defense—
Armed Services Explosive Safety Board.
Department of Transportation—
Federal Highway Administration Bureau of
Motor Carrier Safety.
Federal Railroad Administration.
Federal Aviation Administration.
Assistant Secretary for Systems Develop-
ment and Technology.
Office of Hazardous Materials.
Office of Pipeline Safety.
Environmental Protection Agency (hazardous
substances).
Atomic Energy Commission (radioactive sub-
stances).
LAND USE AND MANAGEMENT
Coastal Areas: Wetlands, Estuaries, Water-
fowl Refuges, and Beaches
Department of Transportation—
Coast Guard (bridges, navigation).
Department of Defense—
Army Corps of Engineers (beaches, dredge
and fill permits, Refuge Act permits).
Department of the Interior—
Bureau of Sport Fisheries and Wildlife.
U.S. Geological Survey (coastal geology).
Bureau of Outdoor Recreation (beaches).
Department of Commerce—-
National Oceanic and Atmospheric Admin-
istration.
Bureau of Commercial Fisheries.
Department of Agriculture—
Soil Conservation Service (soil stability,
hydrology).
Environmental Protection Agency—
Water Quality Office.
Department of Housing and Urban Develop-
ment (urban aspects).
Historic and Archeological Sites
Advisory Council on Historic Preservation.
Department of the Interior-—
National Park Service.
Department of Housing and Urban Develop-
ment (urban areas).
Flood Plains and Watersheds
Department of Agriculture—
Agricultural Stabilization and Research
Service.
Soil Conservation Service.
Forest Service.
Department of the Interior—
Bureau of Reclamation.
U.S. Geological Survey.
Department of Housing and Urban Develop-
ment (urban areas).
Department of Defense—
Army Corps of Engineers.
Mineral Land Reclamation
Department of the Interior—
Bureau of Mines.
Bureau of Land Management.
U.S. Geological Survey,
Department of Agriculture—
Forest Service.
Parks, forests, and Outdoor Recreation
Areas
Department of the Interior—
Bureau of Land Management.
National Park Service.
Bureau of Outdoor Recreation.
Bureau of Sport Fisheries and Wildlife.
-------
3424
LEGAL COMPILATION—GENERAL
Department of Agriculture—
Forest Service.
Department of Housing and Urban Develop-
ment (urban areas),
Soil and Plant Life, Sedimentation, Erosion
and Hydrologic Conditions
Department of Agriculture—
Soil Conservation Service.
Agricultural Research Service.
Forest Service.
Department of Defense—
Corps of Engineers (dredging, aquatic
plants).
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration (national oceans survey).
Department of the Interior—
Bureau of Land Management.
Bureau of Reclamation.
NOISE
Noise Control and Abatement
Department of Transportation—
Assistant Secretary for Systems Develop-
ment and Technology.
Office of Noise Abatement.
Federal Aviation Administration.
Environmental Protection Agency.
Department of Housing and Urban Develop-
ment (urban land use aspects, building
materials standards).
PHYSIOLOGICAL HEALTH AND HUMAN WELL
BEING
Chemical Contamination and Food
Products
Department of Health, Education, and Wel-
fare—
Food and Drug Administration (food, drugs,
cosmetics).
Environmental Protection Agency—
Office of Pesticides (economic poisons).
Food Additives and Food Sanitation
Department of Health, Education, and Wel-
fare—-
Food and Drug Administration.
Environmental Protection Agency—
Office of Pesticides (economic poisons, e.g.,
pesticide residues).
Department of Agriculture—
Consumer Marketing Service (meat and
poultry products).
Microbiological Contamination
Department of Health, Education, and Wel-
fare-
Food and Drug Administration.
Radiation and Radiological Health
Atomic Energy Commission.
Department of Health, Education, and Wel-
fare-
National Institute of Environmental Health
Sciences.
Environmental Protection Agency—
Office of Radiation.
Department of the Interior—
Bureau of Mines (uranium mines).
Sanitation and Waste Systems
Department of Health, Education, and Wel-
fare-
National Institute of Environmental Health
Sciences.
Health Services and Mental Health Admin-
istration.
Environmental Protection Agency—
Solid Waste Office.
Water Quality Office.
Department of Transportation—
U.S. Coast Guard (ship sanitation).
Department of the Interior—
Bureau of Mines (mineral waste and re-
cycling, mine acid wastes).
Shellfish Sanitation
Department of Commerce—
Bureau of Commercial Fisheries.
National Oceanic and Atmospheric Admin-
istration.
Department of Health, Education, and Wel-
fare—
Food and Drug Administration.
Environmental Protection Agency.
' TRANSPORTATION
Air
Environmental Protection Agency—
Air Pollution Control Office.
Department of Transportation—
Federal Aviation Administration.
Water
Environmental Protection Agency—
Water Quality Office.
Department of the Interior—
Bureau of Outdoor Recreation.
Bureau of Sport Fisheries and Wildlife.
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration.
Department of Defense—
Army Corps of Engineers.
Department of Transportation—
Coast Guard.
Land
Department of Transportation—
Federal Highway Administration.
Federal Railroad Administration.
Urban Mass Transportation Administration.
-------
GUIDELINES AND REPORTS
3425
Congestion in Urban Areas, Housing and
Building Displacement
Department of Transportation—
Urban Mass Transportation Administration.
Federal Highway Administration.
Department of Health, Education, and Wel-
fare—
Health Services and Mental Health Ad-
ministration.
Office of Economic Opportunity.
Department of Housing and Urban Develop-
ment.
Department of the Interior-
Bureau of Outdoor Recreation.
Environmental Effects With Special Impact In
Low-Income Neighborhoods
Office of Economic Opportunity.
Department of Housing1 and Urban Develop-
ment (urban areas).
Department of Commerce (economic develop-
ment areas).
Economic Development Administration.
Rodent Control
Department of Health, Education, and Wel-
fare-
Health Services and Mental Health Admin-
istration.
Department of Housing and Urban Develop-
ment (urban areas).
Department of the Interior—
Bureau of Sport Fisheries and Wildlife.
Urban Planning
Department of Transportation—
Federal Highway Administration.
Department of Housing and Urban Develop-
ment.
Environmental Protection Agency.
Department of Commerce—
Economic Development Administration.
Water Quality and Water Pollution Control
Department of the Interior—
Bureau of Reclamation.
Bureau of Mines.
Bureau of Land Management.
Bureau of Sports Fisheries and Wildlife.
Bureau of Outdoor Recreation.
Office of Saline Water.
Environmental Protection Agency—
Water Quality Office.
Department of Defense—
Navy (ship pollution control).
Army Corps of Engineers (Refuse Act per-
mits).
Department of Transportation—
Coast Guard (oil spills, ship sanitation).
Oceanography
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration.
Department of Transportation—
Coast Guard,
WILDLIFE
Environmental Protection Agency.
Department of the Interior—
Bureau of Sports Fisheries and Wildlife.
-------
3426
LEGAL COMPILATION—GENERAL
FEDERAL AGENCY OFFICES FOR RECEIVING AND
COORDINATING COMMENTS UPON ENVIRONMENTAL
IMPACT STATEMENTS
Agency
Department of Agriculture
Appalachian Regional Commission .......
Department of the Army (Corps of Engi-
neers ) .
Atomic Energy Commission
Department of Commerce
Department of Defense .
Environmental Protection Agency
Federal Power Commission
General Services Administration
Department of Health, Education, and Wel-
fare.
Department of Housing and Urban Devel-
opment.1
Contact
Dr. T. C. Byerly, Office of the Secretary, 388-
7803.
Orville H. Lerch, Alternate Federal Co-Chair-
man, 967-4103.
Colonel J. B. Newman, Executive Director of
Civil Works, Office of the Chief of Engineers,
693-7168.
For Non-Regulatory Matters: Joseph J. Di-
Nunno, Director, Office of Environmental
Affairs, 973-5391.
For Regulatory Matters: Christopher L. Hen-
derson, Assistant Director for Regulation,
973-7531.
Dr. Sydney R. Galler, Deputy Assistant Secre-
tary for Environmental Affairs, 967-4335.
Dr. Louis M. Rousselot, Assistant Secretary of
Defense (Health and Environment), 697—
2111.
Robert Hayward, Environmental Protection
Agency, 632-7692.
Frederick H. Warren, Commission's Advisor
on Environmental Quality, 386-6084.
Rod Kreger, Deputy Administrator, 343-6077.
Donald Bliss, Assistant to the Secretary, 962-
4742.
Charles Orlebeke, Deputy Under Secretary,
755-6960.
Alternate Contact, George Wright, Office of
Deputy Under Secretary, 755-8192.
1 Contact the Deputy Under Secretary with
regard to environmental impacts of legislation,
policy statements, program regulations and
procedures and precedent^making project de-
cisions. For all other HUD consultation, con-
tact the HUD Regional Administrator in whose
jurisdiction the project lies, as follows:
James J. Barry, Regional Administrator I,
Attn: Environmental Clearance Office, Room
405, John F. Kennedy Federal Building,
Boston, MA 02203 (617-223-4066).
S. William Green, Regional Administrator II,
Attn: Environmental Clearance Office, 26
Federal Plaza, New York, NY 10007 (212-
264-8068).
Warren P. Phelan, Regional Administrator III,
Attn: Environmental Clearance Office, Curtis
Building, Sixth and Walnut Streets, Phila-
delphia, PA 19106 (216-597-2560).
Edward H. Baxter, Regional Administrator
IV, Attn: Environmental Clearance Office,
Peaehtree—Seventh Building, Atlanta, GA
30323 (404-526-S585).
Don Morrow (Acting), Regional Administra-
tor V, Attn: Environmental Clearance Of-
fice, 360 North Michigan Avenue, Chicago,
IL 60601 (312-353-5680).
-------
GUIDELINES AND REPORTS
3427
Department of Housing and Urban Devel-
opment 1—Continued
Department of the Interior
Interstate Commerce Commission
Office of Economic Opportunity
St. Lawrence Seaway Development Corpora-
tion.
Tennessee Valley Authority
Department of Transportation
Department of State
National Capital Planning Commission ...
Advisory Council on Historic Preservation..
Richard L. Morgan, Regional Administrator
VI, Attn: Environmental Clearance Office,
Federal Office Building, 819 Taylor Street,
Fort Worth, TX 76102 (817-334-2867).
Harry T. Morley, Jr., Regional Administrator
VII, Attn: Environmental Clearance Office,
911 Walnut Street, Kansas City, MO 64106
(816-374-2661).
Robert C. Rosenheim, Regional Administrator
VIII, Attn: Environmental Clearance Office,
Samsonite Building, 1050 South Broadway,
Denver, CO 80209 (303-837-4061).
Robert H. Baida, Regional Administrator IX,
Attn: Environmental Clearance Office, 450
Golden Gate Avenue, Post Office Box 36003,
San Francisco, CA 94102 (415-556-4752).
Oscar P. Pederson, Regional Administrator X,
Attn: Environmental Clearance Office, Roam
226, Arcade Plaza Building, Seattle, WA
98101 (206-583-5415).
Jack O. Horton, Special Assistant to the Sec-
retary, 343-6412.
Marten E. Foley, Assistant Managing Direc-
tor, 737-9765 x 434.
Frank Carlucci, Acting Director, 254-6000.
John B. Adams III, Chief Engineer, 962-1887.
Dr. Francis Gartrell, Director of Environ-
mental Research and Development, 615-766-
2002.
Michael S. Cafferty, Assistant Secretary for
Environment and Urban Systems, 426-4563.
Christian Herter, Jr., Special Assistant to the
Secretary for Environmental Affairs, 632-
7964.
Charles H. Conrad, Executive Director, 382-
1163.
Robert Garvey, Executive Director, 801 19th
Street NW., Suite 618, 343-8607.
[FR Doc. 71-1071 Filed 1-27-71; 8:45 am]
-------
3428 LEGAL COMPILATION—GENERAL
4.6 THE REPORT OF HEW AND EPA ON THE HEALTH
EFFECTS OF ENVIRONMENTAL POLLUTION, PURSU-
ANT TO TITLE V OF P.L. 91-515, H.R. DOC. NO. 92-241,
92ND CONGRESS, 2ND SESS. (1972)
ENVIRONMENTAL POLLUTION EFFECTS ON HEALTH
MESSAGE FROM THE PRESIDENT OP THE UNITED STATES
TRANSMITTING THE REPORT OF THE DEPARTMENT OF HEALTH, EDU-
CATION, AND WELFARE AND THE ENVIRONMENTAL PROTECTION
AGENCY ON THE HEALTH EFFECTS OF ENVIRONMENTAL POLLUTION,
PURSUANT TO TITLE V OF PUBLIC LAW 91-515
FEBRUARY 1, 1972.—Message and accompanying papers referred to the
Committee of the Whole House on the State of the Union and ordered to
be printed
To the Congress of the United States:
The Department of Health, Education and Welfare and the En-
vironmental Protection Agency have jointly studied the health
effects of environmental pollution in accordance with Title V of
Public Law 91-515. Their findings, which appear in this report,
deserve the attention of the Congress and of all Americans who
are concerned about environmental quality and its impact on the
health of our people.
This study gives further evidence of the need for new legisla-
tion in this vital field. I have forwarded to the Congress a number
of recommendations for meeting this challenge, and I again urge
that they be given early and favorable consideration. My proposals
include:
Toxic Substances Control Act of 1971.
Federal Environmental Pesticide Control Act of 1971.
The Department of Human Resources Act.
The Department of Natural Resources Act.
Marine Protection Act of 1971.
Noise Control Act of 1971.
Health Maintenance Organization Assistance Act of 1971.
These measures, together with proposals which were contained
in my Health Message of February 18, 1971, and my Environmen-
tal Message of February 8, 1971, and other actions which I will
propose to the Congress this year, would, in my view, provide the
essential tools for dealing with the health effects of environmental
pollution in the years ahead.
This report identifies important needs concerning the determi-
nation of hazards to human health and safety resulting from com-
-------
GUIDELINES AND REPORTS 3429
mon environmental pollution. It also sets forth a number of spe-
cific recommendations for meeting these problems. I am directing
the Secretary of Health, Education, and Welfare and the Adminis-
trator of the Environmental Protection Agency to see that these
needs are promptly and thoroughly addressed.
As I take this action, I would also note that impressive progress
has already been made in coordinating the efforts of these two
agencies. For example, the joint establishment of the National
Center for Toxicological Research will do much to improve our
knowledge in this area. I would also point out that the Director of
the Office of Science and Technology, in cooperation with the
Chairman of the Council on Environmental Quality, has estab-
lished a new interagency panel to improve the coordination and
utilization of environmental health research, and that we have
been taking a number of other steps to improve the surveillance
and monitoring of environmental hazards.
The problems which this report discusses cannot be addressed
effectively without the full attention and cooperation of both the
legislative and executive branches. I pledge that this administra-
tion will continue to give a high priority to the task of preventing
hazards to human health arising from environmental pollution,
and I look forward to working closely with the Congress in achiev-
ing this goal.
RICHARD NIXON.
THE WHITE HOUSE, January 31,1972.
Foreword
As required under Public Law 91-515 we have compiled for
transmission by the President to the Congress, a summary report
on studies and surveys on various aspects of the impact of envi-
ronmental pollution on our health, and what is being done and can
be done about it.
For the purposes of this initial report, primary emphasis is
given to those physical and chemical agents which have wide-
spread environmental dispersement and which are known or sus-
pected to cause adverse health effects. These agents, together with
bacterial and viral environmental contaminants, currently pose
identified threats to human health and welfare. Since there is a
long history of dealing with the known bacterial and viral agents,
this report is not directed to them.
As general knowledge of the adverse human health and welfare
effects of pollutants increases through ongoing surveillance and
-------
3430 LEGAL COMPILATION—GENERAL
research, additional agents and situations may well be found to
merit prime attention. These developments will be reflected in
succeeding reports.
Since the matters to be assessed and reported upon are under
the purview of both the Department of HEW and the EPA, both
agencies assigned appropriate representatives to assemble the re-
quested information. The Surgeon General of the United States
PHS, HEW, and the Assistant Administrator for Research and
Monitoring, EPA, directed the preparation of the report which is
endorsed by both agencies.
The first annual report of the Council on Environmental Qual-
ity, transmitted to the Congress in August, 1970, in discussing the
health effects of environmental deterioration, said:
The impact of environmental deterioration on
health is subtle, often becoming apparent only after the
lapse of many years. The speed of change in a rapidly
altering technological society and the complex causes of
many environmental health problems produce major un-
certainty about what environmental changes do to human
well-being. Nevertheless, it is clear that today's environ-
ment has a large and adverse impact on the physical and
emotional health of an increasing number of Americans.
Air pollution has been studied closely over the
past 10 years, and its tie to emphysema and chronic
bronchitis is becoming more evident. These two diseases
are major causes of chronic disability, lost workdays, and
mortality in industrial nations. Estimates of deaths at-
tributable to bronchitis and emphysema are beset with
doubts about cause; nevertheless, physicians have traced
18,000 more deaths in the United States to these two
causes in 1966 than 10 years earlier—an increase of two
and one-half times. * * *
[P. 7]
Whether the accumulation of radioactive fallout in
body tissues will eventually produce casualties cannot be
predicted now, but close surveillance is needed. Nor has a
direct correlation between factors in the urban environ-
ment and major malignancies of the digestive, respira-
tory, and urinary tracts been established. But the fre-
quency of these diseases is much higher in cities than in
nonurban environments.
This assessment of the situation is still valid. Several diseases
-------
GUIDELINES AND REPORTS 3431
are aggravated by chemical and physical pollutants but not enough
is known to assess the magnitude of this problem. Further defini-
tive research must be done on health effects of pollution.
This report, broadly, discusses the various ways in which indi-
viduals are exposed to environmental pollutants; the known and
suspected relationships of these pollutants to human diseases; the
assistance available to victims of pollution; the measures available
to reduce exposure of the individual to pollutants; the research
and evaluation efforts needed to assess and control pollutants.
POLLUTANTS—HUMAN EXPOSURE
CASES OP POLLUTION
Man has been exposed to environmental pollution since his ori-
gin. Volcanos and forest and grass fires have periodically thrust
tremendous amounts of gases and particulate matter into the air,
oil seeps and other exposed mineral deposits have fouled or poi-
soned the water. And ionizing radiation from the sun and radioac-
tive ore deposits have affected his body indirectly. Man's natural
processes have contributed to the pollutant burden. Since man
evolved under these stresses, he adapted to exist and thrive in
spite of them, and perhaps evolved because of them.
The burgeoning modern industrial society, however, threatens
to tip the balance the other way. Due to modern practices in this
country, wastes from over 50 million food animals concentrated in
feed lots and dairy farms pollute the waters and create disposal
problems rather than fertilize the fields; large amounts of man's
own bodily wastes are improperly treated and enter waters; auto-
mobiles and other gasoline-powered motor vehicles in the United
States discharge approximately 90 million tons of pollutants into
the air each year, and power plants and other industrial processes
pollute the air each year with another 75 million tons of gases and
other debris. Widespread use of thousands upon thousands of in-
dustrial and pesticidal chemicals have so contaminated the earth's
waters that man and animals from the most remote regions con-
tain deposits of some of them in their bodies.
Because of extremely widespread use in the United States of
high nitrate containing fertilizers and phosphate-based detergents,
and the ubiquity of other nitrate- and phosphate-rich pollutants,
many rivers and lakes are enriched so that unwanted water plant
growths choke out desirable aquatic life. Also, certain metals
(such as mercury) and pesticides (such as DDT) in the waters,
-------
3432 LEGAL COMPILATION—GENERAL
through industrial pollution, rainwater run-off, or other means
become greatly concentrated by a biological chain of events when
[P-8]
they enter the chain through the growth processes of water mi-
croorganisms, are concentrated when passed to aquatic animals,
then further concentrated when passed to predaceous fish and then
to man. Noise sources have proliferated with the growth of trans-
portation, with new musical vogues, and with industrial expan-
sion. Ionizing radiation from natural sources is augmented by that
from medical and industrial devices, weapons testing and other
sources. Also, the billions of gallons of water required by more
than 300,000 water-using industrial operations in the United
States each year not only gain pollutant burdens, but also undergo
temperature rises both of which have adverse effects when the
water is replaced into the environment from which it is drawn.
All of these forms of environmental pollution ultimately may
have an adverse impact on man. If the more palatable and nutri-
tious aquatic life forms are destroyed by polluted waters, he suf-
fers aesthetically, financially, and nutritionally. If his food, water,
or air contain residues of gases, particulate matter or persistent
chemicals, diseases may be caused or exacerbated. If he is exposed
to extremes of noise, adverse physiological and psychological
changes may occur. If he is subjected to excessive radiation, ill-
nesses are produced.
Clearly, there is need to abate or eliminate harmful amounts of
environmental pollutants and to control the addition of new pollu-
tants.
Pollutants and Human Exposure
The effect of pollutants on human health depends on the physi-
cal and chemical properties of the pollutant, on the duration, con-
centration and route of exposure, and on human uptake and me-
tabolism of the pollutant. Man's biological response is likewise a
function of occupational, psychosocial and climatological factors
and is tempered by the phenomena of tolerance and adaptation.
These exposure factors underlie attempts to understand the im-
pact of pollutant exposure on human health.
The physical and chemical properties of pollutants determine
their potential as a health hazard. These properties—including
size, density, viscosity, shape, electrical charge, volatility, solubil-
ity and chemical reactivity—all affect the absorption, retention,
and toxicity of pollutants. Many pollutants do not retain their
-------
GUIDELINES AND REPORTS 3433
exact identities after entering the environment. Thermal, chemical
and photochemical reactions occur when pollutants move through
the environment from source to receptor. These factors affect the
final physical or chemical state at the point of human exposure
and help determine the toxic potential of the pollutants.
The duration and concentration of exposure are measures of the
total dose to the human. The rate at which the total dose is re-
ceived may influence the response. The acute effects of short-lived
peak exposures to pollutants are more dramatic and more easily
attributed to exposure than chronic disorders which may follow
long-term exposure to low levels or combinations or mixtures of
pollutants. Pollutants enter the body through the respiratory or
gastrointestinal tract, the skin or mucous membranes. The same
substance such as fine particulate lead may be directly inhaled or
may be ingested after falling out on water or food supplies. Other
heavy metals and nondegradable organic compounds reach man
simultaneously through air, water and food.
[p. 9]
A biological effect may not be observed until the dose reaches a
certain level. This level is called the threshold dose and it may be
defined as the minimum dose required to produce a detectable
effect. The concept is important from both a practical and a theo-
retical point of view, since a true threshold implies that below a
given dose there is no adverse change whatsoever with regard to
toxic effect of substance studied; this allows a safe limit or stand-
ard to be specified. As one uses more sensitive responses, thres-
holds decrease. For example, illness frequently is a more sensitive
measure of response than death, and both will be preceded by
physiologic changes heralding the onset of disease. For some pollu-
tants, such as ionizing radiation, there may be no threshold for the
response.
The existence of a threshold may be due in part to the build-up
in man of a tolerance to the particular pollutant. Tolerance repre-
sents the ability of man to endure pollutant exposures without
apprarent ill effects. The level of tolerance to environmental
agents may be directly related to a number of characteristics
including age, sex, and nutritional state. The concept of adapta-
tion signifies an increase in tolerance with long-term low-level
exposure to a given adverse environment. Adaptation is character-
istically related to the stressful components of the environment.
The ability to adapt varies in a population and is determined by
-------
3434 LEGAL COMPILATION—GENERAL
anatomic, physiologic and biochemical characteristics of individual
organisms.
Physical-chemical interactions occur among the pollutants in the
environmental which in turn alter the biological activity of the
containments as well as the reactions within the tissues of man
and animals. The resulting bioeffects may be synergistic, additive
or antagonistic, resulting in a reaction whose magnitude is
greater, equal to, or less than the sum of the individual constitu-
ents.
From this brief discussion one can see that a large variety of
factors determines the extent to which any given pollutant will
produce adverse health effects. These complex factors should be
kept in mind when the relationship between pollution and disease
is discussed.
POLLUTANTS AND HUMAN DISEASE
Variations in Human Response
Relationships between human diseases and pollution exposures
are neither simple nor fully understood. Death and disease only
represent the extreme end of a spectrum of responses. One may
conveniently think of five biological response stages of increasing
severity as illustrated in Figure 1: (1) a tissue pollutant burden
not associated with other biological changes, (2) physiologic or
metabolic changes of uncertain significance, (3) physiologic or
metabolic changes that are clear-cut disease sentinels, (4) morbid-
ity or disease, and (5) mortality or death. Boundaries between
categories may occasionally overlap. Furthermore, each category
shows a range of responses rather than a simple all or none phe-
nomenon.
[p. 10]
Some groups within the population may be especially susceptible
to environmental factors. Notably these include the very young,
the very old and those affected by a disease. This susceptibility
may be permanent or temporary. Inherited abnormalities such as
alpha-antitrypsin deficiency and abnormal hemoglobins are exam-
ples of permanently altered sensitivity. Temporary increased sen-
sitivity may be associated with periods of growth, with pregnancy
and with reversible illnesses.
Diseases commonly result from complex causal webs rather
than single factors. Environmental pollution may contribute a
number of strands to such webs. Other strands in these causal
webs may arise from such diverse origins as genetic heritage,
-------
GUIDELINES AND REPORTS 3435
nutritional status, and personal habits. Moreover, pollutant expo-
sure may influence the severity of disease without altering its
frequency.
Linking pollutant exposure to acute disease is usually less diffi-
cult than linking such exposures to chronic disease. Acute and
chronic pollution exposures may be associated with either acute or
chronic disease.
[p. ll]
When the effects of pollutant exposure are long delayed or de-
pendent upon events distantly separated in time, the causal rela-
tionship between pollutant exposures and disease can be most dif-
ficult to unravel. Likewise, it is difficult to assess the effects of
long-term low-level pollutant exposure. Carefully designed, sys-
tematic, coordinated laboratory, clinical and epidemiologic investi-
gations will be required to quantitate the effects of pollutant expo-
sures upon teratogenesis, mutagenesis, carcinogenesis and chronic
disease frequency and severity.
Variations in Environmental Factors
Community pollution by chemical and physical agents is only
one aspect of the total environmental role in disease. Other envi-
ronmental factors such as psycho-social stress, cultural milieu,
climate, occupation, cigarette smoking and diet are not specifically
discussed in this report except insofar as they are known factors
which must be accounted for when quantitating adverse health
effects of pollutants. Indeed human exposure to an agent fre-
quently involves community pollution and other environmental
factors. Undoubtedly non-pollutant environmental factors contrib-
ute a major share of disease causation, and for some diseases
society will derive a greater return from investment of its re-
sources in control of these non-pollutant factors. Non-inheritable
factors, considered broadly, probably account for 80 to 90 percent
of disease. Heritable factors, such as intrinsic biological longevity
also play significant roles in the health status of the population,
particularly if premature death and sickness are considered.
Occupational variables have been recognized as significant
health factors since Potts first description of scrotal cancer caused
by chimney soot in the 18th century. Occupational hazards have
been for the most part, associated with chemical and physical
agents, i.e., silica, chromate, asbestos, carbon monoxide, carbon
dioxide, uranium, arsenic, mercury, etc.
Psychosocial variables have, in recent years, gained much more
-------
3436 LEGAL COMPILATION—GENERAL
recognition in etiology (disease causation) than was the case 20
years ago. Most notable have been the studies relating heart dis-
ease to psychological and social factors. Socio-economic factors
determine place of residence, occupation, diet, and a variety of
other factors involved in disease manifestation.
Pollution and Disease in Perspective
What health benefits will be derived from control of environ-
mental pollution? Two kinds of health benefits may be considered
when assessing the impact of pollution control: (1) preventing
new cases of disease and (2) preventing aggravation of existing
disease. Pollution control should diminish the frequency and sever-
ity of acute respiratory disease, acute gastroenteric disease and
chemical intoxications of the central nervous system. Environmen-
tal aggravation of existing heart and lung diseases should also be
substantially reduced. The causes of our three major killers—•
[p. 12]
heart disease, cancer, and stroke—have not been identified, and
until further scientific knowledge is gained, one cannot quantitate
the impact of pollution control on these diseases.
Pollutants are firmly known to cause cancer only in tobacco
smokers and in special occupational situations, as illustrated by
cancer in asbestos workers or uranium workers. The contribution
of community pollution to cancer is unknown. Experimental ani-
mal studies suggest that some pollutants are carcinogenic, terato-
genic or mutagenic, but current knowledge is far too deficient to
allow us to quantitate the health impact of human exposure to
these pollutants.
The ultimate impact of pollution control on community health
remains to be determined. In general, persons with preclinical
manifestations though not yet ill are at greater risk of developing
chronic and disabling illnesses. But this principle does not neces-
sarily apply to all pollutant body burdens and pollutant-induced
physiologic changes. To infer a relationship between pollution bur-
dens and eventual clinical disease, we must gain more knowledge
about the causes of acute and chronic disease. Special attention
should be given to the role of environmental pollutants in this
research effort, for pollution control historically offers society an
effective means of responding to an identified health hazard. The
occasional water and food borne illness outbreaks that now occur
when environmental safeguards break down remind us of the need
for vigilance in monitoring and developing more effective environ-
mental controls.
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GUIDELINES AND REPORTS 3437
The point has now been made many times over that prevention
of ill-health and preservation of human well-being are far more
desirable than the burden of curing disease. Similarly, we have
been reminded that, all other arguments aside, prevention is un-
doubtedly far cheaper than is the process of curative medicine. We
have removed infectious disease as a major cause of illness and
death in this country. Many of the important non-infectious dis-
eases are classed as chronic, degenerative disease processes. Car-
diovascular diseases, cancer, some forms of kidney disease, and
rheumatoid type diseases, for example, are properly placed in this
category.
To the extent that exogenous agents can be identified which
bear some casual relationship to these diseases, these disease proc-
esses can be thought of and treated as environmental diseases. It
is the establishment of these relationships which environmental
health research is about and, of course, it is the promise of preven-
tion through the control of the distribution of the offending envi-
ronmental agents which makes this prospect attractive.
As an illustrative case study, the relationship between cancer
and exogenous or environmental agents is worth examining. Clues
as to extrinsic causes of human cancer have come from a handful
of sources. One is the accidental finding in the laboratory or in the
occupational setting of a variety of physical and chemical agents
which cause cancer. Another has been an examination of statisti-
[p. 13]
cal and epidemiological data. Figure 2 simply repeats the fact that
cancer in the United States has been taking the place of other
diseases as a cause of death since 1900.
We have already referred to the decline in infectious diseases as
a major cause of death. Hence, this might simply be thought of as
a reflection of a relative shift. Figure 3, however, suggests that
there has been an absolute increase in cancer deaths in the United
States since 1900 which cannot be entirely explained away as a
result of the rise in numbers in the population nor by the aging of
the population.
It is this "residual" increase for which environmental agents
have become suspect. There were over 300,000 deaths reported
from cancer in the United States last year. Cancer of the respira-
tory system has shown the most rapid rise ever recorded for a
non-infectious disease.
Another major clue about the environmental causation of cancer
has come from studies of cancer incidence among population
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3438 LEGAL COMPILATION—GENERAL
groups around the world and among those who migrate. The facts
emerging from these studies demonstrate, that, (1) there are
striking differences in cancer incidence from place to place in the
world (cancer of the esophagus is 100 times as frequent in some
countries as it is in the United States), and (2) when persons
[p. 14]
migrate, they appear to adopt the propensity for cancer which is
characteristic of their new home. (This finding has been noted for
other chronic degenerative diseases as well.) It is these facts plus
the large-scale distribution of elemental substances and com-
pounds in our industrialized environment which has made the
prospect of finding environmental causes of or contributors to
cancer so attractive.
Excess Episodic Mortality
Sudden exposure of populations to high levels of air pollution
has produced dramatic increases in mortality among those already
affected by chronic diseases. Two pollution episodes which re-
ceived widespread notice in recent years took place in Donora,
Pennsylvania in 1948, and London, England in 1952.
[p. 15]
Each of these episodes was characterized by a period of pro-
longed temperature inversion and an anti-cyclonic high pressure
system. This atmospheric condition placed an effective lid over
sources of pollution and prevented their dispersion.
In Donora, a town of 14,000, 15 to 20 deaths above those nor-
mally expected were attributed to the period of high air pollution.
The Public Health Service studied the population intensively two
months after the episode and found that 43 percent, or 5,900
residents, had been adversely affected, 10 percent severely. Among
persons with preexisting illness, 88 percent of asthmatics, 77 per-
cent of persons with heart disease and 79 percent of persons with
chronic bronchitis and emphysema were adversely affected. No
increase in mortality rates was experienced in subsequent years
among survivors who were ill or not ill during the episode.
In London in 1952 an air pollution episode lasted from Decem-
ber 5 to December 9 and was associated with 4,000 excess deaths.
Eighty-four percent of the excess mortality occurred among per-
sons with preexisting heart and lung disease. Mortality due to
chronic respiratory disease increased by ten fold. Non-specific su-
perficial inflammation of the larger bronchi was the most consist-
ent finding among those examined after death. Sickness claims
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GUIDELINES AND REPORTS 3439
made to the health insurance system increased by 108 percent
above average. During the episode 1,110 patients per day or 48
percent above normal, were admitted to the hospitals of Greater
London. Admissions for respiratory illness increased three fold.
Among patients with chronic respiratory disease, 36 percent were
affected during an episode and 2 percent died.
Increased concentrations of many pollutants were measured
during these air pollution episodes including increased amounts of
sulfur dioxide, hydrochloric acid, sulfuric acid, lead, arsenic, car-
bon monoxide, carbon dioxide, oxides of nitrogen, nitrous and
nitric acid, and particulate matter. Which of the various agents
produced the excess mortality and morbidity during the air pollu-
tion episodes is not known, but any one or possible combination of
many pollutants may have been responsible.
The consistency with which 5 to 20 percent increases in mortal-
ity have occurred during high air pollution episodes makes the
relationship between mortality and exposure very firm. However,
the importance of other determinants of mortality were not al-
ways accounted for in these episodes. Therefore, the level at which
air pollution produces an increase above expected mortality re-
mains to be established.
Residence in communities with persistent relatively high air
pollution has been associated with higher death rates from specific
diseases as well as increased total mortality when compared to
similar communities with lesser pollution. Studies of area differ-
ences in mortality are considerably more difficult than studies of
episodic mortality since many factors other than environmental
pollution can account for differences in mortality between various
areas of the country,
Chronic Obstructive Lung Disease
The chronic obstructive lung diseases, chronic bronchitis and
pulmonary emphysema, are now second only to heart disease as a
[p. 16]
leading cause of disability compensated by Social Security. Over
$90 million is paid annually to persons disabled by these diseases.
Between 30,000 and 40,000 persons in the United States die each
year from these diseases and an additional 50,000 to 60,000 deaths
occur in which they are mentioned as a contributory cause. Ten to
twenty million adults are affected and the prevalence ranges from
5 to 40 percent according to age, sex, and smoking habits.
Cigarette smoking is clearly the chief cause and explains about
90 percent of chronic obstructive lung diseases. Other contribu-
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3440 LEGAL COMPILATION—GENERAL
tory factors are older age, male sex, ethnic group, lower socioeeo-
nomic status and occupation. Environmental air pollution is asso-
ciated with a demonstrable excess of chronic respiratory disease
after adjusting for the effects of these contributory factors. The
pollutants implicated are sulfur oxides, nitrogen oxides and partic-
ulates. Similar findings from community surveys in different
countries reinforce this assertion. The English showed an increase
only among cigarette smokers. In the United States, studies con-
ducted by EPA's Community Health and Environmental Surveil-
lance System (CHESS) recently demonstrated excess chronic res-
piratory symptoms among nonsmokers as well as smokers in high
pollution areas. Early childhood exposure may be the most impor-
tant role for air pollution in the cause of chronic obstructive lung
disease. Children from high exposure areas apparently have a
greater risk of developing chronic lung disease in adulthood. Air
pollution certainly plays a role in aggravating the status of pa-
tients with chronic lung disease and may contribute to the severity
of symptoms in subjects who have already developed some form of
this disease.
Other Respiratory Diseases
Atmospheric sulfur oxides, particulates and photochemical oxi-
dants aggravate the frequency and severity of asthma symptoms
in persons with this disease. Other environmental factors includ-
ing season of year, climatic changes and aeroallergens are also
important determinants of asthma frequency. Control of air pollu-
tion should clearly benefit a substantial proportion of the U.S.
asthmatic population.
Acute respiratory diseases consistently rank first as a cause of
morbidity in the United States (2.2 illnesses/person/year). Am-
bient air pollutants such as suspended particulates, sulfur oxides
and nitrogen oxides have been associated with a significantly in-
creased frequency of acute respiratory disease (15 to 30 percent).
Recent studies conducted by EPA's Community Health and En-
vironmental Surveillance System (CHESS) in New York City and
in Birmingham, Alabama during high air pollution episodes
showed that families living in high exposure areas experienced
increased respiratory irritation symptoms, including cough, burn-
ing of throat or chest and shortness of breath. Symptom preva-
lences of 20 to 30 percent, similar to rates reported by heavy
cigarette smokers, occurred among all nonsmoking family mem-
bers and were two or three times those observed among nonsmok-
ers residing in low-exposure communities. These complaints were
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GUIDELINES AND REPORTS 3441
accompanied by more frequent calls or visits to physicians as well
as an increased number of persons reporting restricted activity.
Careful studies in England, Japan and the United States have
shown diminished pulmonary function in children residing in
[P. 17]
areas of moderate to high air pollution exposure. Studies of low
and elevated exposure communities have demonstrated that the
area differences in pulmonary function were greatest during
months when pollutant concentrations were highest. These differ-
ences could not be accounted for by differences in age, height,
social class, family size, or prior history of respiratory illness.
This group of exposed children is clearly entering adulthood with
a lowered pulmonary reserve capacity to withstand various adult
respiratory stresses such as cigarette smoking, occupational dust
exposure, and further exposure to air pollution.
Cardiovascular Disease, Primary Hypertension and Stroke
Cardiovascular diseases account for over half of all deaths in
the United States. Several identified risk factors include elevated
serum cholesteral levels, high blood pressure, obesity, cigarette
smoking, physical inactivity, family history of heart disease, .dia-
betes and personality and behavior patterns. Decreased lung func-
tion due to air pollution and increased sodium intake from pol-
luted waters can put a strain on the heart and cause exacerbation
of cardiovascular disease. Statistical associations between cardio-
vascular mortality and several chemical constituents of drinking-
water have been reported but definitive research on this problem
has not been conducted. Many risk factors associated with pri-
mary hypertension have not shown a consistent or firm pattern.
While race and geographic distribution of stroke suggest that
environmental, social, cultural and genetic factors may be opera-
ting, there is little information to identify specific environmental
or biological factors which may account for these different distri-
bution patterns.
Diseases of the Central Nervous System
Poisoning by pesticides and heavy metals can produce manifest
central nervous system toxicity. Large outbreaks of acute poison-
ing have occurred when such environmental pollutants have con-
taminated food or water supplies. Increased lead absorption is
endemic among children ages 1 to 6 living in urban America. New
York City reported 500 cases of lead poisoning in 1964, Baltimore
reported 1,337 cases from 1956 to 1964, and Chicago had 429 cases
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3442 LEGAL COMPILATION—GENERAL
in 1959-1961. The case fatality rate is about 5% and as much as
39 % of non-fatal cases have neurological sequelae such as sei-
zures, mental retardation, cerebral palsy, optic atrophy, and be-
havior problems. In general, there is insufficient evidence to quan-
titate the relationship of environmental pollutants to central nerv-
ous system morbidity and mortality.
Carcinogenesis
Over 325,000 people die of cancer each year. It is the second
major cause of death in the United States. While precise assess-
ment of the contribution of environmental pollution is difficult,
there is strong evidence that environmental factors have a signifi-
cant role in cancer production. This evidence consists of:
1. The results of studies of people who have migrated from one
part of the globe to the other. In general, migrants show a cancer
incidence intermediate between that of the area into which they
migrated and that of the area from which migration occurred.
[p. 18]
2, Occupational studies have revealed a number of substances
that produce cancers in exposed workers.
3. Epidemiological investigations show that exposure of man to
x-rays (and other ionizing radiation) can lead to the development
of at least one type of leukemia.
4. A variety of studies of chemical and physical materials on
test animals have shown that cancer can be induced by the appli-
cation of certain of these materials.
Monitoring of air, water, food, soil, and radiation is necessary
to completely assess the environmental carcinogen burden. This is
being done in specialized cases involving workers in certain chemi-
cal industries and nuclear plants. However, any current attempt to
evaluate the total impact of environmental carcinogens on man
would be mostly guesswork.
Not only are we ignorant of the carcinogenic potential of many
new substances being introduced into the environment, but also we
do not know the interrelationship of multiple exposures of an
individual to two or more carcinogens at varying levels and times
of exposure.
Of all environmentally related cancers, cancers of the respira-
tory tract have received the most attention in terms of basic re-
search and epidemiologic study. This is partly due to the large
number of substances, of widely varied composition, implicated in
the process, and partly because of the astounding increase over the
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GUIDELINES AND REPORTS 3443
last two decades in the incidence of pulmonary cancers, particu-
larly among urban dwellers. There were approximately 60,000
deaths due to lung cancer in 1970, and it has been estimated that
95 percent of this disease is attributable to cigarette smoking.
Paralleling this increased interest in substances causing lung
cancer has been a growing number of investigations into the po-
tential of many materials, gases and chemicals, which, although
not tumorgenic by themselves, interact with other substances to
promote the development of cancers.
Various metals, metallic compounds, and minerals, have long
been associated with occupational cancer hazards. Nickel com-
pounds were strongly linked with cancer of the nasal sinuses and
lung; chromates, iron oxide, radioactive ores and asbestos with
cancers of the lung. Beryllium has produced a disease of the lung
in humans called berylliosis and lung cancers in experimental ani-
mals. Arsenic has been implicated in cancer of the lung among
workers in copper mining, nickel-cobalt smelting, insecticide man-
ufacture, and vineyard maintenance. Smelter workers with more
than 15 years of heavy exposure to arsenic have an eight fold
greater risk of lung cancer than expected. An almost fifty fold
increase in lung and respiratory tract cancer was found in work-
ers in a Japanese mustard gas factory during World War II. An
excess risk of lung cancer not accounted for by other factors has
been observed among uranium miners.
Although these associations between exposures and cancer are
known, the mechanism through which the agents produce cancer
are not. Until ongoing research finds the answer, the role of pollu-
tion in causing cancer cannot be quantitatively assessed.
[p. 19]
Teratogenesis
The role of congenital malformations as one of the primary
clinical problems in the newborn is well recognized. From 4.0 to
7.5 percent of human deliveries result in babies with defects seri-
ous enough to interfere with survival or cause clinical disease.
Congenital defects account for 14 percent of all infant deaths and
are the third most common cause of death in the newborn.
There is already ample evidence that diverse agents are capable
of inducing birth defects in humans, and very often at levels below
those needed to produce signs of maternal toxicity. Both various
drugs and various diseases have been clearly shown to be terato-
genic in human beings.
Methylmercury, an environmental agent, has affected the prena-
-------
3444 LEGAL COMPILATION—GENERAL
tal development of the human fetus. Children born to mothers who
had eaten contaminated food displayed a disorder of the "cerebral
palsy" type. More studies are planned to delineate the effects of
mercury and other heavy metals on growth and development of
the fetus and newborn and the possible role they might have in
human teratology. In addition to the heavy metals, a number of
pesticides have been shown to be teratogenic in animals. The wide-
spread use of these compounds warrants a more extensive exami-
nation of their potentials as pollutants in producing birth defects.
Future teratologic studies in animals will be expanded to utilize
recently available techniques and to develop information on the
biochemical and physiological processes of fetuses as they respond
to exposures to various environmental pollutants through mater-
nal circulation.
Mutagenesis
Mutations are transmissible changes which may affect the pres-
ent or future generations. If genetic functioning of the cell is
altered, while the capacity for cell division is unimpaired, the
mutation may be transmitted to descendent cells in the same indi-
viduals. These effects may result in cancer or birth defects in the
somatic cells of the adult or fetus, respectively. Mutations in germ
cells are more serious since they are transmitted to future genera-
tions.
Numerous chemical agents of many different and related struc-
tures which occur in environmental pollutants are mutagenic in
massive doses.
Presently no firm conclusions can be drawn as to whether most
potential environmental mutagens, at the levels now present in the
environment, represent a mutagenic hazard to men. Mutagenicity
testing is in its infancy. Methodologic improvement and additional
experimental investigation is needed.
Metabolic and Biochemical Changes
Everyone is exposed to man-made and natural chemicals and
mixtures which are known to alter the cellular and subcellular
activities and morphology. For example, many chemical agents,
including the ubiquitous metabolites of DDT, cause the enlarge-
ment of liver cells and the production of new proteins, called
enzymes, by these cells. Even though no disease has been related
to these subtle changes, their health significance cannot be as-
sessed by current methods.
[p. 20]
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GUIDELINES AND REPORTS 3445
Just as in carcinogenesis, mutagenesis and teratogenesis, cer-
tain cell types and subcellular components are selectively sensitive
to certain chemicals and this sensitivity changes with the develop-
mental stage of the organism.
Impaired Perception or Behavior
Irritations, odors, noise and toxic substances affect human per-
ception, communication, and behavior. Temporary or permanent
hearing loss increases directly with noise exposure as does inter-
ference with speech communication. Acting as a nonspecific physi-
ologic stress, noise can alter endocrine, cardiovascular, and neuro-
logic functions and cause biochemical changes.
Disturbances in sleep and decreased efficiency in skilled work
due to noise have been noted and community complaints against
domestic, vehicular, and factory noise are quite common. Cultural
differences also affect noise perception, e.g., teenagers may find
pleasure in music their parents consider objectionable. Since an
increasing proportion of the population is being exposed to
greater noise, careful studies on the health and behavior effects of
noise are called for.
Psychomoter effects such as increased response time to automo-
bile brakelights and to automobile speed and decreased visual
threshold for light intensity discrimination are caused by exposure
to increased levels of carbon monoxide.
Pollutant Burdens
Man and other living organisms are indirect indicators of pollu-
tion in that their tissues may accumulate environmental pollu-
tants. Some substances are needed by man at low levels but may
cause adverse effects at high levels (e.g., fluorides, manganese,
cobalt). A tissue carries a pollutant burden whenever it contains
an environmental residue greater than that needed for optimum
growth and development. The tissue burdens of many environmen-
tal pollutants have not been measured. Where measurements have
been made, scientists frequently do not know the long-range effect,
if any, of the pollutant burdens found. This is an area in which
much basic information is needed to permit a responsible evalua-
tion of experimental data.
PROTECTION OF EXPOSED INDIVIDUALS
The most effective way of dealing with adverse health effects of
pollutants would be to prevent their formation, or to prevent or
minimize man's exposure to those that are unavoidable. Total pre-
-------
3446 LEGAL COMPILATION—GENERAL
vention seems unlikely in today's society; the Nation is not pre-
pared to forego use of the automobile or fossil fuels in stationary
power plants to escape from the pollutants they produce.
Although prevention of pollution may be beyond reach, reduc-
tion of pollution is possible in most, if not all cases. Environmen-
tal health agencies including air and water pollution control units
primarily function to prevent hazardous exposure of individuals to
pollutants. These agencies establish regulations to control pollu-
tion at the source before exposure is allowed to occur. At times
unforeseen accidents or uncontrollable natural disturbances such
as periods of prolonged air stagnation will create localized buildup
of pollutants. When this occurs, local control agencies follow emer-
[p.21]
gency episode abatement plans aimed at drastic reduction of emis-
sions. However, undue community exposure may occur during
these episodes. Likewise accidental release of pollutants may ex-
pose individuals to hazardous pollutants at other times. Thus, in
spite of the best control programs and emergency abatement pro-
cedures, we must consider courses of action that might be taken to
prevent the health consequences of pollution, given imminent or
actual community-wide exposure. Recommendations for action by
health departments, physicians and individuals are given in this
section.
In a community suddenly exposed to high levels of pollution
whether by means of air, water, food, radiation or toxic hazards,
three functions must be accomplished.
1. Reduce exposure.
2. Identify the existence, nature and extent of the health
hazard.
3. Inform the community about appropriate preventive ac-
tion.
Reduce Exposure
Measures to avoid or reduce the effects of pollution on the
health of individuals have been developed in a number of areas.
Three alert systems are currently being applied on an organized
basis.
1. Where there is opportunity for widespread movement of pol-
lutants over large areas, such as the movement of masses of .pol-
luted air over entire regions or the widespread distribution of
disease-producing organisms which may cover entire States or
even the entire Nation, a procedure has evolved that is exemplified
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GUIDELINES AND REPORTS 3447
by the disease control approach of the HEW (CDC), or by the air
pollution control approach of EPA. In somewhat basic terms, this
may be regarded as a process of developing criteria against which
to judge pollution; monitoring the environment against the cri-
teria; sounding an alert on the monitoring processes showing ex-
cessive pollution; and checking on the results of the corrective
actions that are taken following the alert.
2. Where there is large volume distribution of products such as
foods, drugs, or poisons, the approach employed by HEW (FDA)
for control of hazardous chemicals, foods, and drugs, or the ap-
proach suggested in the Toxic Substances Act of 1971 is being
used. Here, basically, determination is made as to what manufac-
turing processes or formulas or both are producing acceptable
products, investigation is made at the manufacturing and distribu-
tion levels to determine that the acceptable processes or formulas
are being followed, and where there are deviations leading to
significant pollution, steps are immediately taken to remove the
offending products from the market and stop further distribution
from the producers. These steps may be one or a combination of
voluntary recalls by the producers, formal legal action brought by
the Government, and in case of widespread distribution that can-
not be recovered by these methods, the use of publicity roughly
comparable with that employed under item 1 above.
3. The third type of measure is employed where distribution of
offending pollutants is well circumscribed, as in a public water
supply for a given city or area, or in a particular manufacturing
plant or group of manufacturing plants. In both cases, the prob-
[p. 22]
lem is dealt with at the source. In the case of water, this is
accomplished by well-developed procedures of filtering, clarifying,
chlorinating, etc. In the case of occupational hazards accepted
procedures of filtering out dust and containing waste products so
they may not get to the workers are followed.
Identify Existence of a Hazard
Given in the order of decreasing probability of occurrence, tem-
perature extremes, air, water, food, product hazards, toxic chemi-
cals and radioactive pollution are hazards which may acutely en-
danger an entire community. Temperature extremes and high air
pollution levels can be effectively forecast and monitored. Major
metropolitan areas monitor public drinking water for bacterial
contamination, and most communities monitor public water sup-
-------
3448 LEGAL COMPILATION—GENERAL
plies for chlorine residual. It is believed that sudden accidental
contamination of water supplies with chemicals or other commer-
cial substances will usually be reported at the time of the accident.
Local supplies of milk and meat are routinely inspected by Fed-
eral, State or local agencies. Market basket surveys are conducted
in selected cities by the Food and Drug Administration. The pri-
mary purpose of these surveys is to monitor pesticide levels in
food supplies. The Environmental Protection Agency systemati-
cally samples radioactivity in milk and in air of selected communi-
ties, the Agency also monitors radioactive levels at atomic test
sites in this country.
Existing systems of product injury reporting include: The Na-
tional Clearinghouse for Poison Control Centers and the National
Electronic Injury Surveillance System operated by HEW (FDA) ;
the Epidemiology Program of the HEW National Communicable
Disease Program; the National Health Interview Survey con-
ducted by the Bureau of the Census for the National Center for
Health Statistics, HEW; the National Hospital Discharge Survey
conducted by the National Center for Health Statistics, HEW; the
National Mortality Statistics compiled by the National Center for
Health Statistics, HEW; and flammable fabrics injury investiga-
tions conducted by HEW (FDA). The National Electronic Injury
Surveillance System, provides for the first time, rapid reports on
all personal product related injuries treated in hospital emergency
rooms throughout the Nation. For the regulated consumer prod-
ucts, the various Federal laws involved provide a number of ways
to protect the public from those which present hazards. An addi-
tional drastic measure provides for the banning of a product from
commerce as a consumer product, when it has been shown to be
too dangerous for use by the general public. A cleaning fluid,
certain types of fireworks, and some classes of toys have been
subjected to such banning orders to date. A final protective meas-
ure under Federal law against hazardous consumer products—
whether otherwise regulated or not—provides for the issuance of
public warnings concerning those found to present an imminent
hazard to health.
These monitoring systems should serve as a warning mechanism
to identify acute health hazards from the common sources of envi-
ronmental pollution. Pollution hazards due to accidents, technolog-
ical breakdowns or mishandling of materials cannot be monitored
unless single sources of high pollution potential can be identified
and routinely monitored.
[p. 23]
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GUIDELINES AND REPORTS 3449
Inform the Community About Appropriate Preventive Action
The local health department must be informed by the monitor-
ing agency or by other sources as soon as an acute environmental
health hazard is identified. Channels of communication should be
formalized in the various protocols followed by local agencies dur-
ing environmental crises.
The local health agency must initiate appropriate preventive
action as soon as possible. The action should be designed to reduce
exposure of more vulnerable segments of the population and to
prepare the community's medical care system for a crisis. These
objectives will be best achieved if a plan of action is already in
existence before a crisis occurs. The plan must make provisions
for use of mass media, for advice to hospitals, doctors and individ-
uals. Special considerations must be given to the susceptible
groups, including the chronically ill, the aged, infants and preg-
nant women. Hospitals should be prepared to restrict elective ad-
missions in order to increase bed capacity. Hospitals and nursing
homes in areas with frequent heat waves or with significant air
pollution potential should consider installing air conditioning or
air treatment equipment to remove noxious substances from in-
coming air. Individuals with chronic disease should be advised to
restrict activity, avoid unnecessary stress and obtain medical help
at early signs of any deterioration in clinical status. Physicians
should be encouraged to respond vigorously when chronically dis-
eased patients call attention to complaints during acute episodes.
Several reports and manuals (see "Sources of Further Informa-
tion") contain detailed plans and advice for personal protection
when acute hazards arise from air or water pollution, pesticide or
radiation exposure. In general, these reports list specific precau-
tions which individuals can take to minimize the hazards of pollu-
tion exposure in emergencies. Contaminated water can be filtered
and boiled or treated with chemicals. Persons such as chronically
ill patients or the elderly who are particularly vulnerable to air
pollutants can stay indoors, close windows, minimize exposure to
indoor pollution, particularly cigarette smoke, and avoid unneces-
sary exertion during air pollution episodes. Poisoning with toxic
chemicals or pesticides must be treated by removal of the offend-
ing agent and by supportive therapy such as oxygen, intravenous
feedings, or sedatives, and antidotes as appropriate. Shielding as
in civil defense shelters can effectively reduce exposure to a radio-
active source.
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3450 LEGAL COMPILATION—GENERAL
Special Assistance to Victims of Pollution
The following systems for delivery of special assistance to vic-
tims of environmental pollution are in operation:
1. Employee health services.—Approximately 16 million work-
ers are covered by some form of employee health service which
provides medical care for job-related illnesses and injuries, and
on-the-job first aid for emergency situations affecting the worker's
health. However, ninety-nine percent of working establishments
provide only minimal service or none at all; where present, these
are frequently of an emergency nature—a part- or full-time nurse,
a part-time physician or a physician on call. Preventive services
are usually not available.
While limited in their extent, occupational health programs in
industry are slowly expanding to include more and more workers.
The Occupational Safety and Health Act of 1970 (P.L. 91-596)
now provides a national focus in the Departments of HEW and
[p. 24]
Labor for extending and strengthening the industrial health sys-
tem; it offers definable, improved mechanisms for safeguarding
workers from the ill effects of job-oriented environmental pollu-
tion. A number of improvements made possible by the new law
are:
—The Government can establish safety and health standards
that must be followed by employers.
—The Government investigators are authorized to inspect con-
ditions in places of work.
—There is authority to require the maintenance of records of
employee exposures to potential toxins.
—Programs will be established to train employees in recogni-
tion, avoidance and prevention of unsafe working conditions.
—Grants are authorized to enable the States to identify the
needs in their industries, develop plans for dealing with them,
and apply Federal occupational health and safety standards.
—A number of supportive scientific measures will be carried
forward, such as: (a) Conducting research on occupational
safety and health; (b) Developing criteria of safe exposure
levels to toxic materials; (c) Maintaining surveillance over
levels of toxic substances in the work place; (d) Making
toxicity determinations at the request of employers or em-
ployee groups.
Under authority of the Act, HEW has established a National
Institute for Occupational Safety and Health through which to
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GUIDELINES AND REPORTS 3451
carry out its responsibilities under the new law. Further, a Na-
tional Commission on State Workmen's Compensation Laws will
study and evaluate the laws with a view to standardizing them.
2. Assistance Available in Emergencies or Environmental Dis-
asters.—The response to a disaster involves local, State, and Fed-
eral agencies, although in general the Federal Government is ex-
pected to provide many of the necessary emergency services.
The major services rendered during an emergency are those
related to sustaining life, treating illness, minimizing the develop-
ment of disease problems, and restoring services that have been
damaged. The Federal capability of response involves many agen-
cies including the Department of Defense, the Office of Civil De-
fense, the Office of Emergency Preparedness, HEW, EPA, and
several other agencies who have expertise in environmental health
problems. The Environmental Protection Agency evaluates dam-
age to essential water, sewer and other environmental services.
The Public Health Service is capable of providing emergency hos-
pital facilities (2,500 "packaged" hospitals of 200 beds each),
staffing them through plans worked out with local hospitals,
mounting disaster teams, or providing physician assistance. Plans
exist for providing emergency feeding and shelter to displaced
persons if necessary.
The Environmental Protection Agency renders a basic preven-
tive service by monitoring levels of environmental pollution and
warning the public when these are approaching critical levels.
In radiological emergencies, specific systems exist to minimize
risks to the public by rapidly reducing chances of exposure. Such
plans and agreements include: (1) the National Radiological Assist-
ance Plan by which several agencies agreed to assist in particular
ways in the event of radiation incidents or accident; (2) the
Medical Liaison Officer Network by which physicians are available
throughout the country to investigate certain radiation incidents;
(3) "Broken Arrow" assistance, by which agreements exist be-
tween the Public Health Service and the Air Force to investigate
[p. 25]
weapons accidents. Once an emergency has passed, the persons
affected by it must rely upon the general medical and welfare
systems for continuing care of any residual problems.
3. Assistance to Victims of Lead Poisoning.—Despite poisonings
over a period of years from lead-based paint formerly used in
homes, efforts to remedy the problem were inadequate. Local pro-
grams in a few areas provided services in prevention and in case
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3452 LEGAL COMPILATION—GENERAL
management. Victims were identified by blood test screening pro-
cedures and then treated to remove accumulated lead. Prevention
was achieved by identifying houses where lead exposure exists and
correcting the situation by enforcement of local housing codes
requiring adequate covering or removal of lead-based painted sur-
faces.
Some services were available to some victims of lead poisoning
as a by-product of Federal programs established to deal primarily
with other problems (Maternal and Child Health Services, and
OEO Health Centers). These did not meet the need.
The "Lead-Based Paint Poisoning Prevention Act," P.L. 91-695,
signed January 13, 1971, established a national program directed
at children who are victims of lead-based paint poisoning. The Act
provides for grants to local units in States to establish programs
to detect and treat victims of this type of environmental pollution.
4. Other Assistance.—
(a) Physicians who are called upon to treat victims of poison-
ing, may secure expert advice on the immediate management of
poisonings through a local Poison Control Center (583 Centers
serve a total of over 500 cities). The Centers in turn may secure
advice on a 24-hour basis from experts at HEW Headquarters.
(6) HEW operates other assistance programs which include
environmental health components for migrant agricultural work-
ers and Indians.
5. Education.—Citizen education is required on a broad scale so
that each person is in a position to deal intelligently with the
known adverse health effects that may stem from pollutants. Vic-
tims of pollution could avoid many problems without professional
attention if they were advised of the appropriate safeguards to
follow, and did follow them, in case of excessive air pollution,
excessive noise, use of hazardous products, conduct of hazardous
occupational endeavors, etc. Additional personnel should be
trained for pollution control programs, and health professionals
and paraprofessionals should be trained in increasing numbers to
meet the public health-preventive medical needs of the country.
The President's Health Message of February 1971 has already
presented the strategy for a significant improvement in the educa-
tional effort directed to improving health care. This provides,
among other things, for training of more professional and para-
professional health personnel, for greater geographic distribution
of training centers, for the establishment of health maintenance
organizations, and for provision of skilled professionals to areas
of greatest need. It is essential that these and the other proposals
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GUIDELINES AND REPORTS 3453
of the Health Message designed to increase the availability of
health manpower be carried forward promptly and effectively.
The National Health Education Foundation discussed in the
Health Message also will provide for a more intensive and con-
[P. 26]
tinuing effort to increase citizen awareness of the measures
needed to allow the individual to help himself remain healthy;
these measures will include education as to the steps to be taken to
avoid adverse effects of pollutants.
POLLUTANTS—RESEARCH
Research Needs
Many thousands of chemical and physical agents have been pro-
duced and widely distributed. Except in a few cases, their volume
of production, the extent of their distribution, and their potential
impact on the public health have not been adequately ascertained.
There have been notable instances in which products were found
to be unsafe or of questionable safety after they had achieved
widespread distribution in the environment. The continued intro-
duction of new materials of unknown environmental and health
impact constitutes a hazard of serious proportions.
Historically, environmental health programs have been organ-
ized in three different ways. First, they were organized according
to specific diseases since epidemic illness has been destructive to
the community since ancient times. More recently, they were or-
ganized according to specific media such as air, water and solid
wastes which represent the basic modes of transmission of many
diseases. The present, integrated multimedia approach reflects
both the increasing complexity of our modern environment and
new awareness of the complexity of disease causation. Action is
necessarily pragmatic and decisions are often made on the basis of
extant information rather than complete knowledge. The acquisi-
tion of new knowledge is necessary as a basis for selecting im-
proved strategies for control of pollutants.
It has become abundantly clear, moreover, that the acquisition
of new information and understanding through research is a long
process. If we are to meet the environmental challenges of the
future, we must foresee the information that will be needed and
direct research accordingly. The following account outlines these
needs.
1. Identification and Distribution of Adverse Agents.—The list
-------
3454 LEGAL COMPILATION—GENERAL
of environmental agents mentioned in the literature as actually or
potentially harmful is quite long. Some have been included because
of well-known irritant effects; and others, such as the sulfur ox-
ides, because of their ubiquity. Some have been listed because they
belong to a class of chemicals which have been found in animal
experiments or in human experience to have carcinogenic proper-
ties, others, because they are suspected of belonging to a newly
recognized group such as the mutagens. In some cases the grounds
for alarm are well-founded; in others fear goes beyond the evi-
dence. The reasons for inclusion are varied and not always well-
founded. There has been little attempt to review the whole range
of environmental agents systematically, or to adopt a consistent
basis for judging an environmental agent as a hazard.
Need—Systematic review of agents entering the environment
and assessment of their potential for harm; Improved environ-
mental forecasting or alerting mechanisms are needed. To the
extent possible, the tools of technology forecasting should be ap-
plied to the task of predicting use of new materials, expanded uses
of materials and altered distributions of materials. Account should
be taken of new agents as they are produced and distributed. This
information should then be used to predict a possible environmen-
tal hazard and direct research resources to consider the inherent
[P. 27]
biological effects of the materials. Steps will be needed to pool
systematically new information from all sources about the biologi-
cal responses to environmental agents. Mechanisms will be needed
so that there can be rapid feedback to a central group, or groups,
of information derived from the health research effort of regula-
tory agencies and other mission-oriented groups.
Need—Continuing intensified effort directed to: (a) improving
the methodology for developing desired information on the biologi-
cal action of individual agents. Research efforts should be directed
toward an understanding of the fundamental biological mechan-
isms of action of environmental agents. It is this question of how
the agents interact with biological systems which should be posed.
Commonly, this question is avoided by substituting for it "stand-
ard tests" whose biological endpoints are often very crude (death,
gross pathological changes). Deriving an understanding of the
mechanism of action characteristically involves the establishment
of an hypothesis based on some prior knowledge and scientific
intuition and the testing of the hypothesis by experimental means;
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GUIDELINES AND REPORTS 3455
(b) acquiring the equipment and facilities for applying the
available methodology to agents selected for investigation.
(c) Systematic and coordinated research directed to :
1. Refining knowledge on the better known agents;
2. Clarifying significance of agents strongly suspected of
having adverse effects;
3. Evaluating new agents before they get widespread distri-
bution ;
4. Establishing the ranges of individual susceptibility.
2. Assessment of Toxic Potential.—Assessment of toxic poten-
tial rests on several criteria. From the chemical or the physical
nature of the agent it may be possible to gauge its properties by
analogy with similar agents whose properties are already known.
Some of the hazards of microwave equipment were predictable,
for example, although others are still speculative. We would now
suspect any alkylating agent of having mutagenic properties. The
many remaining areas of uncertainty may be resolved through
epidemiological study of exposed persons, or through experimental
studies on animals or other biological systems. The methodology of
investigation is still developing, and systematic screening proce-
dures are still being worked out, but many of the tests are time-
consuming and not yet applicable to mass screening.
There is room for much increased sophistication in the present
methods for screening and testing in order to assure proper inter-
pretation.
If current testing procedures were continued it would require a
very large commitment of resources (money, people, physical labo-
ratory facilities) to examine all of the present inventory of chemi-
cal and physical substances in the environment. Thus, to evaluate
this inventory plus new materials, short-cut testing procedures
will be needed. The development of these tests will require both
insight into the biological processes involved and a substantial
applied effort in support of these methodologies.
While epidemiology represents a special opportunity for insight
it also requires some special considerations. Epidemiological inves-
tigations of environmental agents often require dedication and
continuity of study over long periods of time. Further, in order to
single out for study human subjects who have undergone known
exposures to environmental insults, some modest if important data
[p. 28]
resources are required such as a national death index and a regis-
try of congenital malformations.
-------
3456 LEGAL COMPILATION—GENERAL
Some specific research areas in particular need of development
are set out in a recent report—Man's Health and the Environment
—by a Task Force on Research Planning on Environmental
Science.1
3. Problems of Multiple Agent Exposure.—The investigation of
environmental agents one at a time was a logical initial way to
approach the urgent environmental problems that confronted us.
But it clearly cannot provide all of the answers to the real state of
affairs in which individuals are exposed simultaneously to a wide
variety of agents in infinitely varied patterns. The effects of two
agents acting in conjunction are not necessarily the simple sum of
their effects when they act alone. One plus one may be considera-
bly less or considerably more than two. The combined effect, more-
over, is likely to be qualitatively as well as quantitatively different.
While investigators are aware of this problem, they have not pro-
gressed very far in dealing with it. Standardized testing of agents
two or three at a time, in overlapping combinations, can provide
evidence of synergistic or antagonistic effects. Sophisticated sta-
tistical analysis can assist this process. Early results can some-
times be used as a guide in selecting subsequent combinations for
testing. If only a certain number of combinations are tested, there
is a risk that an unusual but active combination will be missed,
but the risk should be small and acceptable.
Need—Deliberate, systematic investigation of agent combina-
tions selected for relevance to natural situations.
4. Perceptive Review.—The best results are obtained when ade-
quately informed minds are permitted to interact with all other
data-handling processes at each stage of inquiry. The judgment of
experts is critical when it comes to evaluating the significance of
information for remedial action. Science is a dynamic affair and
research raises as many questions as it does answers. It becomes
logical to review old decisions on the basis of new experimental
findings and to be willing to revise if necessary the evaluation of
the degree or character of hazard of pollutants.
Needs.— (a) Development of statistical and computer tech-
niques for improving our understanding of the significance of ex-
perimentally gathered information.
(6) Establishment of repetitive review panels to analyze, dis-
cuss, and assess available information on multifactor effects and
1 U.S. Department of Health, Education, and Welfare, Man's Health and the Environment—
Some Research Needs. A report to the National Institutes of Health, March 1970.
-------
GUIDELINES AND REPORTS 3457
to decide what further steps should be taken to clarify uncertain-
ties.
The cost of environmental pollution is not known, though there
have been estimates of tens of billions of dollars per year. In the
absence of reliable information on the costs of pollution, it is
difficult to make good cost-benefit assessment of remedial meas-
ures. Generally, society looks with disfavor on the release of
noxious materials that produce widespread illness or death, and
where the association of the pollutant and the injury is clear,
preventive measures are implemented without regard to the eco-
nomic cost. The problem becomes much more difficult when we are
dealing with small concentrations of pollutants not readily recog-
nized as substances that cause disease; that is particularly true
when the disease state becomes evident a long time after exposure
to the causative agent.
[p. 29]
Need.—Cost-benefit estimates to assist in making responsible
judgments about the levels of various pollutants that society
should allow to be introduced into the environment.
RECOMMENDATIONS AND CONCLUSIONS
This report on the health effects of environmental pollutants
serves as an overview of this area of concern. Many of the deci-
sions about current environmental issue are based on considera-
tion of human health. Emission standards for air pollutants, rec-
ommended levels of trace materials in drinking water, strategies
toward lead and other fuel additives in gasoline, along with a
variety of other decisions are made largely on the basis of their
implications for human health, but we know less about the biologi-
cal effects of environmental agents than we would like. The degree
of uncertainty is often very large and, hence, decisions are prop-
erly made with what appears to be a suitable element of prudence.
It appears highly desirable to reduce the areas of uncertainty to
the extent that science will permit through appropriate investiga-
tion and research. This report highlights a need for increasing the
sophistication and quality of this research as well as its quantity.
Science is a dynamic affair. Research raises new questions as well
as providing new answers. We should neither be surprised about
this nor frightened by new and unexpected findings. Rather, we
should expect to change our views towards standards and regula-
tions which govern human exposures to environmental agents
from time to time as new information is uncovered.
-------
3458 LEGAL COMPILATION—GENERAL
Protection of the general population from unexpected, acute
exposures to environmental agents appears to be reasonably ade-
quate. However, there are often persons at particular risk to pollu-
tants and they deserve special attention. Control of environmental
pollution holds the prospect of prevention of disease which is
always more desirable than treatment after the fact. However, to
take advantage of such control as a preventive endeavor necessar-
ily involves understanding the relationship between the environ-
mental exposure and the diseases which are thought to result from
it.
The President has made a number of legislative recommenda-
tions to Congress during the past several months relating to prob-
lems covered by this report. No further legislative changes are
needed at this time. However, there are further actions that
should be considered, such as:
1. Research and understanding.-—(a) Prediction of new materi-
als and new distributions of materials in man's surroundings is
recognized as highly desirable in order to make suitable judgment
about his probability of exposure and to order the priorities of
biological research to discover the nature of the interaction with
the human organism. Improvement of environmental forecasting
efforts would be highly desirable to predict the effects of the prod-
ucts and byproducts of new technologies.
(6) The gathering of information about the presence, the
amounts and the distribution of presently available materials is
highly important. Much of this information is scattered and often
difficult to assemble. The Toxic Substances Bill, now before Con-
gress, is designed to assist in this accounting procedure. System-
atic reviews of the products and byproducts entering the environ-
[p. 30]
ment along with natural background levels of similar materials
should be undertaken.
(c) To adequately predict the effects of agents entering the
environment, there are a number of specific needs for research
which have been outlined in the preceding chapter. Briefly summa-
rized they are :
1. Continue the process of screening according to rational
procedures, increase the sophistication of the screening effort,
develop new and improved methods for screening which re-
duce the time required by the traditional experimental proce-
dures wherever possible.
2. Endeavor to understand how environmental agents bring
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GUIDELINES AND REPORTS 3459
about their effects on biological systems as well as simply
observing the gross effects.
3. Epidemiology represents a special case where some new
data sources are needed and where a dedicated effort is re-
quired to take advantage of recognized human exposures.
(d) There is a continuing need for coordination. The environ-
mental health research effort is presently shared by at least four
Federal agencies (HEW, AEG, EPA, NSF, and others). In order
to make the most efficient use of these resources, care must be
exercised by these agencies to assure that needed areas of investi-
gation are not omitted, that all possible sources of information are
utilized and that the best possible science is brought to bear on
government decisions including regulatory decisions.
2. Physical measurements and monitoring.—The Federal Gov-
ernment engages in a wide variety of monitoring efforts searching
for and measuring environmental agents. Most of these are highly
useful. In some cases, however, these efforts will have to be
strengthened so as to be more meaningful. Further, there are some
instances where the collection of the physical measurements can-
not be easily related to corresponding biological measurements.
Systematic attention should be given to the design of systems for
physical measurements so as to make their results meaningful to
experimental biologists who are concerned with relating human
diseases to documented exposures.
3. International cooperation.—Useful information should be
gathered from all possible sources to add to our fund of under-
standing. International agreements with other nations who are
users and producers of the materials which become pollutants
should be encouraged when these agreements could make possible
a fuller understanding of the effects of human exposure to or the
promise of better control of environmental pollutants.
4. Control of pollutants.—Emphasis must continue to be placed
on devising methods of controlling pollutants at their sources and
thus avoiding or reducing their effects.
SOURCES OF FURTHER INFORMATION
Those who wish to explore the subject in greater depth, may
consult the following references. These list other publications in
the extensive literature that is developing on environmental pollu-
tion.
-------
3460 LEGAL COMPILATION—GENERAL
*Report of the Secretary's Commission on Pesticides and Their
Relationship to Environmental Health, U.S. DREW, December
1969, Parts I and II.
[P. 31]
*Report of the U.S. DHEW Task Force on Research Planning
in Environmental Health Science—"Man's Health and the Envi-
ronment—Some Research Needs," March 1970.
Weibel, S. R., Waterborne Disease Outbreaks, 1946-1960, Jour-
nal of Amer. Waterworks Association, 56 (8), pages 947-958,
August, 1964.
Chang, S. L., MaCabe, L. J., Northington, C. W., Health Aspects
of Waste Water Reuse. Proceedings of Water Resources Program
No. 3, U. of Texas Press, Austin, Texas, 1970, pages 49-56.
*Air Quality Criteria
—for Particulate Matter, Publication No. AP-49,1969
—for Sulfur Oxides, Publication No. AP-50,1969
—for Carbon Monoxide, Publication No. AP-62,1970
—for Photochemical Oxidants, Publication No. AP-63,1970
—for Nitrogen Oxides, Publication No. AP-84,1971
(The first 4 documents were issued by DHEW, the last by
EPA).
*U.S. Department of Health, Education, and Welfare, Public
Health Service, Safe Drinking Water in Emergencies. Health In-
formation Series No. 74, Public Health Service Publication No.
387 (Revised 1964).
National Council on Radiation Protection and Measurements,
Basic Radiation Protection Criteria. Recommendations of the Na-
tional Council on Radiation Protection and Measurements. Janu-
ary 15,1971.
*Hayes, W. J., Clinical Handbook on Economic Poisons, Emer-
gency Information for Treating Poisoning. Public Health Service
Publication No. 476, (Revised 1963).
Cohen, A., Shy, C. M., Riggan, W. B., Benson, F. B. and Newill,
V. A., Air Pollution Episodes: Guide for Health Departments and
Physicians. HSMHA Reports. In press, June, 1971.
*For sale by the Superintendent of Documents, U.S. Govern-
ment Printing Office, Washington, D.C. 20402
[P. 32]
U.S. GOVERNMENT PRINTING OFFICE: 1972 0—466-441
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GUIDELINES AND REPORTS 3461
4.7 INTERAGENCY AGREEMENTS
4.7a ECONOMIC DISLOCATION EARLY WARNING SYSTEM,
MEMORANDUM OF UNDERSTANDING BETWEEN THE
ADMINISTRATOR OF ENVIRONMENTAL PROTECTION
AGENCY AND THE SECRETARY OF LABOR (1971)
ECONOMIC DISLOCATION EARLY WARNING SYSTEM
MEMORANDUM OP UNDERSTANDING BETWEEN THE ADMINISTRA-
TOR OF THE ENVIRONMENTAL PROTECTION AGENCY AND THE SEC-
RETARY OF LABOR
In recognition of the potential employment effects of enforce-
ment actions by the Environmental Protection Agency, State pol-
lution control agencies, or local pollution control agencies, in rec-
ognition of the responsibilities of the Department of Labor and its
ability to provide employment assistance, and in recognition of the
Environmental Protection Agency's and the Department of La-
bor's desire to facilitate optimal adjustment of workers affected
by pollution control enforcement, we hereby adopt the following
policies and procedures:
I. POLICIES
A. It is our policy that there shall be full coordination and
cooperation between our respective organizations at all organiza-
tional levels, on the above responsibilities and desires.
B. We shall develop an "Early Warning System" which will
provide for a routine flow of information between our two organi-
zations, will provide early notification to the Department of Labor
of Environmental Protection Agency enforcement actions which
could adversely affect employment opportunities, and will allow
the Department of Labor to take prompt and appropriate action to
avoid or minimize unemployment problems.
II. PROCEDURES
A. The Environmental Protection Agency will:
1. Provide the Department of Labor with copies of announce-
ments of enforcement actions on a routine and timely basis.
2. Advise the Department of Labor at earliest indication that
the enforcement of pollution control standards in a specific
case may adversely affect employment.
-------
3462 LEGAL COMPILATION—GENERAL
3. Provide the Department of Labor with follow up informa-
tion on court actions initiated by the Environmental Pro-
tection Agency against specific facilities under the Refuse
Act or other pollution control statutes.
4. Provide to the Department of Labor, at the earliest possible
time, a confidential alert concerning any contemplated en-
forcement actions to be taken in economically depressed
areas identified by the Department of Labor.
5. Serve as a clearinghouse for information on enforcement
actions by State and/or local enforcement authorities as
they become known.
6. Provide the Department of Labor with available informa-
tion concerning manpower requirements to construct, oper-
ate, or maintain pollution control facilities and require-
ments of State or local pollution control agencies.
B. The Department of Labor will :
1. Invoke the early warning mass layoff assistance program
upon notice from the Environmental Protection Agency of
potential worker dislocations.
2. Provide to the Environmental Protection Agency, on a con-
tinuing basis, published information on area employment
and unemployment trends.
3. Provide to the Environmental Protection Agency, on a con-
tinuing basis, advance information on severe unemploy-
ment trends developing in selected areas—with appropriate
notice of the degree of confidentiality to be observed in
advance of publication.
4. Provide to the Environmental Protection Agency informa-
tion on the Department of Labor manpower services pro-
grammed for areas in which critical unemployment prob-
lems are anticipated.
5. Inform the Environmental Protection Agency as soon as
possible of proposed manpower legislation having particu-
lar relevance to mutual Department of Labor/Environmen-
tal Protection Agency interests.
6. Confer with the Environmental Protection Agency in the
development of guidelines for the nationwide Cooperative
Area Manpower Planning System (CAMPS), or its succes-
sor in the event of manpower legislation reforms, to ensure
inclusion of pertinent Environmental Protection Agency
recommendations.
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GUIDELINES AND REPORTS 3463
7. Inform the Environmental Protection Agency of local,
State, regional, and national committees being organized to
aid in manpower problems and recommend their participa-
tion as appropriate.
8. Provide to the Environmental Protection Agency informa-
tion reports on special assistance provided to dislocated
workers.
9. Provide for additional training programs and job search
assistance to the maximum possible extent within budget-
ary constraints.
III. AMENDMENT
If either party finds the terms of this memorandum of under-
standing in need of modification, he may notify the other of the
nature of the desired changes. Within 90 days thereafter the par-
ties shall negotiate such amendments as are considered mutually
desirable.
Date:
WILLIAM D. RUCKELSHAUS,
Administrator of the Environmental
Protection Agency.
Secretary of Labor.
4.7b ESTABLISHING AND MAINTAINING AN INDUSTRIAL
SECURITY PROGRAM, INTERAGENCY AGREEMENT BE-
TWEEN THE ENVIRONMENTAL PROTECTION AGENCY
AND THE DEPARTMENT OF DEFENSE (1972)
PURPOSE. The purpose of this interagency agreement is to
obtain the services of the Department of Defense (DOD) in
establishing and maintaining an industrial security program in the
Environmental Protection Agency (EPA).
DEPARTMENT OF DEFENSE A UTHORITY AND RESPON-
SIBILITY. The Environmental Protection Agency (EPA) hereby
authorizes the Department of Defense to act for and on behalf of
the EPA in rendering security services for the protection of classi-
fied information released to or within industry by the EPA. It is
understood and agreed that the Department of Defense will apply
the specific requirements, restrictions, and other safeguards as
prescribed in the Department of Defense Industrial Security
Regulation, the Department of Defense Industrial Security Manual
-------
3464 LEGAL COMPILATION—GENERAL
for Safeguarding Classified Information, the Cryptographic Sup-
plement to the Industrial Security Manual for Safeguarding
Classified Information, the Carrier Supplement to the Industrial
Security Manual for Safeguarding Classified Information, and the
Industrial Personnel Security Clearance Program Directive, ex-
cept as otherwise herein provided.
ENVIRONMENTAL PROTECTION AUTHORITY AND RE-
SPONSIBILITY. The EPA, when acting as a contracting or grant-
awarding agency, will have the authority and responsibility and
will perform the functions specified for a user agency in the
Industrial Security Manual for Safeguarding Classified Informa-
tion, in the Industrial Security Regulation, in the Cryptographic
Supplement to the Industrial Security Manual for Safeguarding
Classified Information, and in the Carrier Supplement to the
Industrial Security Manual for Safeguarding Classified Informa-
tion.
REVIEW OF SUBSTANTIVE SECURITY CHANGES. Pro-
posed substantive changes to the Industrial Security Manual for
Safeguarding Classified Information, the Industrial Security Reg-
ulation, the Cryptographic Supplement to the Industrial Security
Manual for Safeguarding Classified Information, the Carrier
Supplement to the Industrial Security Manual for Safeguarding
Classified Information, and the Industrial Personnel Security
Clearance Program Directive will be submitted to the EPA for
prior review and coordination, reserving, however, the final deci-
sion to the Secretary of Defense.
USE OF DD FORMS. The EPA accepts the Department of
Defense Security Agreement (DD Form 441), Appendage (DD
Form 441-1), and the Department of Defense Transportation
Security Agreement (DSA Form 1149). The EPA contracts will
contain a clause requiring each contractor or grantee to adhere to
the Department of Defense Security Agreement.
FACILITY AND PERSONNEL SECURITY CLEARANCES.
Only Department of Defense facility clearances and personnel
clearances will be issued to or within industry. All facility and
personnel security clearances granted by the Department of
Defense and Confidential personnel security clearances properly
granted by contractors and grantees will be accepted by the EPA
for access to its classified information.
The Department of Defense will notify the EPA before taking
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GUIDELINES AND REPORTS 3465
action to invalidate a facility security clearance of an EPA con-
tractor or grantee.
VOTING MEMBER ON BOARDS. In personnel security cases
from an EPA contractor or grantee, the EPA will be entitled to
have one voting member on the Screening Board Panel and one
voting member on the Appeal Board Panel.
EXECUTIVE ORDER 10865 PROVISIONS. If granting or
continuing a security clearance of a specific category in an EPA
case is not warranted, and the case is considered under the provi-
sions of Section 4. (a) or Section 5. (b) of Executive Order
10865, the case will be forwarded to the Administrator of EPA
for determination.
When the necessity arises for the determination "by the head of
the department" of "good and sufficient" cause within the meaning
of Section 4. (a) (2) (b) of Executive Order 10865, the determina-
tion will be made by the Administrator of EPA.
The Administrator of EPA hereby designates the Assistant
Secretary of Defense (Comptroller) as his "special designee" for
the purposes of Section 4. (a) (2) and Section 5. (b) of Executive
Order 10865, which authority is not subject to redelegation.
When a decision under Section 9 of Executive Order 10865 may
be warranted, the case will be forwarded for the findings and
determination of the the Administrator of EPA. If the Adminis-
trator of EPA decides that the case does.not warrant action under
Section 9 of Executive Order 10865, the case will be returned to
the Department of Defense for processing under the provisions
of Executive Order 10865 and the Industrial Personnel Security
Clearance Program Directive.
ACTION AUTHORIZED BY THE INDUSTRIAL PERSON-
NEL SECURITY CLEARANCE PROGRAM DIRECTIVE. The
Administrator of EPA agrees that the Assistant Secretary of
Defense (Comptroller), or his designee for that purpose, will act
in his behalf in all actions authorized by the Industrial Personnel
Security Clearance Program Directive.
ADMINISTRATOR'S AUTHORITY OVER EPA CASES. The
Administrator of EPA will occupy a status and have authority
similar to that of the Secretary of Defense in any case from an
EPA contractor or grantee processed under the Industrial Per-
sonnel Security Program Directive.
REIMBURSEMENT. Reimbursement shall be made for security
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3466 LEGAL COMPILATION—GENERAL
services rendered for the EPA in an amount agreed to by the
Administrator of EPA, or his designee, and the Assistant Secre-
tary of Defense (Comptroller).
DEPARTMENT OF DEFENSE
/s/ Melvin Laird, Secretary
MAR 28,1972
ENVIRONMENTAL PROTECTION AGENCY
/s/ William D. Ruckelshaus, Administrator
APR 18, 1972
4.7c COOPERATIVE EFFORTS REGARDING AIR AND
WATER QUALITY IN IMPLEMENTING THE EVER-
GLADES JETPORT PACT, MEMORANDUM OF UNDER-
STANDING BETWEEN EPA AND NATIONAL PARK
SERVICE (1972)
WHEREAS, under the terms of the Everglades Jetport Pact,
the Federal Government agrees to "undertake the planning, devel-
opment, and coordination of a comprehensive program to deter-
mine the present condition of the environment which includes the
Airport and Everglades National Park and to monitor changes in
this environment which may result from the operation of the
Airport;" and
WHEREAS, under the terms of the Everglades Jetport Pact
the Federal Government "will undertake the planning, develop-
ment and coordination of an ecological study of the region, in-
cluding its hydrology, and provide recommendations for land uses
of the Big Cypress Swamp, which will be consistent with preserv-
ing and protecting the environment and ecosystems of Everglades
National Park, the water supply of the affected communities and
the marine resources of dependent estuaries;" and
WHEREAS, the Department of the Interior has been charged
with primary responsibility for the above studies; and
WHEREAS, the National Park Service has been designated as
lead agency in this endeavor; and
WHEREAS, the Federal Water Quality Administration has
participated as a bureau within the Department of the Interior;
and
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GUIDELINES AND REPORTS 3467
WHEREAS, the National Air Pollution Control Administration
has also participated as an associate member of the Field Advisory
Board; and
WHEREAS, it is desirable that the above relationships be main-
tained for the duration of the Everglades Jetport Pact;
NOW THEREFORE, the Administrator of the Environmental
Protection Agency and the Director of the National Park Service
agree as follows:
1. That the National Park Service will:
a. Work with the Environmental Protection Agency to
complete air quality monitoring activities at the Airport
site.
b. Provide necessary funds to operate the air quality moni-
toring equipment.
c. Coordinate the activities of Department of the Interior
agencies involved in water quality and other environ-
mental monitoring at the Airport site and in environ-
mental studies relative to the Everglades Jetport Pact
with those of the Environmental Protection Agency.
d. Transfer funds to the Environmental Protection Agency
to carry out activities pursuant to the Everglades Jetport
Pact based upon mutual agreement on the scope of work
for each fiscal year.
2. That the Environmental Protection Agency will:
a. Continue its active membership on the Everglades Jetport
Advisory Board at the Washington level and on the Field
Advisory Board.
b. Through its environmental quality management efforts
in South Florida, such as the lower Florida estuary
studies and water quality management planning activities
of the Office of Water Programs, and through cooperation
with the National Park Service, work toward the overall
objectives of the Everglades Jetport Pact.
c. Through the Office of Air Programs:
1. Provide equipment for the Training and Transition
Airport air quality monitoring project.
2. Set up and operate the above-mentioned equipment in
accordance with the air monitoring plan, and evaluate
the air quality data collected.
d. Through the Office of Water Programs:
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3468 LEGAL COMPILATION—GENERAL
1. Continue its water quality monitoring program within
the Big Cypress Swamp drainage.
2. Participate in the completion of the Big Cypress
Study report.
3. Participate in studies contributing to selection of an
alternate site for a jetport in South Florida.
4. Participate in the planning, development and coordi-
nation of the South Florida ecological study.
e. Subject to the availability of funds from the National
Park Service and the availability of Environmental Pro-
tection Agency personnel, undertake such additional
work as the parties deem necessary and desirable in sup-
port of the South Florida Work Program.
Nothing herein shall be construed as relieving the parties hereto
or agencies participating herein, of the responsibilities for the
independent development of environmental impact statements as
may be required under guidelines issued by the Council on En-
vironmental Quality, upon programs or activities which may
result hereunder.
The Assistant Administrator for Air & Water Programs, En-
vironmental Protection Agency, is hereby authorized to make
agreements with the National Park Service regarding the nature
and funding of specific projects of work undertaken to implement
this Memorandum of Understanding.
IN WITNESS WHEREOF, this Memorandum of Understanding
is duly executed on behalf of the National Park Service and the
Environmental Protection Agency. This Memorandum of Under-
standing is to remain in effect for the duration of the Everglades
Jetport Pact (January 16, 1973), after which it will be subject to
renewal and/or revision by mutual consent of the National Park
Service and the Environmental Protection Agency.
For the National Park Service:
4.7d GENERAL POLICY AND PROCEDURE FOR PROVIDING
ECONOMIC AND TECHNICAL ASSISTANCE TO DEVEL-
OPING NATIONS, AGREEMENT BETWEEN THE ENVI-
RONMENTAL PROTECTION AGENCY AND THE AGENCY
FOR INTERNATIONAL DEVELOPMENT (1972)
I. PURPOSE
WHEREAS, the Agency for International Development (A.I.D.)
in extending developmental assistance, including advice on environ-
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GUIDELINES AND REPORTS 3469
mental problems, to lesser developed countries calls upon other
federal agencies pursuant to Section 632 (b) of the Foreign
Assistance Act of 1961, as amended.
WHEREAS, the Environmental Protection Agency (EPA) is
required by Section 102(2) (E) of the National Environmental
Policy Act "to lend appropriate support to initiatives, resolutions
and programs designed to maximize international cooperation in
anticipating and preventing a decline in the quality of mankind's
environment...;"
NOW, THEREFORE, the parties hereto agree as follows:
II. ASSISTANCE AVAILABLE
Subject to the provisions of this Agreement in accordance with
A.I.D. requests, EPA shall, to the extent its resources reasonably
permit, assist A.I.D. in:
A. Formulating the means (examples, informational and ana-
lytical materials) to strengthen the abilities of developing
countries to:
1. Understand and deal with adverse environmental condi-
tions.
2. Abate~and control the causes of environmental degrada-
tion.
B. Identifying mechanisms for assessment of environmental
protection problems.
C. Developing methods for assessing the environmental protec-
tion needs and capabilities of developing countries.
D. Implementing environmental technical assistance programs
and projects that are responsive to the needs of particular
countries.
E. Arranging environmental training and education programs,
in the United States and abroad, for both personnel of devel-
oping countries and A.I.D.
F. Representing the United States at international or other
conferences, meetings, workshops, or symposia, including
preparing papers for such gatherings.
G. Participating in programs designed to achieve the rapid
international dissemination of environmental information.
///. RESPONSIBLE OFFICES
The respective agency contact points will be: the Deputy
Assistant Administrator for Program Support or his designee for
A.I.D., and the Office of International Affairs for EPA.
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3470 LEGAL COMPILATION—GENERAL
IV. GOVERNING PROCEDURES
A. Technical Services
1. General. Technical services under this Agreement may be
secured:
a. In accordance with Participating Agency Service
Agreements (PASAs) which the parties may from
time to time conclude, subject to the terms of this
agreement, with respect to clearly denned activities
having as their purpose the attainment of specified
goals within a stated period of time. Services outside
the United States are authorized through PASAs.
b. Under the Participating Agency Support Program
(PASP) for repetitive, general services performed
primarily in the United States.
2. When Performed Outside the United States
a. Personnel Privileges and Standards
EPA personnel serving overseas for A.I.D. under this
Agreement will:
i. be subject to A.I.D. regulations, as are now or
hereafter in effect, concerning clearances and se-
curity, unless otherwise specified by A.I.D.; it being
understood that A.I.D. will not be liable for reim-
bursement under this Agreement on account of
services performed by EPA personnel who have not
undergone the requisite clearance procedures;
ii. have the same rights and privileges as comparable
A.I.D. personnel, to the extent A.I.D. is empowered
to authorize such rights and privileges;
iii. maintain standards of personal conduct acceptable
to A.I.D.
iv. be United States citizens, unless A.I.D. shall other-
wise agree.
b. Travel Arrangements
If, and when, EPA employees are assigned under this
Agreement to serve overseas for A.I.D., they will be
subject to standard U. S. government and A.I.D.
travel regulations. No person shall depart for an over-
seas assignment for A.I.D. without prior clearance
from A.I.D. EPA will arrange for all travel of such
employees originating or terminating in the United
States, subject to reimbursement from A.I.D. Travel
within a country or between foreign countries will be
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GUIDELINES AND REPORTS 3471
arranged by A.I.D. Per diem payments for up to 30
days spent at any one post will be made by EPA,
subject to reimbursement from A.I.D. Per diem pay-
ments for longer periods will be made by the A.I.D.
Mission to which an EPA employee is detailed. How-
ever, A.I.D. may prescribe different procedures where
travel or per diem is payable in local currencies or
from a country trust fund (such as those established
for India, Pakistan, Korea, Tunisia, and Turkey).
Conversion of dollars into local currency for official
or personal use will be done in accordance with U.S.
government regulations.
c. Special Provisions for Long Term Assignments
In some instances a PASA may call for longer assign-
ments, usually two years. In such cases special provi-
sions apply covering such items as the employees'
employment classification, medical benefits, and right
of dependents to be with him at post. Such provisions
shall be spelled out in the authorizing PASA.
B. Training
EPA will furnish assistance with respect to training for
foreign nationals under this Agreement in accordance with
Program Implementation Orders/Participant (PIO/P) pre-
pared by A.I.D. or training outlines in the case of UN fellows
or other A.I.D. sponsored but not directly funded individuals.
PIO/Ps include descriptions of the proposed training activi-
ties, program objectives and suggested sources. Training
programs of more than two weeks will be carried out in
accordance with terms of PIO/Ps and confirmed or amplified
by an exchange of letters. Programs of a shorter duration
may be arranged on an informal basis. Administrative
responsibility for participants, such as arrangements for
payment of per diem, travel, other allowances, and health
insurance will remain with A.I.D. or the sponsoring UN or
other agency which may make such arrangements as appro-
priate to meet program objectives as specified in the PIO/P.
However, EPA will assist with domestic travel arrangements
during the period an A.I.D. participant, UN fellow or other
A.I.D. sponsored person is assigned to EPA. In the event
that a training program requires domestic travel on a group
basis, such as bus charters, EPA will be entitled to reim-
bursement for such travel only in accordance with a letter
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3472 LEGAL COMPILATION—GENERAL
confirming the training arrangements and including instruc-
tions as to the proper fiscal procedures. EPA will cooperate
with other government agencies or contractors, including
universities, undertaking training for A.I.D. in the furnish-
ing of training through EPA. It will also provide training
to A.I.D. employees of the same general nature as that
offered foreign nationals. Training opportunities in pro-
grams conducted by EPA will be made available in accord-
ance with those EPA procedures, including payment of fees,
that are generally applicable to participants in such pro-
grams who are not employees of EPA.
V. PAYMENT FOR SERVICES
A.I.D. will reimburse EPA for services furnished through prop-
erly authorized PASAs or other approved obligating documents
pursuant to this Agreement upon presentation of a correctly pre-
pared Standard Form 1080 or 1081. Fiscal documents should be
submitted to the A.I.D. Controller in Washington citing the perti-
nent appropriation, allotment, PASA, PIO/P, or other number
appearing in the authorizing document.
VL SPECIAL PROVISIONS
A. It is understood that A.I.D. has procedures whereby it can
arrange for technical assistance for countries or organiza-
tions at such entity's expense. Subject to other provisions of
this agreement, EPA is prepared to furnish services in con-
nection with such assistance.
B. Unless otherwise authorized by A.I.D., commodities or equip-
ment procured by EPA under an A.I.D. project will be of
"Selected Free World" origin. "Selected Free World" origin
countries include the United States and most of the develop-
ing free world. EPA should consult A.I.D. as to which coun-
tries other than the United States fall into the "Selected Free
World" category.
C. EPA may contract with private firms and consultants to
obtain expertise not available within EPA, to carry out ac-
tivities under this Agreement. However, any such contract
is to have prior approval by A.I.D., and, if it requires serv-
ices outside the United States by a U.S. citizen, EPA will
insure that persons performing such services meet A.I.D.
security requirements in accordance with Section IV.A.2.a.i.
In addition, such persons will be expected to conform to the
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GUIDELINES AND REPORTS 3473
same personal conduct standards as EPA employees serving
outside the United States.
VII. REPORTS
EPA will prepare reports on any activities carried out for A.I.D.
under this Agreement at such times, in such form, and having
such content as the parties may agree.
VIII. DURATION
This Agreement will remain in effect until terminated by
either party on ninety days' written notice.
IX. AMENDMENTS
Amendments may be entered into at any time by the signatories
or by the principal officers of the offices designated in Paragraph
III of this Agreement.
X. EFFECTIVE DATE
This Agreement is effective as of the latest date affixed below.
Approved 5/24/72.
4.7e COOPERATIVE PROGRAM ENTITLED MODULAR-SIZED
INTEGRATED UTILITY SYSTEMS MEMORANDUM OF
UNDERSTANDING BETWEEN THE ENVIRONMENTAL
PROTECTION AGENCY AND THE DEPARTMENT OF HOUS-
ING AND URBAN AFFAIRS (1972)
A. Background
The Department of Housing and Urban Development (HUD)
under the research authority as authorized in Title V, Sec-
tions 501 and 502 of the Housing and Urban Development
Act of 1970 (Public Law 91-609) is engaged in a Modular-
Sized Integrated Utility Systems (MIUS) Program. The
Program is being conducted by the HUD, NASA, AEG, NBS,
EPA and NSF as a cooperative activity.
In concept Modular-Sized Integrated Utility Systems are
combined processing plants located within community mod-
ules that generate electricity; use residual and recycled en-
ergy from waste products for heating, air conditioning, hot
water, etc.; process water; and treat liquid and solid wastes.
Among the program goals are more efficient resource utiliza-
tion, minimum environmental impact and greater flexibility
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3474 LEGAL COMPILATION—GENERAL
in urban development and redevelopment as compared to the
current fragmented approach to providing these same
services.
There are three Program Phases. Phase I has been in
progress for several years and will end with the completion
of the detailed planning, analysis, concept selection, etc., that
is required before committing to demonstration projects.
It is planned that Phase II will contain several demonstra-
tions and Phase III will comprise me'ans for encouraging
private sector use of the proven systems technology.
It is logical and appropriate for the EPA to enter into this
cooperative effort pursuant to Reorganization Plan 3 of 1970
creating EPA to assure the protection of the environment
by consideration of the environment as a single inter-related
system and reinforcing efforts among other Federal agencies
with respect to the impact of their operations on the en-
vironment.
B. Statement of Intent
The undersigned parties agree:
1. That the EPA will participate in the phases and elements
of the program with HUD which has overall program
responsibility.
2. That the EPA will furnish appropriate personnel to pro-
vide the Program participants with technical informa-
tion, assistance, advice, reviews and in some instances
direction in the areas of standard-setting related to pol-
lution abatement and control, solid waste management,
air pollution control, waste water treatment and other
water activities.
3. That EPA will review the Modular-Sized Integrated
Utility Systems Program Plan (8/27/71 draft now avail-
able) and subsequent issues of that plan and provide
HUD with comments and proposed work activities to be
performed by EPA.
4. That EPA will participate in the MIUS concept selection
for demonstrations for the purpose of providing EPA
concurrence in the selections.
5. That EPA and HUD may jointly elect to perform demon-
strations in specific subsystem areas of MIUS which
would be denned in supplements to this Agreement.
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GUIDELINES AND REPORTS 3475
6. That specific work, to be carried out, other than informal
consulting-type efforts, will be defined in scope-of-work
statements supplementary to this Agreement.
7. That such numbered supplements be negotiated and
signed as necessary by the Assistant Secretary for Re-
search and Technology, HUD, and the Assistant Admin-
istrator for Research and Monitoring of the EPA.
APPROVED:
Stanley M. Greenfield
Assistant Administrator for Research & Monitoring
Environmental Protection Agency
May 11, 1972
Date
Harold B. Finger
Assistant Secretary for Research and Technology
Department of Housing and Urban Development
April 29, 1972
Date
irU.S. GOVERNMENT PRINTING OFFICE: 1974 0—466-441
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U.S. Environmental Protection Agency
Region V, Library
230 South Dearborn Street ,X""
Chicago, Illinois 60604 ,-;,.^
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