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General Counsel Opinions
From the
OFFICE OF GENERAL
COUNSEL
UNITED STATES
ENVIRONMENTAL
PROTECTION AGENCY
January 31, 1980, Through June 7, 1985
U.S. Environmental Protection Agency
Region V, Library
230 South Dearborn Street
Chicago, Illinois 60604
Washington, D.C. : 1987
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United States Environmental Protection Agency
Office of General Counsel (LE-130)
Washington, D.C. 20460
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Administrators
Douglas M. Costle (1977-1981)
Anne M. Burford (1981-1983)
William D. Ruckelshaus (1983-1985)
Lee M. Thomas (1985-Present)
Deputy Administrators
Barbara D. Blum (1977-1981)
John W. Hernandez Jr. (1981-1983)
Alvin L. Aim (1983-1985)
A. James Barnes (1985-Present)
General Counsels
Michele B. Corash (1979-1981)
Robert M. Perry (1981-1983)
A. James Barnes (1983-1985)
Francis S. Blake (1985-Present)
iii
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FOREWORD
This volume contains selected legal opinions of the General
Counsel of the United States Environmental Protection Agency
(EPA), Washington, D.C.* These legal opinions have been se-
lected for publication as having general applicability and con-
tinuing interest to EPA, State and local governments, or the
private sector.
These legal opinions are for the period January 31, 1980,
through June 7, 1985. Although these legal opinions are only a
small portion of the opinions rendered by the Office of Gener-
al Counsel, they cover all the major EPA program areas au-
thorized by Federal statutes.
These legal opinions have been lightly edited for format,
syntax, and clarity, but have not been altered in any way to
change the content of the opinions as originally issued. Some
opinions refer to attachments to the original opinions; these
references remain, but the attachments are not included in this
volume.
Each legal opinion was issued in response to a request for an
opinion. It was based on the Federal statute and regulations
that were in effect at the time and may have been based upon
a particular and unique set of facts. Any person intending to
rely on a position adopted or an interpretation expressed in
these legal opinions is advised to take these factors into con-
sideration.
The authority of the Office of General Counsel to render
legal opinions is derived from the authority vested in the EPA
"The Office of General Counsel acknowledges the assistance of Joseph Foote,
Esq., in preparing this volume for publication.
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Administrator by Reorganization Plan 3 of 1970 and other Fed-
eral environmental statutes administered by EPA. 40 C.F.R.
§ 1.31.
vi
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OPINIONS IN THIS VOLUME
Contents
AIR Page
Steel Industry Compliance Dates Later Than
December 31, 1982 (December I, 1981) 1
Insulation of Enforcement Attorneys From
Review of Steel "Stretch-Out" Applications
(March 29, 1982) 8
Clean Air Act Restrictions Applying to State
Implementation Plan Revisions Due on July 1,
1982 (Approx. June 25, 1982) 13
The "Construction Moratorium" Under the
Clean Air Act (July 12, 1983) 22
Promulgation of Active Mill Tailings Standards
(September 20, 1983) 28
SOLID WASTE
Joint and Several Liability Under the Compre-
hensive Environmental Response, Compensa-
tion, and Liability Act of 1980 (July 27,
1981) 33
Applicability of Section 102(2)(C) of the Na-
tional Environmental Policy Act of 1969 to
Response Actions Under Section 104 of the
Comprehensive Environmental Response,
Compensation, and Liability Act of 1980
(September 1, 1982) 41
Liability Under the Comprehensive Environmen-
tal Response, Compensation, and Liability Act
of 1980 for Releases of Hazardous Substances
in Amounts Less Than "Reportable Quanti-
ties" (December 15, 1982) 53
Resource Conservation and Recovery Act Regu-
lation of Wastes Handled by Department of
Energy Facilities (June 22, 1983) 55
vii
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Relationship of the Resource Conservation and
Recovery Act to the Department of Energy's
Activities Under the Atomic Energy Act (Jan-
uary 19, 1984) 60
Legal Issues Concerning Incineration of Hazard-
ous Wastes at Sea (March 1, 1984) 69
WATER
Jurisdiction of Sections 402 and 404 of the
Clean Water Act Over Discharges of Solid
Waste in Wetlands (Approx. January 31,
1980) 87
Applicability of the Part 25 "Public Participa-
tion" Regulations to the Approval of Var-
iances from Water Quality Standards (Sep-
tember 4, 1980) 93
Basic Legal Requirements Concerning Effluent
Guidelines Under the Clean Water Act (Octo-
ber 19, 1981) 96
Approval of Partial State National Pollutant
Discharge Elimination System and Section 404
Programs (January 15, 1982) 101
Interpretation of Section 301(b)(l)(C) of the
Clean Water Act (February 23, 1982) 107
Delegation of EPA's Permitting Authority Under
the Clean Water Act to Permitting Authorities
Under the Surface Mining Control and Recla-
mation Act of 1977 (June 2, 1982) 113
Waivers for Federal Facilities Under Section
301(h) of the Clean Water Act (December 16,
1982) 120
Legal Issues Concerning Section 404(b)(l)
Guidelines (March 17, 1983) 121
Applicability of Section 404 of the Clean Water
Act to Certain Channelization and Stream
Maintenance Activities (April 5, 1983) 132
Clean Water Act Jurisdiction Over Springs in
Ash Meadows, Nevada (July 5, 1983) 136
viii
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EPA's Authority to Pay Expenses Associated
With Forum to Discuss Matters Pertaining to
the Pending Application to Incinerate Chemi-
cal Wastes in the Gulf of Mexico (January 9,
1984) 140
State National Pollutant Discharge Elimination
System Control Over Forest Service Property
and Operations (May 11, 1984) 142
Issues Concerning the Interpretation of Section
404(f) of the Clean Water Act (February 8,
1985) 144
PESHCIDES AND TOXIC SUBSTANCES
Tolerance Issues Relating to Ethylene Dibromide
(January 3, 1984) 159
The Relationship of the Toxic Substances Con-
trol Act to Other Federal Programs Under
Section 9 (January 31, 1985) 167
Section 9(a) of the Toxic Substances Control
Act (June 7, 1985) 178
GRANTS
Request for Office of General Counsel Opinion
on the Use of Confidential Information
During Criminal Investigations and Trials
(May 14, 1981) 199
EPA Responsibility to Contractors' Employees
(September 9, 1981) 204
Status of Issues Information System Under the
Freedom of Information Act (June 11, 1982) 207
Construction Grant Funds Allotted for New
York City Convention Center Project (Sep-
tember 27, 1983) 209
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AIR
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December 1, 1981
MEMORANDUM
SUBJECT: Steel Industry Compliance Dates Later Than
December 31, 1982
FROM: Robert M. Perry
General Counsel
TO: William A. Sullivan, Jr.
Deputy Associate Administrator
for Enforcement Policy
You have requested my advice as to the circumstances under
which a steel company may obtain extensions of compliance
dates beyond December 31, 1982, under the Clean Air Act,
without having to apply for such an extension under the Steel
Industry Compliance Extension Act of 1981, Pub.L. 97-23, 42
U.S.C. § 7413(e) {Compliance Extension Act).
Question
May a company that is eligible to apply for relief under the
Compliance Extension Act obtain compliance extensions beyond
December 31, 1982, without resort to the Act?
Answer
Yes—but only by meeting the requirements for a Delayed
Compliance Order (DCO) set out in § 113(d) of the Clean Air
Act, 42 U.S.C. § 7413(d).
Discussion
Background
The Clean Air Act provides that each area of a State that has
been designated under § 107(d), 42 U.S.C. §7407(d), as not
meeting an ambient air quality standard ("nonattainment area")
must submit a revision to its State Implementation Plan (SIP)
that will assure that that standard will be attained and main-
tained as expeditiously as practicable, but no later than Decem-
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her 31, 1982. §172(a)(l), 42 U.S.C. §7502(a)(l).1 These revi-
sions, called Part D plans, must, inter alia, "contain emission
limitations, schedules of compliance and such other measures as
may be necessary to meet the requirements of [§ 172]."
§ 172(b)(8), 42 U.S.C. § 7502(b)(8).
For the pollutants of concern here (particulates and SQz),
this deadline is absolute—Congress provided no means by
which the Environmental Protection Agency (EPA) or the States
could extend the deadline beyond December 31, 1982. Accord-
ingly, all sources in a nonattainment area must be in compli-
ance with the requirements of a State's Part D plan for that
area by December 31, 1982, for otherwise the State cannot
assure attainment of the standard by that date. The precise
question is therefore whether there are any statutory mecha-
nisms by which a source may nonetheless be permitted to
comply with the Part D plan at a later date.
Permissible Means of Extending Compliance Dates by Administrative Action
The language and structure of the Clean Air Act indicate that
Congress explicitly addressed the question of the means by
which a source may be permitted to comply with a Part D
plan after December 31, 1982, and concluded that such exten-
sions may only be granted under limited and precisely defined
circumstances. In particular, Congress provided in § 110(i) of
the Act, 42 U.S.C. § 7410(i), that:
Exception for a primary nonferrous smelter order
under section 119, a suspension under section
110(f) or (g) (relating to emergency suspensions),
an exemption under section 118 (relating to certain
Federal facilities), an order under section 113(d)
(relating to compliance orders), a plan promulga-
tion under section 110(c), or a plan revision under
section 110(a)(3), no order, suspension, plan revision, or
other action modifying any requirement of an applicable im-
plementation plan may be taken with respect to any station-
ary source by the State or by the Administrator. (Empha-
sis added.)
^or ozone and carbon dioxide, § 172(a)(2), 42 U.S.C. § 7502(a)(2), allows an
extension of the attainment deadline under certain circumstances to December
31, 1987. However, that extension is not relevant here, for iron and steel
sources are principally concerned with SIP requirements for the control of par-
ticulates and SOs, for which the attainment deadline is December 31, 1982.
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Section 110(i) thus forbids the Administrator from modifying
any SIP requirement unless she follows one of the procedures
outlined above. Since a compliance date extension effectively
modifies a SIP, that extension can therefore only be made by
following one of those procedures.2
Of these procedures, only §§110(a)(3), 110(c), and 113(d)
warrant discussion.3 However, the logic and legislative history
of the 1977 amendments compel the conclusion that compliance
extensions may not be granted through a SIP revision submit-
ted by the State and approved by EPA under § 110(a)(3) or
through a federally promulgated SIP revision under § 110(c). As
noted above, the Act sets December 31, 1982, as an absolute
deadline by which States must demonstrate attainment of the
ambient air quality standards. Clearly, a State could not make
such a demonstration if it allowed sources to meet a post-1982
compliance date for emission limitations designed to meet the
1982 deadline.4 Moreover, the legislative history confirms that
Congress expressly considered and rejected use of SIP revisions
as a means of extending compliance dates. As the House
noted:
As is made clear in new section [110(i)], the com-
mittee language is intended to confirm the correct-
ness of the Supreme Court's opinion in the Train
case. If a State variance or other delaying action
will not prevent or interfere with the timely at-
tainment and maintenance of the national ambient
standards or with the policy of prevention of sig-
nificant deterioration, and the Administrator so de-
termines, then such a variance may be treated as
a variance and approved by the Administrator
2 Section 110(i) was inserted in 1977, well before the Compliance Extension
Act was passed. Accordingly, it obviously does not preclude use of that Act to
allow compliance date extensions.
3 Section 118 is irrelevant because it applies only to Federal facilities. Section
110(f) concerns fuel-burning sources (e.g., power plants). Section 110(g) involves
a potential plant closing due to a SIP requirement, which presumably is not
applicable here.
4 Of course, a State could extend a compliance deadline past 1982 if that ex-
tension would not interfere with the State's demonstration of attainment. For
example, the State could grant a compliance extension for a source if it modi-
fied the SIP in some fashion so as to assure attainment by the 1982 deadline.
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under section 110(a)(3) of the act. On the other
hand, if a State variance or other delaying would
have any such effect, then it may only be issued
in accordance with the procedures, criteria, and
time constraints specified in section [113(d)J.
H.R. Rep. 294, 95th Cong., 57; see also S. Rep. 127, 95th Cong.,
45.5 Accordingly, under the Act (as codified prior to passage of
the Compliance Extension Act), EPA may only extend compli-
ance deadlines by following the procedures for issuing a DCO
under § 113(d) of the Act, 42 U.S.C. § 7413(d).6
The legislative history of § 113(d) further compels the
conclusion that that section provides the only avenue for ex-
tending compliance dates under the Act. Prior to the 1977
amendments to the Act, EPA had followed a practice of issu-
ing enforcement orders under § 113(a) of the Act, 42 U.S.C.
§ 7413(a), which allowed sources additional time in which to
comply with SIP requirements. Both the House and the Senate
felt that this was "of questionable validity" under the Clean
Air Act, H.R. Rep. 294, 95th Cong., 55; see also S. Rep. 127,
95th Cong., 45. As the Senate noted:
States normally cannot make these orders part of
the SIP because the orders, allowing the source
until some time after the necessary attainment
date, are technically inconsistent with the attain-
ment and maintenance deadlines specified in the
Act. This leaves the source subject to citizen suits
and to potential inconsistent enforcement action
taken by the Administrator.
S. Rep. 127, 95th Cong., 45. Accordingly, Congress added
§ 113(d) to the Act precisely "to remedy that practice, [thereby]
prohibiting delay in compliance or the issuance of any enforce-
ment order except under the terms specified in [that] section."
8 In Train v. NRDC, 421 U.S. 60 (1975), the Supreme Court held that variances
of a SIP requirement may only be issued if they are first approved by EPA
and if they do not interfere with the State's demonstration of attainment and
maintenance of ambient standards.
6 A DCO is available for any source which demonstrates that it "is unable to
comply with any requirement of an applicable implementation plan."
§113(d)(l), 42 U.S.C. §7413(d)(l). If the source receives a DCO, then it must
comply with the applicable SIP requirement no more than 3 years after the
date specified in the SIP. § 113(d)(l)(D), 42 U.S.C. §7413(1)(D). Thus, §113
allows compliance extensions up to December 31, 1985.
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Id. In addition, Congress inserted § 110(i) to expressly preclude
EPA from using any other administrative method of extending
compliance deadlines. See H.R. Rep. 294, 95th Cong., 57.
In sum, the Administrator clearly lacks authority to extend
compliance deadlines by any administrative procedure other
than that provided by § 113(d) of the Act, or by newly codi-
fied § 113(e), which was added by the Compliance Extension
Act. However, a question remains as to whether the Adminis-
trator may join in a judicially issued consent decree that au-
thorizes compliance dates beyond December 31, 1982.
Permissible Means of Extending Compliance Dates by Consent Decrees
For iron and steel sources, at least, the language of the Com-
pliance Extension Act precludes the use of judicially issued
consent decrees to extend compliance dates beyond 1982,
unless those decrees meet the criteria specified in the Act. The
Compliance Extension Act provides that the Administrator may
enter into a consent decree allowing an iron and steel source
to extend its compliance dates up to December 31, 1985, pro-
vided that, inter alia:
The Administrator and [the owner of the source]
consent to entry of Federal judicial decree(s) estab-
lishing a phased program of compliance to bring
each stationary source at all of such person's iron-
and steel-producing operations into compliance
with the [SIP] ... as expeditiously as practicable
but no later than December 31, 1982, or, in the
case of sources for which extensions of compliance
have been granted, no later than December 31,
1985 ....
§ 113(e)(l)(C), 42 U.S.C. § 7413(e)(l)(C). By its terms, then,
§ H3(e) forbids the Administrator from agreeing to a consent
decree that allows compliance extension beyond December 31,
1982, unless the sources involved meet the criteria f § 113(e)(l).
This reading of § H3(e) is amply buttressed by the legisla-
tive history of the Compliance Extension Act. First of all, Con-
gress predicated passage of the Act in part upon the difficult
financial posture of the steel industry, see, e.g., H.R. Rep. 121,
97th Cong., 8-9, and in part upon its understanding that the
industry was facing mandatory December 31, 1982, compliance
deadlines. For example, the House Report states that "[ujnder
the present law, the Clean Air Act Amendments of 1977, the
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deadline for compliance with pollution control requirements is
December 31, 1982." Id. at 1.
More important. Congress intended that this December 31,
1982, deadline be extended only upon a showing that the
funds the steel industry would otherwise spend on pollution
control were needed for modernization. Absent such a showing,
the December 31, 1982, date would continue to apply. Thus,
the House stated that "[ujnder the proposal, modernization of
the steel industry is the only justification for the extension of
the December 31, 1982 compliance date," id. at 10; and it went
on to note:
The phased program [required by § 113(e)] will
thus lead to compliance as expeditiously as practi-
cable but no later than December 31, 1982, unless
the source has received an extension under this
subsection, and then not later than December 31,
1985 for such sources receiving an extension.
Id. at 11; see also S. Rep. 133, 97th Cong., 2, 5.
Congress therefore provided in the Compliance Extension Act
that the Administrator may not enter into consent decrees with
the steel industry that allow steel sources to extend compliance
dates beyond December 31, 1982, unless those sources meet the
criteria of the Act. The Act is codified as § 113(e) of the Clean
Air Act. If the Administrator were to initiate an enforcement
action under any other section of the Clean Air Act, and then
consent to a judicial decree allowing a compliance date exten-
sion, that decree would fundamentally conflict with the re-
quirements of § 113(e). Therefore, in view of the standard prin-
ciple of statutory construction that statutes are to be read so
as to make the various provisions consistent with each other,
and in view of the clear legislative intent underlying the pas-
sage of the Compliance Extension Act in 1981, well after the
Clean Air Act was amended in 1977, the Administrator appears
to lack authority to join with steel sources in consent decrees
that extend compliance dates beyond December 31, 1982,
unless those decrees are issued pursuant to the Compliance Ex-
tension Act.7
7 Not analyzed here is the possibility that in the context of an EPA enforce-
ment action under § 113(b), a court might on its own motion grant a compli-
ance date extension past 1982.
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Conclusion
The Administrator may extend compliance dates beyond De-
cember 31, 1982, only if she enters into a consent decree pur-
suant to the Compliance Extension Act (now codified as
§ H3(e) of the Clean Air Act) or if she issues a delayed com-
pliance order pursuant to § 113(d) of the Clean Air Act.
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March 29, 1982
MEMORANDUM
SUBJECT: Insulation of Enforcement Attorneys From
Review of Steel "Stretch-Out" Applications
FROM: Robert M. Perry
General Counsel
TO: William A. Sullivan, Jr.
Enforcement Counsel
Issue
Must enforcement attorneys who are involved in enforcement
actions against steel facilities be insulated from review and rec-
ommendations on applications for steel stretch-out extension
involving the same facilities?
Answer
No. Steel stretch-out extensions may only be granted through
consent decrees entered in a Federal court. Accordingly, review
of stretch-out applications should be seen as an exercise of the
Environmental Protection Agency's (EPA's) enforcement func-
tion, and there is no constitutional or applicable statutory pro-
hibition against the same person working on more than one
enforcement action involving the same facility.
Background
Congress amended the Clean Air Act in July 1981 by adding a
new §113(e). Pub.L. 97-23 (July 17, 1981). This section allows
the Administrator to agree to schedules in Federal court con-
sent decrees that may extend until December 31, 1985, the
deadline by which iron- and steel-producing operations must
comply with emission requirements.
In light of the Seventh Circuit's decision in Bethlehem Steel
Corp. v. EPA, 638 F.2d 994 (1980), you have asked whether en-
forcement attorneys involved in pending or proposed enforce-
ment actions against steel companies must be insulated from
the review of applications under § 113(e) for extensions of time
for the facilities involved. In Bethlehem, the Seventh Circuit
ruled that EPA's action allowing review of a State-approved
delayed compliance order (DCO) for a Bethlehem facility under
§ 113(d) by enforcement attorneys who were then litigating an
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enforcement action against Bethlehem over the same facility
"raise[d] significant questions" about the "fundamental fair-
ness" of the review process, and vacated the Agency's disap-
proval of the DCO.1 The court emphasized the similarity of
the issues involved in the two actions, the Agency's refusal to
include certain internal memoranda in the record supporting the
disapproval, and indications that the enforcement attorneys had
effectively influenced the Agency to disapprove the regulatory
§ 113(d) extension in order to preserve their enforcement
action.
Discussion
A. Commingling of Functions Generally
The goal of the separation of functions doctrine is to ensure
fairness in decisionmaking by maintaining a distinction between
adversarial advocacy functions, such as enforcement, and essen-
tially "neutral" decisionmaking functions, such as agency adju-
dication and rulemaking. The enforcement function is prosecu-
torial: it involves asserting a position in an effort to obtain
compliance with the law or to impose a sanction for violating
the law. See, e.g., Davis, Administrative Law Treatise, § 13.07 (1958),
5 U.S.C. §§551(10), 554(d). By contrast, the regulatory function
involves an essentially objective effort to "implement, interpret,
or prescribe law or policy." 5 U.S.C. § 551(4). In practice the
distinction between functions is generally maintained by the
use of different personnel to perform the tasks related to each
function. Review of stretch-out applications by enforcement at-
torneys may appear to be a commingling of functions when
those attorneys are involved in enforcement actions against the
applicant because they are advocates engaged in what appears
to be a regulatory function: implementing or interpreting
§ 113(e) with respect to the applicant by determining eligibility.
The general rule is that "the combination of investigative
[prosecutorial] and adjudicative functions does not, without
more, constitute a due process violation"; rather, such a finding
rests on "special facts and circumstances presented in a case."
1 The Court held that the Administrative Procedure Act, 5 U.S.C. §§ 553, 554,
556 did not apply to EPA actions under § 113. This result appears to be
sound; and as no other specific statutory separation of functions requirements
apply, the analysis in this memorandum addresses only the due process issue
raised by Bethlehem.
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Withraio v. Larldn, 421 U.S. 35, 58 (1975). "The incredible varie-
ty of administrative mechanisms in this country will not yield
to any single organizing principle." 421 U.S. at 52. And in re-
viewing particular circumstances, a presumption of honesty and
integrity must be overcome before a due process violation may
be found.
1. Specific applications of the doctrine
The combination of adjudicative and regulatory functions with
discretionary investigative or prosecutorial functions has been
upheld in most of the statutory and factual situations in which
the question has been presented.2 Indeed, the courts have
never in recent years struck down in the abstract—as applied
to all cases—any administrative review system on the grounds
of commingling of functions. In both of the leading cases in
which agency rulings were overturned because commingled
prosecutorial and adjudicative functions violated due process,
Amos Treats & Co. v. Securities Exchange Commission, 306 F.2d 260
(D.C. Cir. 1962) and American Cyanamid Co. v. Federal Trade Com-
mission, 363 F.2d 757 (6th Cir. 1966), individuals who had been
so actively involved in investigating and prosecuting violations
as to have "prejudged" the merits subsequently became mem-
bers of the adjudicatory board that ultimately ruled on the
merits of each case. Neither of these cases found the statutory
scheme inherently violated due process.
2. The relevance of Bethlehem
Bethlehem also turns on the specific circumstances involved, and
should not be viewed as establishing any general principles for
§ 113(d). It is evidently the only case to date in which the ac-
tions of agency personnel other than the ultimate decision-
makers have been the basis of a finding of fundamentally
unfair commingling of functions. In Bethlehem, the Agency did
not act on the State-issued order within the 90-day period al-
lowed by § 113(d)(2), but did pursue its enforcement case
against the facility covered by the order during that time.
Memoranda from attorneys involved in the enforcement case
2 See, e.g., Withrmo, supra (medical examining board may constitutionally initiate
investigation of misconduct, suspend license, and press criminal charges);
Martin-Trigona v. Underwood, 529 F.2d 33 (7th Cir. 1975) (State bar committee
may investigate, advocate, and conclusively determine lack of fitness for admis-
sion); Richardson v. Pereles, 402 U.S. 389, 91 S.Ct. 1420 (1971) (Social Security
hearing examiner may investigate and determine eligibility for benefits).
10
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outlined objections to the order based on the impact the order
would have on the case; some of these materials were withheld
from the rulemaking docket.
The court's emphasis on facts and precedent related to "ex
parte" communications, the strategic timing of Agency actions
to synchronize with the enforcement litigation, and the Admin-
istrator's use of language "substantially identical" to language
found in one memorandum from the lead enforcement attor-
ney, 638 F.2d at 1008-1010, reveal the court's reliance on a
unique combination of factors to reach its conclusion; the opin-
ion comes very close to stating that the enforcement attorneys
improperly made the final decision. Even under § 113(d), there-
fore, the Bethlehem case seems considerably removed from the
customary review of DCOs by enforcement personnel, which
involves only a review of the provisions of the order to ensure
that statutory requirements are met.
B. Application to Section 113(e)
1. Statutory differences
Several significant differences between § 113(d) and § 113(e)
suggest that as a general rule, review of § 113(e) applications
by enforcement attorneys should not give rise to improper
commingling of functions.
In contrast with § 113(d), which is regulatory in nature,
§ 113(e) can only be construed as an enforcement function in
which the Agency's enforcement personnel are necessarily in-
volved at several important steps. Under § 113(e), the sole
means of implementing an extension of time is the entry or
modification of a consent decree in a Federal court. Since the
entry of such a decree must be preceded by the filing of a
complaint, it is clear that enforcement attorneys must be in-
volved. Moreover, the decree granting the extension must es-
tablish or incorporate schedules of compliance for all the appli-
cant's iron- and steel-producing operations and facilities.
§ 113(e)(l)(C). The broad scope of this undertaking plainly calls
for participation by enforcement attorneys familiar with any
previous violations, agreements, or negotiations involving the
facilities in question. Similarly, certain factual findings must be
made before the Administrator may agree to an extension, in-
11
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eluding a finding that the applicant is in compliance 3 with all
existing judicial decrees concerning air pollution from its iron-
and steel-producing facilities. All of these factors indicate that
Congress viewed § 113(e) extensions of time as a part of the
Federal enforcement process, rather than a quasi-adjudicatory
administrative action.
The provisions for judicial review support this conclusion.
Judicial review of any finding or other action on an extension
application may be had only in a district court enforcement
action brought against the applicant (§§ 113(e)(7), 113(b))/ not
in the courts of appeals as for review of § 113(d) and other
administrative regulatory actions. § 307(b). Moreover, § H3(e)
explicitly contemplates extension orders as a means of resolving
pending enforcement litigation, and incorporates judicial review
of extension-related decisions into those same proceedings.
§113(e)(7)(B).
Conclusion
These contrasts in statutory provisions indicate that the Bethle-
hem holding should not be applied to the review of § 113(e)
applications. Bethlehem involved a narrowly defined administra-
tive regulatory function under § 113(d); the Agency's enforce-
ment function was not a part of the mandated review process,
and the court reacted strongly against what it perceived to be
an unfair commingling of enforcement and regulatory functions
in which the Agency's regulatory decisions were improperly in-
fluenced by the desire to preserve the enforcement case. Sec-
tion 113(e), by contrast, authorizes the Administrator to negoti-
ate a certain type of settlement in certain disputes. It creates a
discretionary extension mechanism which is part of the en-
forcement process. Neither logic nor case law requires the use
of different personnel for different portions of the same en-
forcement action. Indeed, Congress in § 113(e) explicitly re-
quired findings and procedures that critically depend on the
participation of personnel familiar with all other present and
proposed enforcement proceedings against the company or the
specific facilities involved.
3 De minimis violations may be allowed at the discretion of the Administrator;
the determination that a given violation is de minimis would seem to be within
the scope of enforcement attorney's expertise.
12
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(Approx.) June 25, 1982
MEMORANDUM
SUBJECT: Clean Air Act Restrictions Applying to State
Implementation Plan Revisions Due on July 1, 1982
FROM: Robert M. Perry
General Counsel
TO: Sonia Crow
Regional Administrator, Region IX
You have asked us three questions relating to the manner in
which the Clean Air Act restrictions on new source construc-
tion and Federal funding apply to States that are required to
submit plan revisions by July 1, 1982.
Background
1. SIP Revision Requirements
Section 110 of the Clean Air Act requires each State to have
in effect a State Implementation Plan (SIP) to attain the na-
tional ambient air quality standards. Prior to 1977, most areas
were required to attain these standards by 1975. In 1977, how-
ever, Congress recognized that many areas had not yet attained
these standards and would need considerably more time to do
so. Accordingly, the 1977 Amendments to the Clean Air Act
established new attainment dates and additional planning re-
quirements for such "nonattainment" areas. These provisions
are found primarily in a new "Part D" to Title I, §§ 171-178.
Section 172(a)(l) establishes December 31, 1982, as the new
deadline for attaining the standards in nonattainment areas.
Section 172(a)(2) provides for a further extension of this new
deadline in areas that demonstrate that they cannot attain
either the o/one or carbon monoxide (CO) standards by De-
cember 31, 1982, despite the implementation of all reasonably
available measures. Such areas may request an extension to
December 31, 1987.
Areas that obtain extensions to 1987 must submit two SIP
revisions: one under §§ 172(a)(l) and 172(a)(2), and one under
§ 172(c). Under § 172(a)(2), the first plan revision must contain
the request for an attainment date extension. It must also re-
quire the implementation of all control measures determined to
be "reasonably available" in that area, providing for these
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measures all of the commitments and assurances required under
§ 172(b). Id. Under § 172(c), the second plan revision must con-
tain additional "enforceable measures" needed to assure attain-
ment by 1987.
The deadlines for the two plan revisions are found in
§ 129(c) of Pub.L. 95-95, one of the uncodified provisions of
the Clean Air Act Amendments of 1977. The revision required
under §§ 172(a)(l) and 172(a)(2) must be submitted to the En-
vironmental Protection Agency (EPA) by January 1, 1979. The
second revision must be submitted on or before July 1, 1982.
2. Restrictions on Growth and Federal Funding
States that fail to revise their plans to meet the Part D re-
quirements are subject to three separate restrictions.
Section 110(a)(2)(I) prohibits the construction of major new
sources and major modifications of existing sources after July
1, 1979, in any area that does not have in effect a SIP meeting
all of the Part D requirements. This construction ban is a
mandatory measure.
Section 176(a) requires EPA and the Department of Trans-
portation (DOT) to withhold funds from any area that needs
transportation controls to assure attainment if the Administrator
finds that the State has not submitted (or made reasonable ef-
forts to submit) in 1979 or 1982 a plan that considers all of
the requirements of § 172. These funding cutoffs are also man-
datory measures.
Section 316(b) gives the Administrator discretion to withhold
grants for the construction of sewage treatment facilities under
the Clean Water Act in any area where a State fails to "have
in effect" an approved Part D plan.
Discussion
Because of the number of questions you have asked and the
complexity of some of our responses, we will not follow the
usual format for a legal memorandum. Instead, we will restate
each question in full and follow it with our response. Each re-
sponse will address separately the construction moratorium, the
Clean Air Act and highway funding limitations, and the
sewage treatment grant limitations.
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Question 1: What discretionary sanctions may be imposed and
what mandatory sanctions must be imposed if:
a) A State fails to submit the required SIP revi-
sions by July 1, 1982?
Response
1. Construction Moratorium
The construction moratorium would not apply if a State failed
to submit a SIP revision by July 1, 1982, because that deadline
is not a Part D requirement. However, there is a Part D re-
quirement that becomes applicable on the same date. Section
172(c) requires all plans for extension areas to contain, by July
1, 1982, enforceable measures to assure attainment by 1987.
Failure to have such measures in effect by that date would
trigger the ban. Before the ban could come into effect, the
Agency would have to make a finding that a plan does not in-
clude the necessary "enforceable measures." This brief response
is explained in greater detail below.
a) July 1, 1982, submittal deadline:
Under § 110(a)(2)(I), the construction moratorium applies where
a State does not have in effect a plan that meets all of the
requirements of Part D. However, none of the Part D provi-
sions actually require States to submit second plan revisions for
extension areas by July 1, 1982. Section 172(c) refers to this
second revision, but does not establish a date for its submittal.
The July 1, 1982, deadline appears in § 129(c) of Pub.L.
95-95, one of several uncodified provisions of the Clean Air
Act Amendments of 1977. Section 129(c) requires States to
adopt and submit by July 1, 1982, plans for extension areas
that meet all of the requirements of §§ 172(b) and (c). Since
§ 129(c) is not physically located in Part D, it is possible to
argue that a failure to submit a plan revision by July 1, 1982,
would not trigger the construction moratorium.
The legislative history of the 1977 Amendments supports this
argument. The Senate bill placed the July 1, 1982, deadline for
extension areas and the substantive requirements for such areas
in a new "Section 110(h)." The Senate Report explained that
all of the requirements of § 110(h) were to be considered as
"preconditions" for new source construction in carbon monox-
15
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ide or ozone nonattainment areas. S. Rep. 177, 95th Cong., 1st
Sess. 56 (1977).
However, the conference bill separated the deadlines from
the substantive requirements. The conference bill placed all the
substantive requirements for SIP revisions for nonattainment
areas into § 129(b), which became Part D. The deadlines for
submitting plans to meet these requirements were placed in
§ 129(c), which was not inserted into Part D. This suggests
that Congress did not intend the July 1, 1982, deadline to be a
Part D requirement.
b) Enforceable measures requirement:
Although the July 1, 1982, plan submittal deadline will not
trigger the construction ban, there is a Part D requirement that
becomes applicable on the same date. Failure to meet this re-
quirement could require EPA to impose the ban in extension
areas. This requirement is found in § 172(c), which requires
SIPs for extension areas to include, by July 1, 1982, "enforce-
able measures" needed to attain the standards by 1987.J A
failure to provide needed measures by July 1, 1982, would trig-
ger the construction ban, because the measures are Part D re-
quirements.
EPA recently concluded that, prior to imposing the ban, EPA
must review approved (or conditionally approved) Part D plans
to determine whether Part D requirements have been met. This
gives the Agency more flexibility in timing the imposition of
the ban. Further details are provided in our response to your
question 2, concerning procedures for applying the restrictions.
2. Limitations on Clean Air Act and Transportation Grants
Although the July 1, 1982, deadline is not a Part D require-
ment, § 176(a) would apply. Section 176(a) specifically states
that EPA and DOT must withhold funds if EPA finds that a
State failed to submit (or to make reasonable efforts to submit)
a plan by the July 1, 1982, deadline.2
1 Section 172(c) requires these enforceable measures to be "in effect" by July
1, 1982. The measures would have to be approved by EPA before they would
be "in effect." Thus, as a practical matter, § 172(c) requires States to submit
these measures to EPA well before July 1, 1982.
2 Section 176(a) also requires that an area must need transportation controls to
attain the standards. As a practical matter, however, virtually every area that
Continued
16
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However, EPA and DOT do not have to start withholding
funds on July 1. Section 176(a) provides that no funds need to
be withheld so long as EPA finds that a State is making "rea-
sonable efforts" to submit the required SIP revision. This can
provide significant flexibility. For example, EPA imposed fund-
ing limitations in only two States for failure to submit 1979
plan revisions even though most States failed to meet the July
1, 1979, deadline. In effect, EPA determined that most States
were making reasonable efforts to submit the necessary revi-
sions. Ultimately, EPA found that only California and Ken-
tucky were not making "reasonable efforts" to submit approv-
able plans, because legislatures in these States continually failed
to enact the legal authority necessary for a vehicle inspection
maintenance program. EPA did not make this finding until De-
cember 1980, a year and a half after the statutory deadline for
submittal of a 1979 plan revision.3
3. Limitations on Sewage Treatment Construction Grants
Section 316(b) gives the Administrator discretion to withhold
grants for the construction of sewage treatment facilities under
the Clean Water Act in any area where a State fails to "have
in effect" an approved Part D SIP. Accordingly, § 316 could
apply if EPA disapproved a plan for failure to have in effect
the "enforceable measures" required under § 172(c). However,
the Agency is not required to impose this restriction.
EPA has stated that it will use this discretionary authority
only where it finds that a State is not making "reasonable ef-
forts" to meet SIP requirements. Moreover, even if EPA decides
has received an attainment date extension will need transportation control
measures. Extensions are available only for the ozone and CO deadlines.
Mobile sources emit significant amounts of ozone and CO. It is highly unlikely
that any of the areas that have obtained extensions could demonstrate attain-
ment without relying on some control of transportation sources.
3 Even if EPA finds that a State is not making reasonable efforts to submit a
1982 plan, there are exemptions that can greatly reduce the economic impact
of the funding restrictions. § 176(a) exempts funds for transportation projects
with safety, mass transit, or air quality benefits. Moreover, although the statute
does not specifically exempt any Clean Air Act projects, EPA has established
exemptions for Clean Air Act grants with air quality benefits. See the joint
EPA/DOT "Final Policy and Procedures for Section 176(a)" (45 Fed. Reg.
24692, Apr. 10, 1980). Using these exemptions, DOT has funded transportation
projects in California worth $1.2 billion, and EPA has awarded all of the Clean
Air Act grants California requested.
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to impose a funding cutoff, it will exempt funds for projects
that are needed to protect the public health. See EPA's "Policy
and Procedures for Section 316(b)" (45 Fed. Reg. 53382, Aug.
11, I960).4
Question 1. What discretionary sanctions may be imposed and
what mandatory sanctions must be imposed if:
b) A State submits the required revision, but the
submittal indicates attainment by a date later than
the 1987 deadline?
Response
1. Construction Moratorium
Sections 172(a)(2) and 172(c) require plan revisions for exten-
sion areas to provide for attainment no later than December
31, 1987. Because this deadline is a Part D requirement, the
moratorium would apply in any area where a State has sub-
mitted a plan that does not provide for attainment by 1987.
However, before imposing the ban, EPA would have to
review each submittal to determine whether it in fact failed to
provide for attainment by 1987. Accordingly, the ban would
not apply until sometime after July 1, 1982. For further infor-
mation on the procedures involved, see our response to ques-
tion 2.
2. Limitations on Clean Air Act and Transportation Grants
Since attainment by 1987 is a requirement of § 172, the fund-
ing restrictions in § 176(a) would apply if a State has not sub-
mitted a plan or made reasonable efforts to submit a plan that
demonstrates attainment by 1987.
The "reasonable efforts" provision may enable a State to
escape these funding restrictions if it submits a plan showing
that it cannot attain by 1987 despite the implementation of all
available (or all reasonably available) control measures.
The legislative history of § 176(a) provides some support for
this interpretation. Senator Gravel, who introduced an amend-
4 The literal language of § 316(b) does not provide any exemption for a State
that is making reasonable efforts to submit a required plan revision or for
projects needed to protect public health. However, §316(b) gives the Adminis-
trator complete discretion to decide when to cut off sewage treatment funds.
Accordingly, these exemptions merely describe the circumstances under which
the Administrator will exercise this authority.
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ment inserting the "reasonable efforts" language into § 176(a),
explained that he wanted to prevent EPA from restricting
funds in a State where it was impossible to meet the ozone or
CO attainment deadline. See 3 Legislative History of the Clean
Air Act at 1060-1063 (1977). EPA could probably support a
decision to refrain from using § 176(a) if it found that a State
was making every effort to provide for attainment by 1987.
If EPA decided to impose this funding restriction, the ex-
emptions described in our response to question l(a) above
would be available.
3. Limitations on Sewage Treatment Grants
As described in our response to question l(a), this restriction is
discretionary. Accordingly, although EPA could impose these
funding limitations if it found that a State did not have "in
effect" a plan that provided for attainment by 1987, it would
not be required to do so.
Question 2: What is the procedure for implementation of sanc-
tions, and does it vary depending upon whether the sanctions
are mandatory or discretionary?
Response
EPA's procedures do vary, but the variations do not depend on
whether the restrictions are mandatory or discretionary. Further
detail is provided below.
1. Construction Moratorium
As previously explained, a failure to submit a SIP revision on
July 1, 1982, will not trigger the construction moratorium.
However, the moratorium will apply if a State fails to have in
effect by July 1, 1982, "enforceable measures" needed to assure
attainment by 1987. If a State submits a 1982 plan, the deter-
mination whether the State has satisfied the "enforceable meas-
ures" requirement would be made in the course of approving
or disapproving the plan. If a State does not submit a plan,
EPA still would have to make a finding that the "enforceable
measures" requirement was not satisfied, in order to activate
the construction moratoriums.5 Moreover, because such a find-
5 EPA has recently interpreted § 110(a)(2)(I) to preclude the application of the
construction moratorium in any area with an approved or conditionally ap-
Continued
19
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ing amounts to a disapproval of the SIP, and activates the
construction moratorium, it would have to be made in accord-
ance with the procedure governing informal rulemakings, like
all other SIP actions.6 Generally, these procedures require
public notice and an opportunity to submit comments. It might
be possible to make "class" findings for all extension States
that failed to submit 1982 SIPs and dispense with notice and
comment on the basis that it would be "impracticable" or "un-
necessary," since it is reasonably clear that 1979 SIPs for ex-
tension areas would not satisfy the "enforceable measures" re-
quirement. See 5 U.S.C. 553(b). However, the Agency would
not be obligated to conduct such an abbreviated rulemaking,
and could decide to follow normal rulemaking procedures.
The Agency could choose to use the notice of deficiency
mechanism to make these determinations. Sections 110(a)(2)(H)
and 110(c) provide for the issuance of a Notice of Deficiency
where EPA finds that an approved SIP has become "substan-
tially inadequate" to provide for attainment of one of the na-
tional ambient air quality standards. Under § 110(c)(l)(C), the
notice must provide at least 60 days for the State to respond
before EPA takes further action. If a State failed to cure the
deficiency or to convince EPA that its finding of deficiency
was in error, EPA would disapprove the plan.
2. Funding Limitations
EPA and DOT have developed detailed procedures for the im-
plementation of §176(a). See 45 Fed. Reg. 24692 (Apr. 10,
1980). EPA has adopted the same procedures for §316(b).'5w
proved Part D SIP, unless EPA determines, after first providing notice and an
opportunity to comment, that the SIP no longer satisfies Part D. EPA an-
nounced this interpretation in an Interpretive Rule informing the States that
the moratorium will not apply in areas which were required to revise their
new source review (NSR) regulations to conform with EPA's August 7, 1980
NSR rule, until EPA has reviewed each SIP and determined that previously ap-
proved NSR rules are not adequate to meet the August 1980 regulations (46
Fed. Reg. 62651, Dec. 28, 1981).
6 Actions involving SIPs have been held to be informal rulemakings requiring
notice and comment. See Buckeye Power Co. v. EPA, 481 F.2d 162 (6th Cir. 1973).
See also U.S. Steel Corp. v. EPA, 598 F.2d 915 (5th Cir. 1979), Sharon Steel Corp. v.
EPA, 597 F.2d 377 (3rd Cir. 1979), State of New Jersey v. EPA, 626 F.2d 1038
(D.C. Cir. 1980), WOGA v. EPA, 9th Cir. No. 78-1941 (1980), and U.S. Steel
Corp. v. EPA, 8th Cir. No. 78-1302 (1981), remanding Agency rules promulgated
without prior notice and opportunity to comment.
20
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45 Fed. Reg. 53382 (Aug. 11, 1980). Briefly, these procedures
require an opportunity for negotiations between EPA, DOT,
and State and local agencies, a 30-day comment period, and
the publication of a final determination in the Federal Register
before funds can be withheld.
Question 3. What is the statutory or regulatory authority
under which sanctions are imposed?
Response
1. Construction Moratorium
Section 110(a)(2)(I) requires all SIPs to contain a construction
moratorium. EPA published an interpretive rule that inserted
the ban into all SIPs on July 2, 1979 (44 Fed. Reg. 38473).
This SIP provision is now codified at 40 C.F.R. 52.24 (1981).
The interpretive rule of December 28, 1981 (46 Fed. Reg.
62651) suggests that the ban would apply only after EPA
makes a determination that a SIP does not meet a Part D re-
quirement.
2. Limitations on Clean Air Act and Transportation Grants
Section 176(a) requires EPA and DOT to withhold these funds.
EPA and DOT published a joint "Final Policy and Procedures
for Section 176(a)" on April 10, 1980 (45 Fed. Reg. 24692).
3. Limitations on Sewage Treatment Grants
Section 316(b) gives EPA discretion to withhold these grants.
EPA published a final policy on August 11, 1980 (45 Fed. Reg.
53382). In that notice, EPA announced that it would follow the
rulemaking procedures it had adopted for funding cutoffs under
§ 176(a).
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July 12, 1983
MEMORANDUM
SUBJECT: The "Construction Moratorium" Under
the Clean Air Act
FROM: A. James Barnes
Acting General Counsel
TO: William D. Ruckelshaus
Administrator
Facts
Section 110(a)(2)(I) of the Clean Air Act states that after June
30, 1979:
no major stationary source shall be constructed or
modified in any nonattainment area ... if the
emissions from such facility will cause or contrib-
ute to concentrations of any pollutant for which a
national ambient air quality standard is exceeded
in such area, unless, as of the time of application
for a permit for such construction or modification,
[the applicable implementation] plan meets the re-
quirements of Part D (relating to nonattainment
areas).
One of the "requirements of Part D" that plans must meet
to avoid this "construction moratorium" is to "provide for at-
tainment of each . . . national air ambient quality standard
... as expeditiously as practicable, but, in the case of national
primary ambient air quality standards, not later than December
31, 1982." § 172(a)(l).
Congress inserted the June 30, 1979, trigger date into the law
in parallel with a requirement that States update their imple-
mentation plans for nonattainment areas no later than January
1, 1979. See § 129(c) of Pub.L. 95-95. By updating their State
Implementation Plans (SIPs) in accordance with this schedule,
States could avoid the construction moratorium.
Question
Must the Environmental Protection Agency (EPA) impose the
construction moratorium in areas that have fully carried out1
1 Section 173(4) of the Clean Air Act imposes a second construction moratori-
um, separate from the one in § 110(a)(2)(I), on any State that has not "carried
Continued
22
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implementation plans that EPA approved as meeting Part D re-
quirements, but that nevertheless did not meet the standards
by the statutory date of December 31, 1982?
Answer
No. While automatic imposition rests on a tenable reading of
the statute, the statutory language, legislative history, and pur-
poses do not compel it. You are therefore free to decide not to
impose the construction moratorium in such cases.
Discussion
I. "Provide for"
The argument that EPA has no discretion not to impose the
construction moratorium turns on the words "provide for" in
§ 172(a)(l). Proponents of an automatic construction moratorium
argue that if a plan does not actually result in attainment, it
cannot be said to "provide for" attainment.
That term is used in the statute, however, without any ref-
erence to actual nonattainment. Section 172(a)(l), more fully
quoted, reads:
The provisions of an applicable implementation
plan for a State . . . which are required by Sec-
tion 110(a)(2)(I) as precondition for the construc-
tion or modification of any major stationary
source in any [nonattainment] area on or after
July 1, 1979 shall provide for [attainment by the
end of 1982].
The focus of this language is on how States would have to
update their SIPs between 1977 and 1979 to avoid the con-
struction moratorium, not on what happens after that date. It
is certainly possible that a State that "provided for" attainment
to general satisfaction in 1979 might nevertheless fail to
achieve the standards by 1982. The text of the statute simply
does not focus on what happens in that event.
The legislative history, however, indicates Congress was
aware of the possible difference between a plan that "provided
for" attainment when it was approved and one that actually
attained the standards.
out" an approved implementation plan. If a State did not attain the standards
on schedule because it had not carried out an approved plan, this provision
would be applicable.
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The 1977 House bill, H.R. 6161, consistently required plans
for nonattainment areas to "assure" attainment of the national
standards by 1982, or, if an extension were granted, by 1987.
§127(c)(2), H.R. 6161, 4 Legislative History of the Clean Air
Act at 2853-54 (1977). By contrast, the Senate bill contained a
patchwork of provisions that variously required plans to "dem-
onstrate" attainment by 1982 (§ 110(h)(2)(E)), "assure" attain-
ment by 1987 (§ 110(h)(2)(F)(i) and 110(h)(3)), and "provide
for" attainment by either 1982 or 1987 (§§ 110(a)(2)(F)(iv) and
113(g)(3)(C), S. 252), 3 Legislative History of the Clean Air Act
at 1155-56 and 1164 (1977).
Confronted with this maze of alternatives, the conference
committee drafted requirements for nonattainment areas that
required plans to "provide for" attainment in all but one in-
stance.2
No explanation of the final choice of "provide for" appears
in the formal legislative history. However, Congress must have
perceived some difference in meaning between the two phrases,
and the only one the dictionary suggests is that "assure" de-
notes a greater certainty of achievement in the plan it describes
than does "provide for." According to Webster's New Colle-
giate Dictionary, "assure" means "to make sure or certain"
while "provide" means only "to take precautionary measures."
The transcript of a committee markup shows that the spon-
sor of the "provide for" language in the Senate bill selected
the phrase for precisely this reason. Offering an amendment
that required plans to "provide for" attainment as a substitute
for an earlier, unsuccessful amendment that would have re-
quired plans to "assure" attainment, Senator Domenici said:
... I am substituting for the words "assures,"
"provides for attainment by the specified date."
That may not seem like a big change, but the
phrase "provide for" is used in the existing law
where the word "assure" is not. It does not re-
quire a State to guarantee a program that will
result in attainment. A guarantee certainly is diffi-
cult to make, given all the knowledge and lack of
2 The conference bill—and the current Act—require plans for extension areas to
contain "enforceable measures to assure attainment no later than 1987." § 172(c).
(Emphasis added.)
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knowledge that we have about the oxidant forma-
tion and other things. But the language requires a
state, with EPA approval, to set a strategy in
motion that it currently believes will meet the
standards. That is the first change.
Transcript of Senate Clean Air Act Mark-Up, May 4, 1977, pp.
13-14. See also pp. 23-24.
Both the conference committee's decision to use "provide
for" and Senator Domenici's explanation of the reasons for his
switch show that Congress intended "provide for" to set forth
a test for use at the time EPA evaluated SIPs for future attain-
ment, not one for use when the deadline arrived. If this is so,
a plan may "provide for" attainment, and thus avoid the con-
struction moratorium, even if the standards are not achieved as
projected.
II. The Attainment Deadlines
The second major argument for imposition of sanctions is that
to do otherwise would rob the dates specified for attainment—
1982 and, in extension areas, 1987—of substance.
However, EPA did not immediately impose a construction
ban when the deadlines for attainment under the 1970 Clean
Air Act expired between 1975 and 1977, even though the 1970
version of the Clean Air Act spoke far more strongly of the
need to attain standards by a date certain than it did after the
1977 amendments.3 Instead, EPA called for SIP revisions and
3 In 1970 Congress regarded timely attainment of the health-related standards
as a matter of paramount importance. See, e.g., Statements of Senators Muskie,
Cooper, and Prouty, 1 Legislative History of the Clean Air Act at 227,
258-259, and 379-380 (1974). The Senate Report flatly stated that existing
sources would have to shut down if there were no other way to meet the
standards. S. Rep. 1196, 91st Cong., 2d Sess. 3 (1970). Relying on these strong
indications that Congress wanted attainment at any cost, EPA successfully
promulgated gasoline rationing requirements for several major metropolitan
areas in California. City of Santa Rosa v. EPA, 534 F.2d 150 (9th Cir. 1976).
When the attainment dates actually passed, however, EPA moderated its
course. Rather than forcing sources to close down, it called for plan revisions
and limited new source growth as described above in the text. Congress en-
dorsed this softer approach to the deadlines in the 1977 amendments. The
amendments essentially adopted EPA's administrative solution to the problem
of missed deadlines. Although Congress retained the deadline concept, it spoke
of the need to balance health and economic concerns, and made it clear that
the deadlines "would not require adoption of 'draconian' control measures."
Statement of Senator Stafford, 3 Legislative History of the Clean Air Act at
770-771 (1977).
25
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imposed a limited measure—the Offset Ruling—to protect air
quality before the plan revisions were approved. A construction
ban would have applied under that ruling only if a State failed
to revise its SIP acceptably within 18 months of EPA's call to
revise it. See 41 Fed. Reg. 55526, 55529 (Dec. 21, 1976). There
is no indication that EPA intended to apply such a ban under
the Offset Ruling to cases of simple nonattainment. Congress
endorsed this course of action by adopting a very similar ap-
proach in the 1977 amendments.
Nothing in this history, or in the language of the statute,
suggests any intention on Congress' part that EPA should
change the basic course mapped out in the mid-1970s if it had
to deal with a second episode of delayed attainment.
III. The Purpose of the Statute
Two purposes have been suggested for the construction mora-
torium. EPA originally interpreted it as serving a single goal—
preventing new sources from aggravating pollution problems
before a revised plan takes effect aimed at timely attainment
of the standards. See EPA's interpretive ruling of July 2, 1979
(44 Fed. Reg. 38471, 39472). Others have concluded that the
moratorium was also intended to serve as an incentive for the
submittal of plan revisions meeting the Part D requirements.
The court that has most thoroughly considered the issue con-
cluded that the moratorium is both a limit on increased pollu-
tion from new sources and an incentive for State planning ef-
forts. Connecticut Fund for the Environment v. EPA, 672 F.2d. 998,
1008 (2d Cir. 1982).
The legislative history does not address the purposes of the
ban directly, but it does suggest that Congress saw those pur-
poses more as an encouragement to planning than as air qual-
ity maintenance. The Senate Report emphasized the need for a
mechanism to assure that, before facilities added pollution, a
State had demonstrated that the increased pollution could be
accommodated within a plan providing for attainment of the
standards. S. Rep. 127, 95th Cong., 1st Sess. 55 (1977).4 The
conference report points toward the planning incentive goal
more strongly, emphasizing that a revised plan is a "condition
4 The present construction moratorium originated in the Senate bill. The bill as
reported by the committee prohibited source construction or modification after
July 1, 1979, unless a State had an approved or promulgated SIP revision.
26
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for new source growth/' H.R. Rep. 564, 95th Cong., 1st Sess.
121, 157 (1977).
Imposing the construction moratorium on a State that has an
approved SIP but missed the 1982 deadline would damage, not
further, attainment of this planning goal. It would hardly en-
courage planning to penalize States that had already done ev-
erything EPA had asked them to do. Indeed, once the morato-
rium was on, there would be little incentive for a State to
submit a revised SIP to cure the deficiencies in its plan, be-
cause nothing a State could do by way of planning would
enable EPA to lift the moratorium.5
Nor is there any reason to believe that the moratorium ben-
efits air quality significantly. Under present law, each State
must have in its implementation plan provisions that forbid the
construction of a new source unless its new emissions are bal-
anced by more than offsetting emissions reductions. According-
ly, new sources do not damage air quality under present law,
but rather improve it.
Because automatic imposition of the moratorium would clear-
ly work against the major goal for which the moratorium was
inserted in the statute, and would—at a minimum—not clearly
serve the second goal, we conclude on this count too that
automatic imposition of the moratorium is not required.
5 If EPA imposed the moratorium automatically for failure to attain the stand-
ards, we do not think EPA could take it off before the standards were actually
achieved. The theory on which the moratorium was imposed would have to be
that "provide for" means "attain," and on that logic the moratorium would
have to stay on until actual attainment.
27
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September 20, 1983
MEMORANDUM
SUBJECT: Promulgation of Active Mill Tailings Standards
FROM: A. James Barnes
Acting General Counsel
TO: Glen A. Sjoblom, Director
Office of Radiation Programs
This memorandum concludes that "promulgation" of the active
mill tailings standards within the meaning of § 275 of the
Atomic Energy Act occurs upon signing of the final rule rather
than upon Federal Register publication.
Question
Section 18 of Pub.L. 97-^115, enacted in 1983, amended the
Uranium Mill Tailings Radiation Control Act to require the
Administrator of the Environmental Protection Agency (EPA) to
"promulgate" final active mill tailings rules "within 11 months"
of October 31, 1982. You have asked whether Congress intend-
ed that "promulgation" refer to signature by the Administrator
or to Federal Register Publication.
Answer
"Promulgation" in this case refers to signature by the EPA Ad-
ministrator.
Discussion
The term "promulgate" is not directly defined either in the
Uranium Mill Tailings Radiation Control Act (UMTRCA), the
Administrative Procedure Act, or the Federal Register Act. As a
matter of dictionary meaning, "promulgate" means both "to
make known or public" and "to put into action or force."
Webster's New Collegiate Dictionary, 1979.
While the legislative history of UMTRCA is silent as to
which meaning Congress intended, the conclusion that promul-
gation refers to the act of signing rather than publication is
supported by two contextual considerations. First, the EPA Ad-
ministrator, to whom Congress' command is addressed, has no
authority or power to direct the operations of the Federal Reg-
ister. Congress cannot have intended to direct the EPA Admin-
28
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istrator to do what lies outside his power, i.e., assure publica-
tion by a date certain. Second, the enactment was spurred by
Congress' "displeasure" in 1982 at EPA's, not the Federal Reg-
ister's, failure to act, 1982 U.S. Code Cong. & Admin. News at
3592. Congress intended to remedy EPA's failure to finalize
regulations, not the Federal Register's failure to publish them.
This conclusion is supported by the Federal Register Act, 44
U.S.C. 1507, which, codifying existing law, 1968 U.S. Code
Cong. & Admin. News at 4438, provides that:
The publication in the Federal Register of a docu-
ment creates a rebuttable presumption . . . that it
was duly issued, prescribed, or promulgated.
See, e.g., Shafer v. U.S., 229 F.2d 124 (3rd Cir., 1956) cert, denied.
351 U.S. 931 (1956); Reed v. Frank, 297 F.2d 17 (4th Cir. 1961).
If Federal Register publication gives rise to a rebuttable pre-
sumption that the document "was duly . . . promulgated," it
follows that the act of promulgation is distinct from, and pre-
cedes, the act of publication. This reading is strengthened by
the provision of the same Act that those with actual notice of
an unpublished rule are bound by the rule, a result that would
not be possible if publication of the rule itself constituted pro-
mulgation. See Kessler v. F.C.C., 326 F.2d 673 (D.C. Cir. 1963).
The Administrative Procedure Act, 5 U.S.C. 552(a), draws a
similar distinction between "adoption" and "publication" and
similarly deems that persons with actual notice of unpublished
rules are bound by such rules, Rodriguez v. Swank, 318 F. Supp.
289, aff'd, 403 U.S. 901 (1971); Whelan v. Brinegar, 538 F.2d 924
(2nd Cir. 1976); Timber Access Industries Co. Inc. v. U.S., 553 F.2d
1250 (Ct. Cl. 1977).
It has been EPA practice both before and since the enact-
ment of the UMTRCA deadline to consider signature of a rule
as compliance with court orders requiring promulgation by a
date certain. See, for example, Citizens for a Better Environment v.
Gorsuch, Civ. 82-1035 (D.C. Cir.) (order requiring promulgation
of Subtitle C RCRA regulations by date certain); Sierra Club v.
Gorsuch, Civ. C-81-2436 (N.D. Cal.) (order to propose radionu-
clide standards within 180 days); State of New York v. Gorsuch,
Civ. 81-6678 S.D.N.Y.) (order to publish arsenic standard
within 180 days). Congress gave no indication in UMTRCA
that it intended to modify agency practice for complying with
deadlines similar in form and identical in purpose to that
which it established in UMTRCA.
29
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If Congress intended the deadline to be October 1, 1983, a
final consideration would be the fact that the Federal Register
is not published on Saturdays. On balance, however, EPA
should assume that the deadline is the end of the preceding
month, i.e., September 30, 1983.l
1 The statutory requirement is that EPA promulgate the final standard "within
eleven months" from October 31, 1982. This language suggests that Congress
intended EPA to act by the end of September 1983.
The statute and legislative history also refer to promulgation "by" October 1,
1983, 1982 U.S. Code Cong. & Admin. News at 3015. While this could mean
that promulgation on October 1, 1983, is permissible, such date is not "within"
the eleventh month and probably expresses the first day of EPA's lapsed au-
thority.
30
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SOLID WASTE
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July 27, 1981
MEMORANDUM
SUBJECT: Joint and Several Liability Under the Comprehen-
sive Environmental Response, Compensation, and
Liability Act of 1980
FROM: Frank Shepherd
Associate Administrator for
Legal Counsel and Enforcement
TO: Anne M. Gorsuch
Administrator
ISSUE: Whether the Agency is precluded from seeking
joint and several liability under § 107 of the Com-
prehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA).
CONCLUSION: No. Although Congress deleted the terms
"strict, joint and several" liability from § 107
of CERCLA prior to passage, the legislative
history strongly indicates that Congress did
not intend to preclude courts from imposing
joint and several liability in all cases. Instead,
Congress intended that standards of liability
be determined on a case-by-case basis.
Discussion
Section 107 identifies four classes of individuals and entities
who are "liable for" specified costs associated with the release
or threatened release of hazardous substances. These costs in-
clude those for response actions as well as those for damage to
natural resources.
Although earlier versions of CERCLA1 contained language
which imposed "strict, joint and several" liability upon respon-
sible persons, that language was dropped from the final com-
promise bill and replaced with the following definition of li-
ability:
'liable' or 'liability' under this title shall be con-
strued to be the standard of liability which ob-
1 Section 3071(a)(l) of H.R. 7020; § 4(a) of S. 1480.
33
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tains under section 311 of the Federal Water Pol-
lution Control Act.2
The incorporation by reference of the standard of liability
which obtains under § 311 does not clearly resolve the issue of
whether liability under § 107 is to be imposed on a joint and
several basis. Section 311 does not specifically address that
issue and there are no reported cases on point.3
At issue is whether the deletion of the terms "joint and sev-
eral" liability from § 107 precludes a court from imposing liabil-
ity on a joint and several basis in all cases.
There is a significant amount of legislative history on this
issue from the House of Representatives and Senate floor de-
bates on the compromise bill. The floor leaders of the compro-
mise bill 4 explained in detail during the floor debates that the
deletion of the terms "strict, joint and several" liability was a
compromise which replaced a statutorily imposed system of joint
and several liability with one that imposes joint and several li-
ability based upon prevailing standards of the common law.5
2 § 101(32).
3 It is important to note, however, that during the floor debate on the compro-
mise bill, Congressman Florio discussed the issue of joint and several liability
under §311:
"I might point out that Section 311 has been interpreted by the
Coast Guard, the Government body responsible for administering
the section 311(k) revolving fund, as imposing joint and several
liability under appropriate circumstances. I would like to intro-
duce a letter from the Coast Guard on this subject. This estab-
lished policy seems particularly applicable in cases of hazardous
wastes sites, where several persons have often contributed to an
indivisible harm."
126 Cong. Rec. H.11787 (daily ed. Dec. 3, 1980).
The letter introduced into the Record was dated September 29, 1978, from
G.H. Patrick Bursley, Chief Counsel, U.S. Coast Guard, to Mr. Phillip Bems,
Attorney in Charge, West Coast Office, Department of Justice. The letter em-
phasized that while §311 generally envisioned a scheme of several liability,
that is not the sole remedy, hi appropriate cases, the Government could seek
joint liability. 126 Cong. Rec. H.11788-89 (daily ed. Dec. 3, 1980).
4 Senators Randolph and Stafford (Chairman and Ranking Minority Member of
Committee on Environment and Public Works, respectively) and Congressman
Florio (Chairman of the House Subcommittee on Transportation and Com-
merce).
5 Under existing general common law principles, damages are apportioned when
possible among defendants according to their respective contribution to the
Continued
34
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Under the earlier versions of CERCLA, joint and several liabil-
ity was rigidly imposed by the terms of the statute.6 The
earlier versions also contained rigid provisions that allowed a
defendant to escape the statutorily imposed joint and several
liability only if he could demonstrate that he had no substan-
tial involvement in causing the injury.7 The compromise was
explained by Senator Randolph:
The liability regime in this substitute contains
some changes in language from that in the bill re-
ported by the Committee on Environment and
Public Works. The changes were made in recognition of
the difficulty in prescribing in statutory terms liability stand-
ards which will be applicable in individual cases. The
changes do not reflect a rejection of the standards in the ear-
lier bill.
It is intended that issues of liability not resolved by this act,
if any, shall be governed by traditional and evolving princi-
ples of common law. An example is joint and several liabil-
ity. (Emphasis added.)
Senator Randolph added:
. . . we have deleted any reference to joint and
several liability, relying on common law principles
to determine when parties should be severally
liable.
126 Cong. Rec. S.14964 (Nov. 24, 1980).8
Congressman Florio, a floor leader on the compromise bill in
the House of Representatives, echoed Senator Randolph's re-
marks in explaining the compromise:
damage suffered by plaintiff. Joint and several liability is imposed when there
is no basis for determining, with a reasonable degree of accuracy, the respec-
tive contributions to the damage by each defendant. For example, when the
actions of the defendants cause a "single indivisible result/' joint and several
liability is imposed. Those cases are determined on a case-by-case basis.
(Prosser, Law of Torts, (4th ed. 1971), Sec. 52, (p. 313-5)).
6 S. 1480, § 4(a).
7 S. 1480, §4(f).
8 Senator Stafford explained the change from one of the compromise bills as
"eliminat(ing) the term joint and several liability." (Emphasis added.) 126 Cong.
Rec. S.14967 (daily ed. Nov. 24, 1980).
35
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The liability provisions of this bill do not refer to
the terms strict, joint and several liability, terms
that were contained in the version of H.R. 7020
passed earlier by this body. ... I have concluded
that despite the absence of these specific terms,
the strict liability standard already approved by
this body is preserved. Issues of joint and several liabil-
ity not resolved by (incorporating by reference the
standard of liability imposed by section 311 of the
Clean Water Act) shall be governed by traditional and
evolving principles of common law. The terms joint and sev-
eral have been deleted with the intent that the liability of
joint tortfeasors be determined under common or previous stat-
utory law. (Emphasis added.)
126 Cong. Rec. H.11787 (daily ed. Dec. 3, 1980).
Congressman Florio also introduced into the Record a letter
from the Justice Department regarding the effect that the ab-
sence of the terms "strict, joint and several" liability in the
compromise bill would have on the ability of courts to impose
strict, joint and several liability under § 107 in appropriate
cases.9 That letter included a discussion of its effect upon joint
and several liability:
Another aspect of the liability standard concerns
the applicable liability where two or more persons
are responsible for a release or a threatened re-
lease. As you are aware, the reference to joint and
several liability contained in the original liability
provisions of S. 1480 was deleted. It is clear,
however, that this deletion does not in any way
preclude courts from imposing joint and several li-
ability where appropriate.
126 Cong. Rec. H.11788 (daily ed. Dec. 3, 1980).
An additional reason cited in the Department of Justice letter
for concluding that the liability established by § 107 could be
imposed on a joint and several basis was the presence of
§ 107(e)(2) in the compromise bill. The Justice Department in-
terpreted that section as confirming a defendant's right of con-
tribution is against other defendants who are also responsible
9 Letter dated December 1, 1980, from Alan A. Parker, Assistant Attorney Gen-
eral, Office of Legislative Affairs to Hon. James J. Florio. 126 Cong. Rec.
H.11788 (daily ed. Dec. 3, 1980).
36
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for a release.10 Based upon its understanding that "a right of
contribution is only of value to a defendant which has been
held jointly and severally liable," the Justice Department con-
cluded that the recognition of that right in the compromise bill
reflects Congress' intent that joint and several liability could be
imposed under CERCLA.
On the other hand, Senator Helms, an opponent of
CERCLA, expressed his view that the compromise bill precludes
joint and several liability. He said:
It is very clear from the language of the Stafford-
Randolph substitute itself, from the legislative his-
tory, and from §311 of the [Clean Water Act]
that now the Stafford-Randolph bill does not in
and of itself create joint and several liability. The
Government can sue a defendant under the bill
only for those costs and damages that it can
prove were caused by the defendant's conduct.
126 Cong. Rec. S.15004. (daily ed. Nov. 24, 1980).
In addition. Senator Helms submitted for the Record "a list of
changes [in the compromise bill] as presented by the Environ-
ment and Public Works Committee" that included the state-
ment that the bill "[eliminated joint and several liability." It is
unclear from the Congressional Record whether the exhibit
Senator Helms referred to is the complete text of the Commit-
tee's document or simply a summary. While this exhibit might
argue in favor of a conclusion that Congress intended to pre-
clude the imposition of joint and several liability under § 107,
the explanation of the compromise bill by the floor leaders
disputes that.
The best reading of the legislative history, therefore, indi-
cates that the compromise replaced provisions that rigidly im-
posed joint and several liability by statute with a standard that
allows the standard of liability to be determined on a case-by-
case basis. This conclusion is supported by two factors.
First, before incorporating by reference the liability imposed
by § 311 of the Clean Water Act as the liability standard in
10 Section 107(e)(2) provides:
Nothing in this title, including the provisions of paragraph (1) of
this section, shall bar a cause of action that an owner or opera-
tor or any other person subject to liability under this section, or
a guarantor, has or would have, by reason of subrogation or
otherwise against any person.
37
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§ 107, Congress had been informed by the Agency responsible
for administering the liability provisions of § 311 that it be-
lieved that it could seek joint and several liability in appropri-
ate cases.11 Second, the floor managers specifically stated that
the appropriate standard be determined on a case-by-case basis
according to the principles of common law.
This conclusion is reinforced by an examination of the prac-
tical consequences of deciding that the Agency is precluded in
all cases from seeking joint and several liability under § 107.
The Justice Department's memorandum on this issue12 cites
numerous accidents involving single, indivisible damage to nat-
ural resources where the defendant's liability could only be im-
posed on a joint and several basis. Without joint and several
liability no damages could have been assessed. For example, in
Landers v. Fast Texas Salt Water Disposal Co., 248 S.W. 2nd 731
(Tex. S.Ct. 1952) two separate pipes owned by two different
companies carrying salt water broke on the same day and
flowed into plaintiff's lake killing fish and destroying the lake.
The court explained its rationale for imposing joint and several
liability:
at 733 Wigmore has suggested that the rule of
joint and several liability in the field of torts had
its inception in the need of the law, bent on jus-
tice, to relieve a plaintiff of the intolerable burden
of proving what share each of two or more
wrongdoers contributed to the plaintiff's injuries,
and that the burden is just as tolerable and the
need for relief therefrom is just as great when the
independent tortious acts of multiple defendants
contribute to a plaintiff's indivisible injuries as
when the acts are done in concert and of common
design. (Citation omitted.)
at 734 (referring to an earlier Texas case holding
no joint and several liability)—
The rule of the Robicheaux case, strictly followed,
has made it impossible for a plaintiff, though
11 See fn. 3 infra.
12 Memorandum dated June 23, 1980, from Anthony Z. Roisman, Special Liti-
gation Counsel, to Carol F. Dinkens, Assistant Attorney General.
38
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gravely injured, to secure relief in the nature of
damages through a joint and several judgment by
joining in one suit as defendants all wrongdoers
whose independent tortious acts have joined in
producing the injury to the plaintiff, which, al-
though theoretically divisible, as a practical matter
and realistically considered is in fact but a single
indivisible injury. As interpreted by the Courts of
Civil Appeals the rule also denies to a plaintiff
the right to proceed to judgment and satisfaction
against the wrongdoers separately because in such
a suit he cannot discharge the burden of proving
with sufficient certainty, under pertinent rules of
damages, the portion of the injury attributable to
each defendant. (Citations omitted.)
# * * * *
In other words, our courts seem to have embraced
the philosophy, inherent in this class of decisions,
that it is better that the injured party lose all of
his damages than that any of several wrongdoers
should pay more of the damages than they indi-
vidually and separately caused. If such has been
the law, from the standpoint of justice it should
not have been; if it is the law now, it will not be
hereafter. The case of Sun Oil Co. v. Robicheaux is
overruled. Where the tortious acts of two or more
wrongdoers join to produce an indivisible injury,
that is, an injury which from its nature cannot be
apportioned with reasonable certainty to the indi-
vidual wrongdoers, all of the wrongdoers will be
held jointly and severally liable for the entire
damages and the injured party may proceed to
judgment against any one separately or against all
in one suit. If fewer than the whole number of
wrongdoers are joined as defendants to plaintiff's
suit, those joined may by proper cross action
under the governing rules bring in those omitted.
In its memorandum, the Justice Department cites the follow-
ing examples of ongoing suits to abate imminent hazards to
public health and the environment caused by hazardous waste
sites which demonstrate that situations will arise under § 107
39
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in which the damage caused by several defendants will be a
single, indivisible injury: a leaking lagoon that was filled with
wastes from several generators; a single fire caused and fed by
the wastes of numerous generators; ground and ground water
contamination caused by spills and leaks from the barrels and
leaks of many generators; and, the haphazard storage of wastes
from numerous generators that created the threat of fire, explo-
sion, and leakage of wastes. In cases such as those cited above,
the only reasonable course of action available to the Agency in
seeking to clean up a site may be to seek joint and several li-
ability. Moreover, having that option available may also avoid
inequitable results in the administration of Superfund. Without
that option, joint defendants would escape liability for releases
of hazardous substances when a single defendant would not.
In conclusion, the best reading of the legislative history indi-
cates that the deletion of the terms "joint and several" liability
from the compromise bill was not intended to preclude courts
from imposing joint and several liability in all cases. Instead, it
replaced a rigid, statutorily imposed scheme of joint and sever-
al liability with one which allows courts to impose it when re-
quired by traditional principles of common law.
40
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September 1, 1982
MEMORANDUM
SUBJECT: Applicability of Section 102(2)(C) of the National
Environmental Policy Act of 1969 to Response Ac-
tions Under Section 104 of the Comprehensive En-
vironmental Response, Compensation, and Liability
Act of 1980
FROM: Robert M. Perry
Associate Administrator and
General Counsel
TO: Rita M. Lavelle
Assistant Administrator for Solid Waste
and Emergency Response
This responds to your inquiry concerning the applicability of
§102(2)(C) of the National Environmental Policy Act of 1969
(NEPA), Pub.L. 91-190, as amended, 42 U.S.C. §4332(2)(C), to
removal and remedial actions supported in whole or in part
with Hazardous Response Trust Fund monies under § 104 of
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), Pub.L. 96-510, 42 U.S.C.
§ 9604. More specifically, you have asked whether removal and
remedial actions are subject to the requirement for an environ-
mental impact statement (EIS) imposed on Federal agencies by
§ 102(2)(C). For the reasons stated below, it is my opinion: (1)
that the need for expedition in carrying out removal actions
exempts such actions from the EIS requirement; and (2) that an
EIS is unnecessary for remedial actions, provided the Agency
complies with the standards for a functional equivalent excep-
tion to the EIS requirement. To aid your understanding of the
EIS requirement, I have included in my response a background
discussion of § 102(2)(C) and the implementing regulations of
the Council on Environmental Quality (CEQ).
Background
NEPA establishes a national policy requiring every Federal
agency to incorporate consideration of environmental factors
41
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into its decisionmaking process.1 To implement this policy,
§102(2)(C) of NEPA directs Federal agencies "to the fullest
extent possible" to prepare a "detailed" EIS for all "major Fed-
eral actions significantly affecting the quality of the human en-
vironment." As specified in § 102(2)(C)(i)-(v), an EIS must ad-
dress the following areas:
(i) The environmental impact of the proposed
action,
(ii) Any adverse environmental effects which
cannot be avoided should the proposal be imple-
mented,
(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 pro-
posed action should it be implemented.
Section 102(2)(C) requires the responsible Federal official,
prior to preparing an EIS, to consult with and obtain comments
from other Federal agencies having "jurisdiction by law or spe-
cial expertise with respect to any environmental impact in-
volved." In addition, the responsible official must secure com-
ments on the EIS from Federal, State, and local agencies
"which are authorized to develop and enforce environmental
standards." These comments, together with the EIS itself, must
"accompany the [proposed action] through the existing agency
review processes."
The CEQ has promulgated regulations implementing NEPA at
40 C.F.R. Part 1500.2 Under these regulations, a Federal agency
1 Section 101(a) of NEPA, 42 U.S.C. § 4331(a), states that "it is the continuing
policy of the Federal Government ... to use all practicable means ... to
create and maintain conditions under which man and nature can exist in pro-
ductive harmony. . . ." Section 101(b) of NEPA, 42 U.S.C. § 4331(b), declares
that "it is the continuing responsibility of the Federal Government to use all
practicable means, consistent with other essential considerations of national
policy, to improve . . . Federal plans . . . [and] programs" in order to achieve
six specific environmental goals.
2 Executive Order No. 11991 (May 24, 1977) required CEQ to issue NEPA reg-
ulations binding on other Federal agencies.
42
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must normally prepare an environmental assessment to deter-
mine whether a proposed action requires an EIS. 40 C.F.R.
§ 1501.4(c). If the environmental assessment indicates that the
project is not a major Federal action significantly affecting the
environment, the Agency must issue a finding of no significant
impact which briefly explains the reasons why an EIS is un-
necessary. 40 C.F.R. §§ 1501.4(e) and 1508.13.
If the Agency finds, based on the environmental assessment,
that the project is a major Federal action having a significant
impact on the environment, the agency must initiate the formal
EIS process by publishing a notice of intent to prepare an EIS
in the Federal Register and by consulting with affected Gov-
ernment agencies and Indian tribes and interested persons as to
the scope of the EIS. 40 C.F.R. §§1501.7 and 1508.22. Accord-
ing to published CEQ guidance, large projects should require
about 12 months for completion of the EIS process.3
Upon determining the scope of the EIS, the agency must
prepare a draft EIS. 40 C.F.R. § 1502.9(a). The draft EIS must
specify the purpose of and need for the project, describe the
affected environment, evaluate all reasonable alternatives, in-
cluding the no-action alternative, and discuss the short- and
long-term environmental consequences of the project and alter-
natives. 40 C.F.R. §§1502.13.16. The draft EIS must be circu-
lated for comment for at least 45 days among relevant Federal
agencies, State and local environmental agencies, affected Indian
tribes, and the public. 40 C.F.R. §§ 1503.1 and 1506.10(c).
After considering the comments received on the draft EIS,
the Agency must issue a final EIS. 40 C.F.R. § 1502.9(b). The
Agency must file the final EIS with EPA, transmit it to agen-
cies that commented on the draft EIS, and make it available to
the public. 40 C.F.R. §§ 1502.19(d), 1506.6(f), and 1506.9. The
final EIS must respond to the comments submitted on the
draft EIS and discuss responsible opposing views that were in-
adequately addressed in the draft EIS. 40 C.F.R. §§ 1502.9(b),
1503.4. Generally, the Agency may not make a final decision
on the project until at least 30 days after publication by EPA
of a notice of the EIS in the Federal Register. 40 C.F.R.
3 See Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Reg-
ulations (46 Fed. Reg. 18037, Mar. 23, 1981).
43
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§ 1506.10(b)(2).4 The final decision must be documented in the
form of a public record of decision that articulates the basis
for the decision, the alternatives considered, and any necessary
mitigation measures. 40 C.F.R. § 1505.2.
I. Issue
Whether removal actions under § 104 of CERCLA are subject
to the EIS requirement of § 102(2)(C) of NEPA.
Answer
Removal actions are exempt from compliance with § 102(2)(C)
of NEPA due to the fundamental conflict in statutory purpose
between the EIS requirement and EPA's removal authority. This
conflict arises from the fact that it would be virtually impossi-
ble for EPA to follow the lengthy EIS process and at the same
time expeditiously undertake removal actions.
Discussion
Because NEPA does not repeal by implication other Federal
laws,5 the courts have recognized that a Federal agency is
exempt from complying with § 102(2)(C) of NEPA if compli-
ance would result in a "clear and unavoidable conflict" with
the purpose or procedure of the agency's organic statute. Flint
Ridge Development Company v. Scenic River Association of Oklahoma, 426
U.S. 776, 788 (1976). This exemption has been invoked to bar
the application of § 102(2)(C) where it would be impossible for
an agency to adhere to the formal EIS process and at the same
4 In accordance with 40 C.F.R. § 1506.10(d), the 30-day time period between
the notice of an EIS and the making of a final decision, as well as the 45-day
comment period for draft EISs (40 C.F.R. § 1506.10(c)), may be shortened upon
a showing by the Federal agency that there are compelling reasons of national
policy to reduce the prescribed periods.
5 United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 694
(1973).
44
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time comply with a deadline for decisionmaking 6 or a directive
for prompt action,7 mandated by the agency's organic statute.
In my opinion, removal actions under § 104 of CERCLA fall
within the exemption for statutory conflict because of the in-
compatability between EPA's removal authority and NEPA's
EIS requirement.
Briefly stated, removal actions involve the implementation of
short-term cleanup measures taken in response to the release or
threatened release of hazardous substances. See § 101(23) of
CERCLA (42 U.S.C. § 9601(23)). The National Contingency Plan
(NCP) divides removal actions into two categories—immediate
removals and planned removals. Immediate removals are appro-
priate where action within hours or days may be necessary to
prevent significant harm to human health or the environment
(NCP, § 300.65). Planned removals, on the other hand, are ap-
propriate where an expedited, although not necessarily immedi-
ate, response may be required (NCP, § 300.67). Both immediate
and planned removals may not continue beyond 6 months or
after the expenditure of $1 million, unless there is a finding
that an emergency exists pursuant to the requirements of
§ 104(c)(l) of CERCLA.
In view of the focus of immediate and planned removals on
emergency and near emergency situations, it is evident that
EPA's removal authority would be seriously undermined if the
6 See, e.g., Flint Ridge Development Co. v. Scenic Rivers Association of Oklahoma, supra,
(EIS requirement must yield to 30-day time limit prescribed by the Interstate
Land Sales Full Disclosure Act for approval or disapproval of property disclo-
sure statement); National Ass'n of Property Oumers v. U.S., 499 F. Supp. 1223,
126768 (D.Minn. 1980) (EIS unnecessary due to conflict between EIS require-
ment and effective date of motorized use restrictions under Boundary Waters
Canoe Area Wilderness Act), aff'a, 660 F.2d 1240 (8th Cir. 1981); Gulf Oil Corp.
v. Simon, 373 F. Supp. 1102, 1105 (D.D.C. 1974) (conflict between NEPA com-
pliance and 15-day timetable for issuance of regulations under Emergency Pe-
troleum Allocation Act precludes preparation of an EIS), aff'd, 502 F.2d 1154
(Em. Ct. App. 1974).
''See, e.g.. Dry Color Manufacturer's Ass'n v. Dep't of Labor, 486 F.2d 98, 107-08 (3rd
Cir. 1973) (EIS not a prerequisite for the promulgation of an emergency tem-
porary standard under Occupational Safety and Health Act); Atlanta Gas Light
Co. v. Federal Power Comm'n, 476 F.2d 142, 150 (5th Cir. 1973) (EIS unnecessary
prior to approval by Federal Power Commission of emergency interim curtail-
ment plan under the Natural Gas Act); State of Alaska v. Carter, 462 F. Supp.
1155, 1161 (D. Alaska 1978) (emergency withdrawal under Federal Land Policy
and Management Act did not require an EIS).
45
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Agency, as a pre-condition to initiating removal actions, were
required to complete the formal EIS process prescribed by the
CEQ regulations. Such a requirement would make it impossible
for the Agency to undertake removal actions with the requisite
degree of speed due to the time-consuming nature of the CEQ
procedures, and would raise the possibility of further delays
from litigation challenging the adequacy of EISs.8 Under these
circumstances, compliance with § 102(2)(C) of NEPA would
create an irreconcilable conflict in statutory authority so as to
relieve the agency of any duty to file an EIS.9
This conclusion is consistent with the legislative history of
CERCLA, which reflects a congressional awareness that the
expedited character of removal actions would justify noncom-
pliance with § 102(2)(C) of NEPA. Congress contemplated that
removal actions would proceed without a prolonged environ-
mental review and that they would be treated for purposes of
the EIS requirement in a manner similar to cleanup actions
under §311 of the Clean Water Act, 33 U.S.C. §1321, which
are explicitly exempted from the EIS process by § 511(c)(l) of
8 See Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm 'n, 647 F.2d
1345-86 (D.C. Cir. 1981) (Robinson, }., concurring) (EIS not required due to
conflict between the timetable for export licensing by the Nuclear Regulatory
Commission under the Nuclear Non-Proliferation Act and the time necessary to
prepare an EIS and defend against possible NEPA actions). See also Portland
Cement Ass'n v. Ruclcelshaus, 486 F.2d 375, 380-81 (D.C. Cir. 1973) (noting exist-
ence of a conflict between the EIS process and time constraints of the Clean
Air Act).
9 The conclusion that the exemption for statutory conflict applies to planned
removals is based on the assumption that planned removals will be undertaken
without extensive, prior investigative studies such as those authorized under
§ 104(b) of CERCLA. For any planned removals that are preceded by such
studies, it should be emphasized that the case for applying the exemption is
not as strong. To the degree that extensive, prior investigative studies provide
EPA with substantial lead time to evaluate alternative courses of action for
planned removals, a court might find that the time constraints necessary to
invoke the exemption are not present. In that event, the only argument poten-
tially available to EPA in support of an EIS exemption would be that the
studies constitute the "functional equivalent" of an EIS.
46
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the Act, 33 U.S.C. §1371(c)(l).10 As stated in the Senate
Report accompanying S. 1480:11
The intent of section 3(c)(l) is to authorize re-
moval with a minimum of delay in order to
assure that injury to the public health, welfare
and the environment are prevented or minimized
and mitigated. This provision is similar to section
311 of the Clean Water Act. Section 511(c) of the
Clean Water Act defines section 311 actions of
the Administrator as not constituting a major Fed-
eral action significantly affecting the quality of the
human environment within the meaning of the
National Environmental Policy Act of 1969. Re-
moval actions may be emergency actions within
the meaning of the National Environmental Policy
Act of 1969.
S. Rep. 848, 96th Cong., 2d Sess. 61 (1980).12
In sum, given the antithesis between the formal EIS process
and the congressionally recognized need for dispatch in the
conduct of removal actions, there is little question but that re-
moval actions are exempt from § 102(2)(C) of NEPA on the
ground of statutory conflict.13
10 Section 511(c)(l) of the Clean Water Act provides that the EIS requirement
does not apply to EPA actions under the Clean Water Act, except for the is-
suance of new source National Pollutant Discharge Elimination System
(NPDES) permits under §402 of the Act, 33 U.S.C. §1342, and the award of
wastewater treatment construction grants under §201 of the Act, 33 U.S.C.
§ 1281.
11 S. 1480 was the Senate version of the Superfund legislation. Although the
bill was revised considerably to produce CERCLA as enacted, it did contain a
provision for response actions similar to the response authority found in § 104
of CERCLA.
12 The statement in the Senate Report that removal actions may constitute
emergency actions within the meaning of NEPA is possibly a reference to 40
C.F.R. § 1506.11 of the CEQ regulations, which authorizes a Federal agency to
forego NEPA review where action is necessary to control the immediate im-
pacts of an emergency.
13 Notwithstanding the applicability of the statutory conflict exemption, the
Agency has an obligation under CERCLA to assess, short of an elaborate, EIS-
type analysis, the potential environmental impacts of removal actions. Clearly,
an assessment of this sort cannot be extensive for immediate removals due to
their emergency orientation. However, because planned removals proceed on a
relatively less urgent basis, it is incumbent upon EPA to undertake such an
assessment to a greater degree when conducting planned removals.
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II. Issue
Whether remedial actions under § 104 of CERCLA are subject
to the EIS requirement of § 102(2)(C) of NEPA.
Answer
CERCLA requires remedial actions to include a thorough
review of environmental factors. If EPA conducts this review in
accordance with procedures set forth in the NCP and incorpo-
rates public participation in the decisionmaking process, it is
likely that remedial actions will qualify for the functional
equivalent exception to the EIS requirement.
Discussion
Remedial actions under § 104 of CERCLA involve long-term
actions consistent with a permanent remedy to prevent or min-
imize the release of hazardous substances. See § 101(24) of
CERCLA (42 U.S.C. §9601(24)). In contrast to removal actions,
remedial actions normally address situations that do not require
an immediate or expedited response and therefore allow for the
time necessary to conduct detailed planning and evaluation.
Because of the time available for remedial actions, it is un-
likely that application of § 102(2)(C) of NEPA would severely
disrupt the remedial action process so as to justify an EIS ex-
emption on the ground of statutory conflict. Nevertheless, re-
medial actions potentially qualify for another exception to the
EIS requirement developed by courts for situations where an
agency achieves NEPA's objective of full disclosure of environ-
mental effects through means comparable to an EIS. This ex-
emption, commonly known as the "functional equivalent" ex-
ception,14 has been applied to specific regulatory activities of
14 As a threshold matter, it should be noted that the legislative history of
CERCLA does not bar the application of a functional equivalent exception to
remedial actions. The Senate Report accompanying S. 1480 states that remedial
actions, by virtue of their relatively long lead time and allowance for planning,
would require a written assessment of alternatives and that in some circum-
stances, preparation of an EIS might be deemed necessary. See S. Rep. 848,
96th Cong., 2d Sess. 61 (1980); note 11, supra. This statement, however, should
not be viewed as establishing a congressional intent that the formal EIS process
be the sole vehicle for analyzing the environmental impacts of large scale re-
medial actions. Properly interpreted, the statement reflects Congress' overriding
concern that the environmental consequences of remedial actions be fully ex-
plored. Application of the functional equivalent exception does not violate this
concern, since the exception can only be invoked where the substance of
§ 102(2)(C) of NEPA has been fulfilled.
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EPA under the Clean Air Act, 42 U.S.C. §§7401 et seq.,15 the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7
U.S.C. §§136 et seq.,16 the Marine Protection, Research and
Sanctuaries Act of 1972, 33 U.S.C. §§1401 et seq.,11 and the
Toxic Substances Control Act, 15 U.S.C. §§2601 et seq.18
In general, under the functional equivalent exception, an
Agency with expertise in environmental matters is not obligat-
ed to comply with the formal EIS process prior to taking a
particular action 19 if two criteria are met. First, the agency's
authorizing statute must provide "substantive and procedural
standards [that] ensure full and adequate consideration of envi-
ronmental issues." Environmental Defense Fund, Inc. v. EPA, 489
15 See e.g., Amoco Oil Co. v. EPA, 501 F.2d 722, 749-50 (D.C. Cir. 1974) (issuance
of fuel additive regulations); Essex Chemical Corp. v. Ruckelshaus, 486 F.2d 427, 431
(D.C. Cir. 1973) (promulgation of new source performance standards), cert.
denied, 416 U.S. 969 (1974); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375,
384-87 (D.C. Cir. 1973) (promulgation of new source performance standards).
In 1974, Congress enacted the Energy Supply and Environmental Coordination
Act, Pub.L. 93-319, which explicitly exempted from § 102(2)(C) of NEPA ac-
tions taken by the Administrator under the Clean Air Act (see 15 U.S.C.
§793(c)(l)).
ieSee State of Wyoming v. Hathaway, 525 F.2d 66, 72-73 (10th Cir. 1975) (cancel-
lation and suspension of economic poisons), cert, denied, 425 U.S. 906 (1976); En-
vironmental Defense Fund, Inc. v. EPA, 489 F.2d 1247, 1254-57 (D.C. Cir. 1973)
(cancellation of pesticide registration); Environmental Defense Fund, Inc. v. Blum, 458
F. Supp. 650, 661-62 (D.D.C. 1978) (approval of exemption from pesticide reg-
istration).
"See State of Maryland v. Train, 415 F. Supp. 116, 121-22 (D. Md. 1976) (issu-
ance of ocean dumping permit), reo'd on other grounds, 556 F.2d 559 (4th Cir.
1977).
18 See Warren County v. State of North Carolina, 528 F. Supp. 276, 286-87 (E.D.
N.C. 1981) (approval of PCB disposal site); Twitty v. State of North Carolina, 527
F. Supp. 778, 783 (E.D. N.C. 1981) (approval of PCB disposal site).
19 While the courts have traditionally applied the functional equivalent excep-
tion to regulatory actions, there is nothing to prevent the exception from ap-
plying to site-specific, nonregulatory activities such as remedial actions, absent
a specific statutory directive that the activities comply with the EIS require-
ment and provided the activities otherwise meet the judicially formulated
standards for the exception. Certainly, an extension of the exception to remedi-
al actions would not constitute a radical departure from existing case law,
given the willingness of courts to invoke the exception for regulatory actions
having site-specific impacts. See Warren County v. State of North Carolina, supra note
18; Tioitty v. State of North Carolina, supra note 18; State of Maryland v. Train, supra
note 17.
49
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F.2d 1247, 1257 (D.C. Cir. 1973).20 Second, the Agency must
afford an opportunity for public participation in the evaluation
of environmental factors prior to arriving at a final decision.21
Remedial actions appear to satisfy the first criterion for a
functional equivalent exception because of the mandate for en-
vironmental assessment contained in § 104 of CERCLA and the
procedural safeguards developed by EPA for the remedial plan-
ning process. In this context, § 104(a)(l) of CERCLA specifical-
ly directs that remedial actions be "necessary to protect public
health or welfare or the environment." As such, it establishes a
substantive standard of environmental protection that requires
remedial actions to include a thorough investigation of environ-
mental questions.22 Moreover, this requirement is supplemented
by procedures set forth in the NCP pursuant to § 105 of
CERCLA, 42 U.S.C. §9605,23 which establish a process for
conducting an analysis during the planning of remedial actions
that is basically similar to the evaluation underlying an EIS.24
20 In judging the adequacy of an Agency's consideration of environmental im-
pacts, the courts have often focused on whether the Agency examined the five
core issues of an EIS set forth in § 102(2)(C)(i)-(v) of NEPA. See Environmental
Defense Fund, Inc. v. EPA, supra, 489 F.2d at 1256; Environmental Defense Fund, Inc. v.
Blum, supra, 458 F. Supp. at 661. They have also indicated, however, that the
functional equivalent exception does not necessarily require an agency to sepa-
rately address each element of an EIS analysis, especially where the Agency's
authorizing statute provides for an orderly review of diverse environmental fac-
tors. See Pacific Legal Foundation v. Andrus, 657 F.2d 829, 834 n.4 (6th Cir. 1981);
Amoco Oil Co. v. EPA, supra, 501 F.2d at 750; Warren County v. State of North Caro-
lina, supra, 528 F. Supp. at 287.
21 See e.g., Portland Cement Ass'n v. Ructelshaus, supra, 486 F.2d at 386; Environmental
Defense Fund, Inc. v. EPA, supra, 489 F.2d at 1256; Warren County \. State of North
Carolina, supra, 528 F. Supp. at 287; State of Maryland v. Train, supra, 415 F. Supp.
at 122. See also Weinberger v. Catholic Action of Hawaii Peace Education Project,
U.S , 102 S. Ct. 197, 201 (1981) (stating that one objective of § 102(2)(C) of
NEPA is to inform the public that environmental concerns have been consid-
ered).
22 See Environmental Defense Fund, Inc. v. EPA, supra, 489 F.2d at 1256 (language in
FIFRA requiring deregistration of pesticides that would be injurious to man or
the environment creates substantive standard mandating consideration of envi-
ronmental effects).
23 Section 105(3) of CERCLA requires EPA to publish a revised National Con-
tingency Plan that includes methods and criteria for determining the appropri-
ate extent of remedial actions.
24 Section 300.68 of the NCP contains procedures which provide for:
Continued
50
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To the extent that these procedures are followed, it is likely
that a court would view remedial actions as embodying the
type of environmental assessment needed to qualify for the ex-
ception.
It must be recognized, however, that CERCLA does not pre-
scribe requirements for public involvement in the remedial
planning process that would enable remedial actions to meet
the public participation criterion for a functional equivalent ex-
ception. Such requirements are also absent from the NCP,
which merely recommends that remedial actions, to the extent
practicable, be undertaken in a manner sensitive to local com-
munity concerns in accordance with applicable guidance. (NCP,
§ 300.61(c)(3).) Accordingly, in order for the functional equiva-
lent exception to apply, it will be necessary for remedial ac-
tions to incorporate procedures that afford the public a mean-
ingful opportunity to comment on environmental issues before
the final selection of a remedial alternative. While these proce-
dures need not involve the holding of a formal public hear-
ing,25 they should at least entail other, less formal mechanisms
for soliciting public input.
1. The identification of the appropriate type of remedy based on
a consideration of factors that include environmental effects and
welfare concerns (§ 300.68(e));
2. The development of feasible alternatives, including consider-
ation of the no-action alternative where action may cause a
greater environmental or health danger than no action
(§ 300.68(g)); and
3. The elimination of alternatives that would have significant ad-
verse environmental impacts (§ 300.68(h)(2)).
In emphasizing the consideration of alternatives and their environmental im-
pacts, these procedures are similar to the analytical process mandated by the
CEQ regulations, 40 C.F.R. § 1502.14.
25 Although the provision of public hearings has undoubtedly influenced courts
in granting functional equivalent exceptions, e.g., Amoco Oil Co. v. EPA, supra,
501 F.2d at 750; Environmental Defense Fund, Inc. v. EPA, supra, 489 F.2d at 1256,
such hearings should not be viewed as a critical element of the exception. This
is because NEPA itself provides no right to a public hearing. See Coma-Falcon
Community Coalition, Inc. v. United States Dept. of Labor, 609 F.2d 342, 344-45 (8th
Cir. 1979), cert, denied, 446 U.S. 936 (1980); Cross-Sound Services, Inc. v. United States,
573 F.2d 725, 731-32 (2d Cir. 1978); Slate of Wyoming v. Hathaway, supra, 525
F.2d at 72 n.7.
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In conclusion, it must be stressed that remedial actions do
not automatically qualify for the functional equivalent excep-
tion to § 102(2)(C) of NEPA. Rather, the availability of the ex-
ception is contingent upon structuring remedial actions to satis-
fy the requirements for environmental assessment and public
participation underlying the exception. If EPA complies with
the procedures for environmental evaluation contained in the
NCP and provides for public comment during the decisionmak-
ing process, a strong argument can be made that the exception
is applicable. However, if these precautions are not taken, there
is a considerable risk that a court will find remedial actions to
be subject to the EIS requirement.
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December 15, 1982
MEMORANDUM
SUBJECT: Liability Under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980
for Releases of Hazardous Substances in Amounts
Less Than "Reportable Quantities"
FROM: Robert M Perry
Associate Administrator and General Counsel
TO: All Regional Counsel
The question has arisen whether there is liability under the
Comprehensive Environmental Response, Compensation, and Li-
ability Act of 1980 (CERCLA or the Act) for releases of haz-
ardous substances in amounts less than "reportable quantities."
I believe that CERCLA quite clearly establishes liability when-
ever there is a release or a threatened release of a hazardous
substance, regardless of quantity.
Discussion
CERCLA creates a comprehensive scheme for dealing with haz-
ardous waste sites and other releases or threatened releases of
hazardous substances, pollutants, or contaminants. The Act
grants broad authority for the Federal Government to respond
whenever "any hazardous substance is released or there is a
substantial threat of such a release into the environment."
§ 104(a). Liability arises whenever "there is a release, or a
threatened release which causes the incurrence of response
costs, of a hazardous substance." § 107(a). The term "hazardous
substance" is defined in Section 101(14) as any substance des-
ignated under CERCLA or one of four other environmental
laws. None of these three provisions—regarding response, li-
ability, or the definition of hazardous substance—is limited in
any way by "reportable" or other quantities.
Only the reporting provisions of the Act are limited by "re-
portable quantities."1 This indicates that when Congress in-
1 Section 102(h) of CERCLA establishes "reportable quantities" for each hazard-
ous substance. Pending promulgation of regulations, a quantity of either one
pound or, if available, the reportable quantity established under § 311 of the
Clean Water Act shall be the reportable quantity for purposes of CERCLA.
Continued
53
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tended that a provision be triggered by the release of a certain
amount of a substance, it clearly knew how to express that
intent. The absence of such limitation in § 107 establishes that
the release of a reportable quantity is not necessary in order
for liability to arise.2
While the language of the Act itself is enough to establish
this principle, the legislative history provides additional sup-
port. The report accompanying the Senate provision, which was
very similar to the provision actually enacted, noted:
The provision intentionally omits from the re-
quirement to determine "reporting" quantities any
reference to harm or hazard. A single quantity is
to be determined for each hazardous substance,
and this single quantity requires notification upon
release into any environmental medium. It would
be virtually impossible to determine a single quan-
tity applicable to all media while at the same time
linking such quantity to any subjective concept of
harm.
It is essential that quantities be relatively simple
for those subject to notification requirements to
understand and comply with. Since releases in such
quantities trigger notification requirements, but do not, in
and of themselves give rise to other liabilities under this Act,
the President's broad discretion to select quantities
will not unfairly burden those persons subject to
the Act. (Emphasis added.)
S. Rep. 848, 96th Cong., 2d Sess. 29 (1980).
In conclusion, liability under CERCLA is not limited to in-
stances where releases exceed reportable quantities.
Section 103(a) requires releases of hazardous substances "in quantities equal to
or greater than those determined pursuant to Section 102" to be reported to
the National Response Center.
2 It is also noteworthy that unlike CERCLA, the liability provisions of § 311(f)
of the Clean Water Act explicitly require as an element of liability that the
discharge be "in violation of subsection (b)(3)," i.e., quantities equal to or
greater than a reportable quantity.
54
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June 22, 1983
MEMORANDUM
SUBJECT: Resource Conservation and Recovery Act
Regulation of Wastes Handled by
Department of Energy Facilities
FROM: A. James Barnes
Acting General Counsel
TO: Pasquale A. Alberico
Acting Director
Office of Federal Activities
Issue Presented
In your June 2, 1983, memorandum, you have asked whether
the Resource Conservation and Recovery Act (RCRA) applies
to Department of Energy (DOE) facilities.
Conclusion
RCRA does apply to DOE facilities, including those operated
under authority of the Atomic Energy Act of 1954, as amended
(AEA), 42 U.S.C. § 2011 et seq. However, specific RCRA regula-
tions may not apply to some aspects of DOE operations, if it
is determined, on a case-by-case basis, that the application of
those regulations would be inconsistent with the requirements
of the AEA. In addition, RCRA does not apply to "source,
special nuclear or by-product materials" as defined by the
AEA.1
Discussion
A. Nuclear Wastes
The only materials that EPA can regulate under RCRA are
"solid wastes" and "hazardous wastes" (which are a subset of
"solid wastes"). Section 1004(27) of RCRA expressly exempts
from the definition of "solid waste":
1 This memorandum will use the term "nuclear wastes" to refer to wastes con-
sisting of "source, special nuclear or by-product material." Other types of
wastes are referred to herein as "chemical wastes."
55
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source, special nuclear or by-product material as
defined by the Atomic Energy Act of 1954, as
amended.
Thus, it is clear that RCRA does not apply to nuclear wastes
handled at DOE facilities.
B. Chemical Wastes
Section 6001 of RCRA expressly provides that Federal facilities
that manage wastes are subject both to EPA and State require-
ments respecting the control and abatement of solid waste or
hazardous waste disposal. However, such regulation of chemical
wastes at DOE facilities is limited by §1006 of RCRA, which
provides in part that:
[njothing in this Act shall be construed to apply
to (or to authorize any State ... to regulate) any
activity or substance which is subject to the . . .
Atomic Energy Act of 1954 . . . except to the
extent that such application (or regulation) is not
inconsistent with the requirements of [the AEA].
While this provision clearly precludes any EPA or State reg-
ulation that would be inconsistent with DOE responsibilities
under the AEA, we cannot agree with DOE's contention 2 that
because "the AEA itself establishes a regulatory framework by
which DOE ... is authorized to prescribe and enforce regula-
tions and other requirements necessary for the sound manage-
ment of the AEA activities," any application of EPA's hazard-
ous waste management regulations would be inconsistent with
the requirements of the AEA (DOE letter, p. 2).
First, DOE's analysis would render the cited language in
§ 1006 a nullity. By its very presence in RCRA, that provision
clearly suggests that there may be some activities and wastes
subject to the AEA that EPA can regulate.
Second, the notion that national security considerations dic-
tate a general exemption of all DOE AEA facilities is belied by
§ 6001 of RCRA, which authorizes the President to:
exempt any solid waste management facility of
any department ... in the executive branch from
compliance with fa Federal or State solid or haz-
2 This contention was expressed in a letter (copy attached) dated November 14,
1980, from Stephen Greenleigh, Assistant General Counsel for Environment at
DOE to the former Associate General Counsel for Water and Solid Waste at
EPA. The letter is referred to herein as the "DOE letter."
56
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ardous waste] requirement if he determines it to
be in the paramount interest of the United States
to do so.
If the application of a Federal or State standard to DOE facili-
ties is inimical to national security, DOE may seek a Presiden-
tial "paramount interest" exemption from those standards.
Absent such an exemption, the applicability or inapplicability
of EPA and State solid and hazardous waste regulations must
depend on their consistency (or inconsistency) with AEA re-
quirements.
Third, the AEA provision which DOE cites as evidence of its
broad regulatory authority under the AEA (§ 161(i)(3)) does not
by itself compel the conclusion that the regulation of DOE fa-
cilities under RCRA would necessarily be inconsistent with that
authority.3 Section 161(i)(3) authorizes DOE to prescribe
"standards and restrictions governing the . . . operation of fa-
cilities used to conduct [AEA activities] in order to protect
health and to minimize danger to life and property." Even if
we admit the possibility that all of EPA's hazardous waste reg-
ulations could be inconsistent with the standards and restric-
tions of facility operations promulgated by DOE under this
provision, there is no way of determining this without a com-
parison of the two sets of standards. Neither EPA nor DOE
has undertaken such a comparison. Indeed, in its correspond-
ence, DOE has not identified a single RCRA regulation that is
inconsistent with requirements that DOE facilities must meet
under the AEA.
In its letter, DOE also asserts that § 161(j) of the AEA pre-
empts any application of RCRA to chemical wastes managed at
DOE facilities. Section 161(j) provides that DOE may:
without regard to the provisions of the Federal
property and Administrative Services Act of
1949 ... or any other law, make such disposition
as it may deem desirable of (1) radioactive materi-
als, and (2) any other property, the special dispo-
sition of which is, in the opinion of [DOE] in the
interest of the national security.
3 It has already been judicially determined that the fact that RCRA may over-
lap with another statute does not mean that RCRA regulations are inapplicable.
CMA v. EPA, 673 F.2d 507 (D.C. Or. 1982).
57
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Again, this provision does not compel the conclusion reached
by DOE. Section 161(j) was adopted in 1959, well before en-
actment of RCRA and any manifestation of congressional con-
cern about the problem of hazardous waste disposal. The
quoted section, despite its "without regard to ... any other
law" provision, cannot be construed to limit the application of
a law enacted 17 years later, which pertains to an area of con-
cern that: (1) is unrelated to Federal disposition of property;4
(2) specifically requires all Federal facilities to meet applicable
State and Federal solid waste management requirements; and
(3) establishes a special procedure for exempting Federal facili-
ties from those requirements if it is in the "paramount inter-
est" of the United States to do so. Thus, in our opinion,
§ 161(j) cannot be construed to confer on DOE facilities a
blanket exemption from RCRA requirements.5
In short, we cannot conclude that DOE activities under the
AEA, simply by their virtue of being AEA activities, are
exempt from RCRA requirements. However, we do not reject
the possibility that some RCRA regulations might be inconsist-
ent with AEA requirements and therefore inapplicable to DOE
facilities. Such inconsistency can only be determined on a case-
by-case basis. EPA and DOE should be able to identify incon-
sistent regulations by a cooperative effort.
C. Mixtures of Chemical Wastes and Nuclear Wastes
EPA's authority to regulate chemical wastes at DOE facilities
may be limited to the extent that such wastes are mixed with
nuclear wastes. An argument can be made that any regulation
of mixtures of chemical and nuclear waste would amount to de
facto regulation of nuclear wastes, and is thus precluded under
4 It is doubtful that the term "property" in § 161(j) even encompasses wastes.
The citation in § 161(j) to the Federal Property and Administrative Services Act
of 1949, the title of § 161(j) ("surplus materials") as well as references to the
purchasing and leasing of property in other paragraphs of § 167 all suggest that
the term has a very traditional meaning and does not include sludges, garbage,
tars, trash, and other wastes.
5 Although we believe that § 161(j) was not intended to abridge subsequently
enacted statutes pertaining to different subject matter, it is an elementary prin-
ciple of statutory construction that inconsistent provisions must be resolved in
favor of the later enacted statute. See, e.g., Georgia v. Pennsylvania R. Co., 324 U.S.
439, 456-57 (1945); International Telephone & Telegraph Co. v. General Telephone and
Electronics Corp., 518 F.2d 913, 935 (9th Cir. 1975).
58
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§ 1004(27). It may also be argued that the addition of small
quantities of nuclear waste to solid waste does not remove
such solid wastes from RCRA jurisdiction.
Further information as to the precise nature of such mixtures
is necessary in order to reach a definite legal position on this
issue, which goes far beyond the question of whether DOE fa-
cilities are subject to RCRA regulatory requirements.6 We
would need to consult further with DOE on this matter and to
analyze additional data before making a final decision.
Attachment [Deleted.]
6 Our interpretation would affect our ability to regulate private facilities han-
dling mixtures of nuclear and chemical wastes and our ability to bring immi-
nent hazard actions under § 7003 of RCRA.
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January 19, 1984
MEMORANDUM
SUBJECT: Relationship of the Resource Conservation and
Recovery Act to the Department of Energy's
Activities Under the Atomic Energy Act
FROM: A. James Barnes
General Counsel
TO: Theodore B. Olson
Assistant Attorney General
Introduction
This memorandum is in response to the memorandum of the
Department of Energy's General Counsel, dated December 2,
1983 (the DOE memo). This memorandum supplements my
earlier memorandum of June 22, 1983 (attached), which was
discussed in the DOE memo.
Issue Presented
Are DOE facilities operated under authority of the Atomic
Energy Act of 1954 (AEA), 42 U.S.C. §§2011 el seq., categori-
cally exempt from the application of Federal and State laws
governing the generation, transportation, storage, and disposal
of hazardous chemical waste?1
Conclusion
DOE facilities operating under authority of the AEA are not
categorically exempt from Federal and State hazardous waste
laws unless the President orders an exemption in the "para-
mount interest" of the United States. Otherwise, such facilities
are exempt only to the extent it is shown that the application
of a particular law or regulation to a particular DOE activity is
inconsistent with the requirements of the Atomic Energy Act.
The Environmental Protection Agency (EPA) accepts the
premise that national security and other considerations may re-
quire some adjustments in the application of hazardous waste
regulations, and agrees with DOE that continued operation of
1 The waste referred to is that characterized as hazardous under the Resource
Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq., and does not
include source, special nuclear, or by product material as defined by the AEA.
See RCRA § 1004(24).
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certain facilities vital to the national defense cannot be "de-
pendent on permission granted by state officials . . . ."2
Discussion
In enacting RCRA, Congress made clear its concern with the
performance of Federal agencies in controlling hazardous waste
at their own facilities. Section 6001 of RCRA, which specifical-
ly subjects Federal facilities to State and EPA hazardous waste
regulation, was enacted precisely because of this concern. Sig-
nificantly, the examples cited by Congress of the danger of
improper waste disposal included leaks of radioactively con-
taminated wastes at DOE's facility in Hanford, Washington.
H.R. Rep. 1491, 94th Cong., 2d Sess. 19.
As DOE acknowledges (DOE memo at 21), an important
consideration in the applicability of hazardous waste law to
DOE activities is § 1006(a) of RCRA, which provides:
Application of Act—Nothing in this Act shall be
construed to apply (or to authorize any State, inter-
state, or local authority to regulate) any activity or
substance which is subject to the Federal Water
Pollution Control Act (33 U.S.C. 1151 and follow-
ing), the Safe Drinking Water Act (42 U.S.C. 300f
and following), the Marine Protection, Research
and Sanctuaries Act of 1972 (33 U.S.C. 1401 and
following), or the Atomic Energy Act of 1954 (42
U.S.C. 2011 and following) except to the extent
that such application (or regulation) is not inconsist-
ent with the requirements of such Acts. (Emphasis
added.)
The clear meaning of this provision is that activities subject to
the AEA are subject to hazardous waste regulation when such
regulation is not inconsistent with the requirements of the
AEA. Thus, hazardous waste regulation must apply unless it
can be shown to conflict with a "requirement" of the AEA.
DOE asserts, however, that any application of hazardous
waste regulations to its facilities is proscribed. (DOE memo at
2.) We submit that § 1006 of RCRA does not provide such a
categorical exemption from the clear authority of § 6001. First,
it is clear that when Congress desired to defer regulation of a
2 Letter of December 2, 1983, from Theodore Garrish to Theodore B. Olson,
transmitting DOE memo, page 2, 1st para.
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particular realm of activity to a different regulatory scheme, it
did so explicitly. § 1006(c).3 Moreover, there is nothing in
§ 1006 or its legislative history to indicate, as DOE asserts
(DOE memo at 23), that RCRA was meant to apply to activi-
ties licensed by the Nuclear Regulatory Commission (NRC),
but not to DOE activities under the AEA.
DOE's argument that application of EPA or State hazardous
waste regulatory authority to its facilities would be inconsistent
per se with AEA requirements appears to be based on three
principles: First, under § 161(i)(3) of the AEA, DOE has au-
thority to regulate hazardous waste. (DOE memo at 29-30.)
Second, application of hazardous waste regulations, particularly
the public participation procedures, would be inconsistent with
national security concerns related to the production of atomic
energy and military weapons. (DOE memo at 28.) Finally, the
major role played by the States in hazardous waste regulation
is inconsistent with the AEA's scheme of vesting complete au-
thority over atomic energy and weapons production in DOE.
(DOE memo at 27.) We submit that none of these alleged in-
consistencies is cause for concluding that DOE facilities are
categorically exempt from RCRA regulation.
I. Any Authority of DOE Over Hazardous Wastes Is Not a "Require-
ment" of the AEA
The first step in determining the "requirements" of a statute
(where these requirements are not unambiguously stated in
prescriptive terms) is to analyze the statute's stated purpose.
Section 1 of the AEA declares that it is the policy of the
United States that:
a. the development, use, and control of atomic
energy shall be directed so as to make the maxi-
mum contribution to the general welfare, subject
at all times to the paramount objective of making
the maximum contribution to the common defense
and security; and
b. the development, use, and control of atomic
energy shall be directed so as to promote world
peace, improve the general welfare, increase the
3 Section 1006(c) vests in the Department of the Interior "exclusive responsibil-
ity" for implementing hazardous waste regulations with respect to coal mining
wastes.
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standard of living, and strengthen free competition
and private enterprise.
Section 3 of the AEA states that it is the Act's purpose to ef-
fectuate the above policy.
As the Senate Report accompanying the bill (S. 3690) which,
with minor amendments, became the Atomic Energy Act of
1954 states in its analysis of § 1:
The aim of the bill is to assure that atomic
energy makes the maximum contribution to the
general welfare of the Nation, subject to the para-
mount objective of having it make the maximum
contribution to the common defense and security
S. Rep. 1699, 83d Cong., 2d Sess., reprinted in U.S. Code Cong.
& Admin. News at 3456, 3457 (1954).
In short, the raison d'etre of the Atomic Energy Act is
atomic energy; the Act lays out a comprehensive scheme for
the promotion, use, and regulation of atomic energy. The AEA
is not aimed at the protection of human health and the envi-
ronment from hazardous wastes; Congress enacted RCRA for
that purpose. Thus, Congress provided in §§6001 and 1006
that RCRA's scheme for regulating hazardous waste would
apply unless it conflicts with the requirements of the AEA. In
the absence of a direct prescriptive provision in the AEA, in-
terpretation of the phrase, "requirements of the AEA," must be
predicated on whether a hazardous waste regulation would be
inconsistent with the AEA's purpose of assuring that atomic
energy makes the maximum contribution to the Nation's wel-
fare and defense.
DOE appears to discern a "requirement" in § 161(i)(3) of the
AEA, which:
authorize[s] DOE to prescribe such regulations or
orders as it may deem necessary ... (3) to
govern any activity authorized pursuant to this
Act, including standards and restrictions governing
the design, location, and operation of facilities
used in the conduct of such activity, in order to
protect health and to minimize danger to life or
property.
42 U.S.C. § 2201(i)(3). This provision, which is part of the
chapter "setting forth the general powers of the [DOE] in op-
erating or regulating any of the activities authorized by [the
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AEA]." S. Rep. 1699, supra. U.S. Code Cong. & Admin. News
at 3481 (1954), does not address the subject of nonnuclear haz-
ardous wastes. Rather, as the Senate Committee's line-by-line
analysis states, for purposes pertinent here, § 161 permits the
Commission to "... govern activities authorized pursuant to
the bill, including health and safety regulations; [and] to dis-
pose of radioactive materials or property where special disposi-
tion is needed in the interests of national security." Id. There is
no suggestion in the AEA or its legislative history that DOE is
authorized, much less required, to establish a regimen for the
control of nonradioactive wastes. Significantly, § 161(i)(3) refers
only to the protection of human health and property and does
not address the protection of the environment.4
Indeed, little congressional attention to the issue of hazardous
waste disposal is in evidence in the AEA or its legislative his-
tory. The dimensions of the Nation's hazardous waste problem
were not generally acknowledged until more than a decade
after enactment of the AEA. To the extent that the statute
does address such hazards, it recognizes the role of EPA and
the States. Section 84 of the AEA, added by the Uranium Mill
Tailings Radiation Control Act of 1978, Pub.L. 95-604, requires
that the NRC ensure that the management of uranium and
thorium tailings conforms to general standards promulgated by
EPA under § 275 of the AEA and conforms to requirements es-
tablished by NRC, with the concurrence of EPA, which are, to
the maximum extent practicable, comparable to EPA's require-
ments for hazardous waste regulated under RCRA. In addition,
§ 274(k) of the AEA preserves State jurisdiction over nonradia-
tion hazards.
Nonetheless, it is reasonable to assume that Congress intend-
ed that the Atomic Energy Commission and its successors have
the authority to keep their own facilities in order, and
§ 161(i)(3) could be interpreted in that light. However, that
common-sense assumption of housekeeping authority over non-
radioactive wastes can scarcely support the contention that the
AEA established a "scheme" for DOE regulation of its hazard-
ous wastes and that any RCRA-authorized regulation of such
4 The focus of RCRA is the protection of human health and the environment.
See, e.g., RCRA § 1003.
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wastes must yield.5 Any authority that DOE has over nonra-
dioactive waste is incidental to its statutory mandate, and must
yield to regulation under RCRA, the statute designed to control
hazardous waste, unless such regulation would be inconsistent
with the AEA's atomic energy requirements.
II. National Security Concerns Da Not Dictate a Categorical Exemption
from RCRA
In enacting RCRA, Congress was concerned that the public
have adequate notice and input regarding the measures taken
by the Government to control hazardous waste. § 7004(b),
RCRA, 42 U.S.C. §6974(b).
We share DOE's concern that these procedures not compro-
mise efforts to restrict the dissemination of restricted data per-
tinent to the design or construction of nuclear weapons and
production and use of special nuclear materials. However, the
resolution of this tension between the statutes does not lie in
nonapplicability of one or the other. First, it is unlikely that
public access to all information about all hazardous wastes at
all DOE facilities operated under the AEA must be restricted.
For example, if DOE facilities discard left-over paints, spent
cleaning solvents, and pesticides (as do most industrial oper-
ations), it seems unlikely that it would be necessary to restrict
public access to this information. Moreover, the RCRA program
could be structured so that sensitive information is not made
public. For example, permits issued might not specifically list
all wastes or operations that are covered. Federal and State in-
spectors could be excluded from highly sensitive areas or re-
quired to obtain appropriate security clearances.6 EPA is work-
5 As noted above, where Congress has wished to reserve regulation over a cer-
tain set of hazardous wastes to an agency other than EPA, it has done so ex-
plicitly in the very statutory section under discussion. Compare § 1006(a) of
RCRA to § 1006(c), which specifically authorizes the Secretary of the Interior
to regulate hazardous coal mining wastes. If Congress intended that DOE
should be solely responsible for regulating hazardous waste management at its
facilities, it was well capable of doing so explicitly.
6 In fact, DOE has obtained National Pollutant Discharge Elimination System
(NPDES) permits for its facilities under the Clean Water Act. The discharge
limitations in some of the permits, such as that for the Savannah River facility
(NPDES Permit No. TN-0002968), are classified.
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ing with other Federal agencies, such as the Department of
Defense, to ensure that the RCRA program is implemented,
while fully protecting classified information.
If these or other measures are not practicable, it may be that
specific applications of hazardous waste regulations will have to
yield. However, this conclusion cannot be made on a general,
abstract basis, but only with reference to specific AEA activi-
ties and specific aspects of hazardous waste regulation. Finally,
to reemphasize a point expressed in my earlier memo, the
availability of the "paramount interest" exemption in § 6001 of
RCRA belies a generalized claim of exemption based on na-
tional security grounds.7
III. State Regulation Is Not Per Se Inconsistent with AEA Requirements
DOE's memorandum exhaustively details the evolution of Fed-
eral authority under the AEA and correctly concludes that
State authority over atomic energy is preempted. However, that
conclusion applies only to atomic energy; it does not apply to
nonradioactive hazardous waste. Illinois v. Ken McGee Corp., 677
F.2d 571, 580 (7th Cir. 1982), cert, denied, U.S. , 74 L.
Ed. 2d 618 (1983). As DOE concedes: "each state remains free
to regulate nuclear powerplants in order to further objectives
distinct from radiation safety . . . ." DOE memo at 7, quoting
Pacific Legal Foundation v. State Energy Resources Conservation and Devel-
opment Commission, 659 F.2d 903, 928 (9th Cir. 1981), aff'd sub
nom. Pacific Gas and Electric Co. v. State Energy Resources Conservation
and Development Commission, U.S. , 103 S.Ct. 1713 (1983).
In fact, § 274(k) of the AEA specifically provides:
"nothing in this section shall be construed to
affect the authority of any State ... to regulate
activities for purposes other than protection
against radiation hazards."
42 U.S.C. § 2021(k). See Pacific Gas and Electric Co., supra; Northern
States Power Co. v. Minnesota 447 F.2d 1143, 1151, (8th Cir. 1971),
7 Contrary to DOE's suggestion (DOE memo at 31), there is no indication in
the legislative history that the "paramount interest" exemption was directed at
any concerns other than those pertaining to national security. Even if Congress
did have other concerns in mind, there can be no doubt that national security
concerns can implicate the "paramount interest" of the United States.
66
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aff'd, 405 U.S. 1035 (1972).8 The State role in regulating nonra-
dioactive materials was recognized by the Supreme Court:
"Congress, by permitting regulation 'for purposes other than
protection against radiation hazards/ underscored the distinction
drawn in 1954 between the spheres of activity left respectively
to the federal government and the States." Pacific Gas and Electric
Co., supra, U.S. 75 L. Ed. 2d at 769.
Even if the 1965 amendments to the AEA had preempted
State authority over nonradioactive hazards at DOE facilities,9
any notion that DOE facilities may enjoy "sovereign immuni-
ty" from State regulation of solid and hazardous wastes was
put to rest by the enactment of § 6001 of RCRA, which ex-
plicitly provides for the application of State hazardous waste
laws to Federal facilities. There is no general exemption for fa-
cilities conducting activities involving sensitive national security
concerns; the President has authority to exempt specific facili-
ties. Thus, the contention that DOE is exempt from State haz-
ardous waste regulation must be grounded on either a Presi-
dential order or § 1006(a) of RCRA, not the doctrine of sover-
eign immunity.
Section 1006(a), however, envisions State regulation except to
the extent such regulation is inconsistent with AEA require-
ments. If all State regulation were ipso facto inconsistent with
AEA requirements, there would have been no need to include
that clause in the statute.10 Rather, inconsistency with State
8 Contrary to DOE's assertion. Train v. Colorado PIRG, 426 U.S. 1, 16, does not
find an "absence of any room for a state role under the AEA." DOE memo at
27. A more complete quotation of the passage cited by DOE: "The absence of
any room for a state role under the AEA in setting limitations on radioactive dis-
charges . . ." (emphasis added), reveals the limitation of Colorado PIRG's concern
over State incursion to an area clearly subject to the AEA's preemptive author-
ity. The holding of Colorado PIRG was more limited still: source, special nuclear,
and byproduct material is not a "pollutant" under the Clean Water Act and is
therefore not subject to permitting requirements under that Act when dis-
charged to navigable waters. 426 U.S. at 25.
9 Such a conclusion is scarcely tenable in light of § 274(k), which was left un-
changed by the 1965 amendments.
10 The "except to the extent inconsistent" clause cannot be explained as a pro-
vision to allow the States to regulate nonradioactive waste disposed of by AEA
licensees (DOE memo at 23); States may regulate such waste without reference
to RCRA and in fact most States regulate radioactive waste pursuant to agree-
ment with NRC under § 274 of the AEA.
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regulation must be determined on a case-specific basis. For ex-
ample, we agree that in many cases, a State could not "condi-
tion the continued operation of a DOE facility" (DOE memo
at 27) on the issuance of a permit. Clearly, the shutdown of a
weapon-producing facility would be inconsistent with AEA re-
quirements.11 As with Federal regulation, State regulation
would have to be tailored to DOE facilities in order to avoid
inconsistencies with the atomic energy concerns of the AEA,
while accommodating to the maximum extent practicable
RCRA's goal of protecting human health and the environment
from hazardous wastes.
Practical Consequences
Finally, I must take issue with DOE's contention (DOE memo
at 32) that the application of RCRA to DOE facilities would
work an "absurd and futile result." RCRA provides a compre-
hensive scheme for the management of hazardous waste to
protect human health and the environment; there is no evi-
dence that such a scheme would be superfluous at DOE facili-
ties.12 DOE's business is with an entirely different matter—the
production and promotion of atomic energy and nuclear weap-
ons. No reason is apparent why the RCRA and AEA programs
cannot operate together, subject to adjustments necessary to
meet national security concerns.13
Attachment [Deleted.]
11 It has been recognized that jurisdiction over pollution by Federal facilities
does not necessarily imply that a facility must be shut down for failure to
comply with the law. Weinberger v. Romero-Bamlo, 456 U.S. 305 (1982).
12 To the contrary, serious concern has been expressed over the status of haz-
ardous wastes at DOE facilities. House Comm. on Science and Technology,
"The Extent and Impact of Mercury Releases and Other Pollutants at the De-
partment of Energy's Oak Ridge Complex at Oak Ridge, Tennessee," H.R. Rep.
558, 98th Cong., 1st Sess.
13 In fact, DOE has recently issued an internal order incorporating many ele-
ments of the EPA RCRA regulations. DOE Order 5480.2 (Dec. 13, 1982).
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March 1, 1984
SUBJECT: Legal Issues Concerning Incineration of Hazardous
Wastes at Sea
The Honorable Solomon P. Ortiz
House of Representatives
1524 Longworth House Office Building
Washington, D.C. 20515
Dear Congressman Ortiz:
In your December 20, 1983, letter to Jack Ravan, Assistant Ad-
ministrator for Water, U.S. Environmental Protection Agency,
you posed a number of legal, technical, and policy questions
concerning the incineration of hazardous wastes at sea. The
Agency has previously provided a response to the technical and
policy questions. I appreciate the opportunity to respond to
many of the legal questions you posed. To the extent your
legal questions involve statutes or issues which are beyond the
Agency's area of expertise, I have arranged for the Department
of Justice to provide a response that addresses those issues.
The Justice Department will be responding in whole or part to
questions 2, 3, 4, 5, 7, 11, 12, 13, and 14 set out in the at-
tachment to your December 20, 1983, letter.
Question 1
"Under 42 U.S.C. sections 9601 ef seq. (hereinafter cited as [the
Comprehensive Environmental Response, Compensation, and Li-
ability Act of 1980] CERCLA in some places), would the vessel
owner be liable for at most a total of $5 million for both
cleanup costs and damages for injury to natural resources?"
Response
The answer to this question turns on whether an ocean incin-
eration ship would be considered a "facility" or a "vessel"
under CERCLA. As will be discussed in more detail below, ar-
guments could be made to support either interpretation.1
1 It should be noted that for purposes of other statues which apply to the reg-
ulation of incinerator ships, I understand that it is the U.S. Coast Guard's view
that these ships are clearly considered "vessels." These statues include:
§ 502 of Pub.L. 97-389 (46 App. U.S.C. § 883);
Continued
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Section 101(9) of CERCLA, 42 U.S.C. §9601(9), defines "fa-
cility" as:
(A) any building, structure, installation, equipment,
pipe or pipeline (including any pipe into a sewer
or publicly owned treatment works), well, pit,
pond, lagoon, impoundment ditch, landfill, storage
container, motor vehicle, rolling stock, or aircraft,
or (B) any site or area where a hazardous sub-
stance has been deposited, stored, disposed of, or
placed, or otherwise come to be located; but does
not include . . . any vessel. (Emphasis added.)
This definition is a very broad one. Clearly, an incineration
ship that is built and operated for the purpose of waste dis-
posal and treatment would constitute a "facility" unless it is
considered to be a "vessel." The term "vessel" is defined in
§ 101(28) of CERCLA, 42 U.S.C. § 9601(28), as:
every description of watercraft or other artificial
contrivance used, or capable of being used, as a
means of transportation on water.
In examining whether an ocean incineration ship is consid-
ered either a "facility" or a "vessel" under CERCLA, two
tenets of statutory interpretation must be considered. The first
is that a statute should be interpreted in accordance with a lit-
eral reading of its provisions. The second is that a statute
should be interpreted in a manner that best effectuates con-
gressional intent.
Title I of the Marine Protection, Research and Sanctuaries Act
(33 U.S.C. § 1401 et set;.);
Intervention of the High Seas Act (33 U.S.C. § 1471);
Port and Waterways Safety Act (33 U.S.C. §1221 et seq.);
Tank Vessel Act (46 U.S.C. § 3701 et seq.);
The Act to Prevent Pollution From Ships (33 U.S.C. §1901 et
seq.);
International Navigation Rules Act (33 U.S.C. § 1601 et seq.); and
Inland Navigational Rules Act (33 U.S.C. § 2001 et seq.).
However, even though the definition of the term "vessel" which is applica-
ble to those statutes is similar to the definition of "vessel" under CERCLA, for
the reasons discussed in this letter, there are arguments that these ships are
more properly considered "facilities" for purposes of CERCLA liability.
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Under a literal reading of CERCLA, ocean incineration ships
might well be considered "vessels." They clearly are "water-
craft" that are "capable of being used, as a means of transpor-
tation." However, this approach does not specifically consider
the special nature of ocean incineration ships and the overall
purpose of the liability scheme established by CERCLA. These
factors, which are discussed below, suggest that it may be
more appropriate to consider ocean incineration ships to be
"facilities" for purposes of CERCLA.
There are three major factors on which a court could base a
determination that ocean incineration ships are considered "fa-
cilities" rather than "vessels" under CERCLA. The first is that
the primary purpose of ocean incineration ships is to destroy
wastes rather than merely to transport them. CERCLA's defini-
tion of the term "vessel" does require that a watercraft have
some nexus with transportation. While ocean incineration ships
are "capable of being used, as a means of transportation," that
is certainly not their primary and intended use. Second, if
ocean incineration ships are "vessels" for purposes of CERCLA,
the owner would be subject to significantly lower limits of li-
ability than the owner of a land-based incinerator. Owners of
land-based incinerators are liable for all costs incurred by the
Government in responding to a spill (plus $50 million in natu-
ral resources damages) whereas owners of "vessels" are liable
under CERCLA for only up to the greater of $300 per gross
ton or $5 million for response costs and natural resource
damage combined. (This issue is discussed in greater detail
below.) Legislative history does not reveal any intent to distin-
guish between land-based and ocean incinerators. Finally, if
ocean incinerator ships are considered "vessels" under CERCLA,
it is unclear whether the persons who arranged for disposal or
treatment of wastes on the ship from which there is a spill
would be liable under CERCLA § 107(a)(3), 42 U.S.C.
§ 9607(a)(3) for the costs of responding to the spill and any
natural resource damages. Again, those persons would be liable
under CERCLA § 107(a)(3) with respect to spills from land-
based incinerators. There is nothing in CERCLA's legislative
history that suggests that Congress intended to create such a
distinction.
Returning to your original question, if an incinerator ship is
considered to be a "facility" under CERCLA the limitations of
liability established in CERCLA § 107(c)(l)(D), 42 U.S.C.
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§ 9607(c)(l)(D), would apply. Under that provision, the owner
is liable for all response costs incurred as a result of a release
of hazardous substances from the facility, plus up to $50 mil-
lion for any natural resource damage. Thus, the ship owner
could be held liable for the full costs and damages set forth in
the hypothetical question in your letter.
If an incinerator ship is considered to be a "vessel,"2 the
limitations of liability established by CERCLA § 107(c)(l)(A),
42 U.S.C. § 9607(c)(l)(A), would apply. Under that provision,
the owner's liability under CERCLA § 107 is limited to $5 mil-
lion for response costs and natural resources damage combined.
Therefore, under the hypothetical you posed, the owner's li-
ability under CERCLA § 107 would be limited to $5 million
unless the owner failed or refused to provide reasonable coop-
eration or assistance requested by a responsible official. See
CERCLA § 107(c)(2)(B), 42 U.S.C. § 9607(c)(2)(B).
Whether the owner's liability under CERCLA § 107 is based
upon a "vessel" or a "facility," that liability would not be af-
fected by the Limitation of Shipowners Liability Act (Act of
March 3, 1851), 46 U.S.C. §183 et seq. (LOSLA). See CERCLA
§ 107(h), 42 U.S.C. § 9607(h).
Question 2
"Under what sections of what other federal statutes, if any,
could additional cleanup costs be recovered against the vessel
owner? As to any cited statutes, discuss the possible applicabil-
ity of the Act of March 3, 1851 (46 U.S.C. 183ff) (hereinafter
cited as the Limitation of Shipowner's Liability Act or
LOSLA)."
Response
In responding to questions 2 and 3, I will address the applica-
bility of the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq.,
and the Resource Conservation and Recovery Act (RCRA) 42
U.S.C. § 6901 et seq. The Department of Justice will be address-
ing the applicability of other Federal statutes.
z For purposes of this and other responses in this letter, I have assumed that
the vessel in your hypothetical question is subject to U.S. jurisdiction. I have
not addressed whether the Vulcanus I and II are, in fact, "otherwise subject to
U.S. jurisdiction." If you would like me to address that issue, I will be glad to
do so.
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A. CWA
Under CWA §311 U.S.C. §1321, the owner of "vessels" and
"off-shore facilities" from which hazardous substances are re-
leased in reportable quantities is liable to the United States for
the actual costs incurred in responding to that release. These
costs may include governmental costs incurred in restoring or
replacing natural resources damaged or destroyed as a result of
the release. CWA §311(f)(4), 33 U.S.C. § 1321(f)(4). As in the
case of CERCLA, an owner is not liable if he can demonstrate
that the release was caused solely by an act of war, an act of
God, or the act or negligence of third parties. CWA § 311(f),
33 U.S.C. § 1321(f).
CWA §311(a)(3), 33 U.S.C. § 1321(a)(3), defines the term
"vessel" in a fashion nearly identical to CERCLA:
vessel means every description of watercraft or
other artificial contrivance used, or capable of
being used, as a means of transportation on water
other than a public vessel.
CWA §311(a)(ll), 33 U.S.C. § 1321(a)(ll), defines "off-shore
facility" as follows:
off-shore facility means any facility of any kind
located in, on, or under, any of the navigable
waters of the United States, and any facility of
any kind which is subject to the jurisdiction of
the United States and is located in, on, or under
any other waters, other than a vessel or public
vessel.
The arguments relating to whether an ocean incineration ship
should be considered either a "vessel" or an "off-shore facili-
ty" under the liability provisions of CWA § 3113 are very similar to
those concerning CERCLA set out in response to your first question.
If an incinerator ship is considered a "vessel" under the liability
provisions of CWA § 311, the owner's liability for the actual costs of
cleanup is limited to the greater of $150 per gross ton of the vessel or
$250,000 (for vessels carrying hazardous substances as cargo). CWA
§311(f)(l), 33 U.S.C. §1321(f)(l).
If an incinerator ship is considered an "off-shore facility"
under the liability provisions of CWA § 311, the owner's liabil-
sThe U.S. Coast Guard regulations under CWA § 311(j), 33 U.S.C. § 1321(j),
apply to incinerator ships as if they were "vessels."
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ity for the actual costs of cleanup is limited to $50 million.4
CWA § 311(f)(3), 33 U.S.C. § 1321(f)(3).
The effect of LOSLA, 46 U.S.C. §183, upon a ship owner's
liability under CWA §311, 33 U.S.C. §1321, will be addressed
by the Department of Justice in its response.
B. RCRA
RCRA §7003, 42 U.S.C. §9673, may provide authority to re-
cover cleanup costs from a ship owner. RCRA § 7003 provides
in relevant part that:
[notwithstanding any other provision of this Act,
upon receipt of evidence that the . . . disposal of
any . . . hazardous waste may present an immedi-
ate and substantial endangerment to health or the
environment, the Administrator may bring suit
... to immediately [enjoin the disposal] or to
take such other action as may be necessary.
RCRA §1004(3), 42 U.S.C. §6903(3), defines the term "dispos-
al" to include "spilling" any solid or hazardous wastes "into or
on any . . . water." (Emphasis added.) While the term "water"
is not defined in RCRA, it is reasonable to conclude that
RCRA § 7003 applies to any spill of hazardous wastes into
ocean waters over which the United States asserts jurisdiction.
Regarding EPA's authority to seek the recovery of cleanup
costs under RCRA § 7003, at least one court has interpreted
the phrase in that section "to take other action as may be nec-
essary" to authorize the reimbursement of environmental test-
ing and sampling costs associated with cleanup which are in-
curred by the Government. United States v. Solvents Recovery Service,
Inc., 496 F. Supp. 1127, 1142-43 (D. Conn. 1980). However, it
is not possible to predict accurately whether courts will extend
the reasoning of the Solvents Recovery case to permit recovery of
actual cleanup costs.
The effect of LOSLA, 46 U.S.C. §183, upon a ship owner's
liability under RCRA §7003, 42 U.S.C. §6973, will be ad-
dressed by the Department of Justice in its response.
4 A court may determine that a ship owner's liability under CWA § 311(f) 33
U.S.C. § 1321(f), is simply a substitute for, rather than in addition to, liability
under CERCLA §107, 42 U.S.C. §9607. See CERCLA § 304(b), 42 U.S.C.
§ 9654(b).
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Question 3
"Under what sections of what other federal statutes, if any,
could additional damages for environmental injury be recovered
against the vessel owner? As to any cited statutes discuss the
possible applicability of LOSLA."
Response
As noted earlier, the Department of Justice will be addressing
the applicability of Federal statutes other than the CWA and
RCRA. It will also be addressing the applicability of LOSLA.
A. CWA
As noted in my response to Question 2, CWA §311, 33 U.S.C.
§ 1321, imposes liability for the costs incurred by the Federal
Government to restore or replace natural resources damaged or
destroyed as a result of a release of hazardous substances in
reportable quantities from a "vessel" or an "on-shore facility,"
as well as for the cleanup costs. The answer provided in re-
sponse to Question 2 regarding cleanup costs is equally appli-
cable to natural resource restoration or replacement costs in-
curred under CWA § 311.
B. RCRA
It is unclear whether RCRA §7003, 42 U.S.C. §6973, can be
read to provide for the recovery of environmental damages. Al-
though, as noted in the Solvents Recovery case supra, RCRA § 7003
"may be the basis for equitable relief other than an order
simply restraining the disposal of hazardous materials" (496 F.
Supp. at 1143), at least one court has cautioned that this pro-
vision should not be read to convert an equitable action into a
claim for damages. United States v. Price, 688 F.2d 204 (3rd Cir.
1982). In Price, the court drew a distinction between payments
which might be ordered to ensure that preventive measures are
taken and payments that are meant to be a form of damages.
The court noted that it is permissible to order payment of the
former costs pursuant to RCRA § 7003.
Question 4
"Under what sections of the federal statutes (including
CERCLA), if any, could the vessel owner be ordered to do ad-
ditional cleanup beyond $5 million worth? Please take into ac-
count, at a minimum, United States v. Burns, 512 F. Supp. 916
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(W.D. Pa. 1981), and 40 C.F.R. Part 264. Also, please discuss
the possible applicability of LOSLA."
Response
In responding to this question, I will address the applicability
of the CWA, CERCLA, and RCRA. The Department of Justice
will be addressing the applicability of other Federal statutes. It
will also be addressing the applicability of LOSLA.
A. CWA
CWA §311(e), 33 U.S.C. § 1321(e), authorizes the President to
seek, and an appropriate court to grant, relief whenever there
is imminent and substantial threat to the public health or wel-
fare of the United States because of an actual or threatened
discharge of hazardous substances into or upon the "navigable
waters" from an on-shore or off-shore "facility." As I under-
stand the hypothetical example on which your question is
based, the hazardous waste spill has occurred more than 3
miles from shore. The jurisdiction of CWA § 311(e), because it
is limited to spills "into or upon the navigable waters," is lim-
ited to 3 miles from shore. For that reason CWA § 311(e)
would not provide the Government with authority to order ad-
ditional cleanup in the hypothetical example.5
B. CERCLA
CERCLA §106(a), 42 U.S.C. §9606(a), authorizes the President
to seek a court order, or issue an administrative order, when-
ever there is an "imminent and substantial threat to the public
health or welfare of the environment" because of a release of
hazardous substances "from a facility." (Emphasis added.) There-
fore, the Government may seek or issue an order requiring a
cleanup under CERCLA § 106(a) only if the incinerator ship is
considered to be a "facility" under CERCLA; it cannot do so
with respect to "vessels." (Regarding the application of these
terms to your hypothetical question, see response to Ques-
tion 1.)
5 CWA § 504, 33 U.S.C. § 1364, authorizes the EPA Administrator to seek, and
an appropriate court to grant, relief whenever a pollution source is presenting
an imminent and substantial endangerment to the public health and welfare.
The hypothetical question in your letter does not provide sufficient facts to ac-
curately predict the applicability of this provision.
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Because the limitations on liability for releases from a "facil-
ity" established by CERCLA §107(c), 42 U.S.C. §9607(c), and
CWA §311(f)/ 33 U.S.C. §1321(f), are well above the costs
and damages set out in your hypothetical, the Burns decision
would not affect the Government's authority to secure a neces-
sary cleanup.6
The Department of Justice will be addressing the applicabil-
ity of LOSLA to CERCLA § 106(a).
C. RCRA
As noted previously, RCRA §7003, 42 U.S.C. §6973, may
apply to spills of hazardous wastes on or into ocean waters
within the United States' jurisdiction. Moreover, the legislative
history of this section as well as recent case law confirm that
an order issued pursuant to RCRA § 7003 may require cleanup
of hazardous wastes. RCRA § 7003 imposes no monetary limit
on the cleanup that may be ordered.
The legislative history of RCRA § 7003 provides that:
The section's broad authority to take such other
actions as may be necessary includes both short-
and long-term injunctive relief ranging from the
construction of dikes to the adoption of certain
treatment technologies, upgrading of disposal fa-
cilities, and removal and incineration.
Report on Hazardous Waste Disposal by the Subcommittee on Oversight and
Investigations of the House Committee on Interstate and Foreign Commerce,
H.R. Committee Print No. 96-IFC 31, 96th Cong., 1st Sess. 32
(1979) (hereafter "Eckhardt Report"). After reviewing the legis-
lative history of this section, the Third Circuit in United States
v. Price, supra, concluded that "[tjhere is no doubt . . . that
[§ 7003] authorizes the clean-up of a site, even a dormant one,
if that action is necessary to abate a present threat to the
public health or the environment." 688 F.2d at 214. See also
United States v. Vertac Chemical Corp., 289 F. Supp. 870, 888-89
(E.D. Ark. 1980) (granting preliminary injunctive relief under
§ 7003 including the covering of soil containing hazardous
chemicals with a clay topping to prevent penetration by surface
waters and the construction of an underground clay barrier to
8 No cases have arisen under CERCLA § 106(a) that address whether a court
may order the restoration of natural resources if there is no imminent and
substantial endangerment to public health, welfare, or the environment. It is
unclear whether a court would grant that relief.
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prevent migration of buried chemical wastes); United States v.
Midwest Solvent Recovery, Inc., 484 F. Supp. 138, 138 (N.D. Ind.
1980) (granting preliminary injunctive relief including removal
of containers and chemical residues). Accordingly, there would
appear to be some foundation for the argument that RCRA
§ 7003 can be used to require cleanup of a spill from an ocean
incineration vessel without consideration of a monetary limit.
The Agency has not endorsed the interpretation of RCRA
§1006(b), 42 U.S.C.A. § 9605(b), set forth in United States v.
Burns, 512 F. Supp. 916 (W.D. Pa. 1981). Prominent among the
flaws in the court's reasoning is its failure to address the fact
that RCRA § 7003's authorities operate "[notwithstanding any
other provision of [the] Act," including RCRA § 1006.
With respect to the applicability of RCRA Part 264 stand-
ards, under 40 C.F.R. § 270.60(a), an ocean incineration vessel
which is operating under a permit issued under the Marine
Protection Research and Sanctuaries Act (MPRSA) is not re-
quired to obtain an individual RCRA permit if it complies
with its MPRSA permit, obtains a RCRA identification number
(§ 264.11), complies with the RCRA manifest system (§§ 264.71,
264.72, and 264.76), maintains an operating record (§§ 264.73(a)
and (b)(l)), and submits a biennial report (§ 264.75). These four
requirements are the only Part 264 standards that apply to an
ocean incineration vessel which qualifies for the § 270.60(a) ex-
emption. See 40 C.F.R. § 264.1(c).
Question 6
"Would a generator of the spilled wastes be exposed to liabil-
ity under 42 U.S.C. §9607 [CERCLA Section 107]?"
Response
If the incinerator ship is considered to be a "facility" under
CERCLA, any person who "arranged for disposal or treatment"
of the spilled wastes by the ship (e.g., generators) would be
liable for any spills from the ship under CERCLA § 107(a)(3),
42 U.S.C. §9607(a)(3). Of course, the generators would be enti-
tled to assert any of the defenses provided under CERCLA
§ 107(b) 42 U.S.C. § 9607(b).
On the other hand, CERCLA §107 does not expressly
impose liability upon persons who "arranged for disposal or
treatment" of hazardous substances by a "vessel." Therefore
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there is no clear basis for imposing liability under CERCLA
§ 107 upon generators of hazardous wastes which are spilled
from vessels.
Question 7
"Would a generator of the spilled wastes be subject to a clean-
up obligation under any other section of CERCLA or under
any other federal statute or under the federal common law? If
42 U.S.C. Section 6973 [RCRA Section 7003] is cited, please
discuss the Burns case if it is applicable, and please discuss
any cases or other authorities indicating whether the term
'person contributing to the alleged disposal' would include a
generator."
Response
In responding to this question, I will address the applicability
of the CWA, CERCLA, and RCRA. The Department of Justice
will be addressing the applicability of other Federal statutes.
A. CWA
As discussed in response to Question 4, the jurisdiction of
CWA § 311(e), 33 U.S.C. § 1321(e)—even if it were to apply to
"generators"—does not extend beyond the 3-mile limit and
cannot be relied upon as authority to impose liability in the
hypothetical example you posed.7 CWA § 311(f), 33 U.S.C.
§ 1321(f), imposes liability for cleanup costs only upon the
"owner or operator" of the "vessel" or "facility" that spilled
the hazardous substances.
B. RCRA
Considerable controversy still surrounds the question of wheth-
er a generator is considered to be a "person contributing to
such handling, storage, treatment, transportation or disposal"
under RCRA §7003, 42 U.S.C. §6973. The Agency continues
to believe that RCRA § 7003's authorities should be read to
encompass generators. This position is consistent with the leg-
islative history providing that:
7 As noted in response to Question 4, the applicability of CWA § 504, 33
U.S.C. § 1364, to the hypothetical question you posed cannot be accurately
predicted.
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a company that generates hazardous waste would
be someone contributing to an endangerment
under § 7003, even where someone else deposited
the waste in an improper disposal site (similar to
strict liability under common law).
Eckhardt Report at 31.
However, recent cases have ruled against the Agency on this
question with respect to past non-negligent offsite generators.8
United States v. Wade, 546 F. Supp. 785 E.D. Pa. 1982). Accord,
United States v. Northeastern Pharmaceutical and Chemical Co., [NE-
PACCO], No. 80-5066-CV-4 (W.D. Mo., filed January 31,
1984). In support of its decision, the court in NEPACCO cited
the following language from the Senate Report on the 1980
amendments to RCRA:
[SJection 7003 should not be construed solely with
respect to the common law. Some terms and con-
cepts, such as person 'contributing to' disposal re-
sulting in a substantial endangerment, are meant
to be more liberal than their common law coun-
terparts. For example, a company that generated
hazardous waste might be someone contributing to
an endangerment under section 7003 even where
someone else deposited the waste in an improper
disposal site (similar to strict liability under
common law), where the generator had knowledge of the
illicit disposal or failed to exercise due care in selecting or
instructing the entity actually conducting the disposal.
Slip op. at 19, citing S. Rep. 172, 96th Cong., 2d Sess. 5
(1979), reprinted in U.S. Code Cong. & Admin. News at 5019,
5023 (1980). (Emphasis added.)
It is not clear whether in light of this contrary judicial
precedent and conflicting legislative history the Agency will be
able to prevail in its interpretation of generator liability under
RCRA § 7003.
Regarding the applicability of Burns to RCRA § 7003, please
refer to the response to Question 5.
8 No court, however, has addressed the liability of negligent generators under
RCRA § 7003.
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C. CERCLA
If an incineration ship is considered a "facility" under
CERCLA, a generator may be subject to an administrative or
court order issued under CERCLA § 106(a), 42 U.S.C. § 6906(a).
This provision does not impose any explicit limitation on the
nature of the party who may be subject to an abatement order
in the event of a release or a threat of release. Several courts
have concluded that the same persons who would be liable
under CERCLA § 107(a), 42 U.S.C. §9607(a), would also be
liable under CERCLA § 106(a). United States v. NEPACCO, supra
(slip op. at 23); United States v. Reilly Tar and Chemical Corp., 546
F. Supp. 1100, 1112-13 (D. Minn. 1982); United States v. Outboard
Marine Corp., 54, 56 F. Supp. 556 (N.D. 111. 1982).
If an incinerator ship is a "vessel" under CERCLA, there is
no provision under CERCLA that would authorize EPA to re-
quire a generator to clean up spills from the ship.
Regarding the applicability of Burns to CERCLA § 106(a),
please refer to the response to Question 5.
Question 8
"Changing the hypothetical, assume the spill occurred farther
than 200 miles from shore (i.e., beyond the outer boundary of
the FCZ [Fishery Conservation Zone]). Would CERCLA cover
the event? Please compare the sections of the federal Clean
Water Act bearing on the geographical reach of the oil spill
provisions of the Act with the analogous sections of CERCLA
and take into account, the definitions of release and environ-
ment in CERCLA. If CERCLA would not cover the event,
would anything inhibit the applicability of LOSLA as a defense
against recovery under any legal theory? (The change in the
hypothetical is for purposes of question 8 only.)"
Response
Under some circumstances CERCLA would authorize the Gov-
ernment to respond to a spill that originated further than 200
miles from shore.
Under CERCLA § 104(a)(l), 42 U.S.C. §9604(a)(l), the Presi-
dent is authorized to respond whenever a hazardous substance
"is released or there is a threat of such a release into the en-
vironment." "Environment" is defined in CERCLA §101(8), 42
U.S.C. § 9601(8), to include navigable waters, waters of the
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contiguous zone, and "ocean waters of which the natural re-
sources are under the exclusive management authority of the
United States under the Fishery Conservation and Management
Act [FCMA]." The quoted language extends the term "environ-
ment" out to at least the limits of the fishery conservation
zone, which is 200 miles.9 In the event that a hazardous sub-
stance that was spilled outside of the 200-mile limit migrated
to within the limit, there clearly would be a "release" of haz-
ardous substances into the "environment" for purposes of
CERCLA which would authorize Government response.10
In general, the jurisdictional limits under CWA § 311, 33
U.S.C. §1321, are comparable in scope to CERCLA's.11 CWA
§311(b)(3), 33 U.S.C. §1321(b)(3), prohibits discharges12 of oil
and hazardous substances in quantities that may be harmful:
into or upon the navigable waters of the United
States, adjoining shorelines, or unto or upon the
waters of the contiguous zone ... or which may
affect natural resources belonging to, appertaining
to, or under the exclusive management authority
of the United States (including resources under the
Magnuson Fishery Conservation and Management
Act) . . .
Therefore, jurisdiction under CWA § 311 also extends out to
200 miles from shore.
9 However, the definition of "environment" in CERCLA is not necessarily lim-
ited to the 200-mile limit. The FCMA also provides that the United States
shall exercise exclusive fishery management authority over all anadromous spe-
cies (i.e., species that spawn in fresh or estuarine waters of the U.S.) through-
out their migratory zone, and over all continental shelf fishery resources (as
defined in the FCMA). 116 U.S.C. § 1812. This might extend CERCLA jurisdic-
tion beyond 200 miles from shore.
10 There may be other factual situations involving spills that originate beyond
the 200-mile limit in which the Government would be authorized to respond.
11 Jurisdiction under CWA §311, 33 U.S.C. §1321, does not extend out to the
200-mile limit in all cases. For example, its jurisdiction is limited to "navigable
waters" (i.e., the 3-mile limit) for purposes of § 311(d), 33 U.S.C. § 1321(d)
(marine disaster discharges) and § 311(e), 33 U.S.C. § 1321(e) (imminent hazard
authority).
12 The term "discharge" is defined in CWA §311(a)(2), 33 U.S.C. § 1321(a)(2),
as "including . . . any spilling, leaking, pumping, pouring, emptying or dumping
. . ." (Emphasis added.)
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Question 9
"Within the meaning of 42 U.S.C. §9607(h), [Section 107(h) of
CERCLA], what liability, if any, is provided under Section
9614 [§ 114 of CERCLA]? How is 'provided under' likely to be
interpreted?"
Response
I believe that a court would likely interpret the "provided
under Section 114" language of CERCLA §107(h), 42 U.S.C.
§9607(h), to refer to CERCLA § 114(a), 42 U.S.C. §9614(a),
which provides:
Nothing in this Act shall be construed or inter-
preted as preempting any State from imposing any
additional liability or requirements with respect to
release of hazardous substances within such State.
Under this interpretation, the limitations on ship owner's li-
ability established by LOSLA would not apply with respect to
any State action of the type cited in CERCLA § 114(a). It
should be noted that CERCLA § 114(a) simply preserves the
rights of a State to impose additional liability with respect to
releases of hazardous substances within the State; it does not
create such State causes of action.
I am not aware of any legislative history that addresses
whether Congress intended to remove LOSLA's limitations from
State liability requirements. However, given the clear language
of CERCLA §107(h) and 114(a), it is my opinion that
LOSLA's limitations have been removed for State liability relat-
ing to the release of hazardous substances within the State.
Question 10
"Does 42 U.S.C. Section 9614 [CERCLA §114] refer to causes
of action in favor of private parties (for example, shrimpers or
hotel owners) as well as causes of action in favor of States?"
Response
I understand your question to be whether CERCLA § 114(a), 42
U.S.C. § 9614(a), is intended to preempt private causes of
action for damages resulting from spills of hazardous sub-
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stances that arise under State law. I do not believe that that
provision was intended to preempt such actions.
Sincerely,
A. James Barnes
General Counsel
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WATER
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(Approx.) January 31, 1980
MEMORANDUM
SUBJECT: Jurisdiction of Sections 402 and 404 of the
Clean Water Act Over Discharges of Solid
Waste in Wetlands
FROM: Michele Corash
General Counsel
TO: Jeffrey G. Miller
Acting Assistant Administrator
for Enforcement
You have asked us for a legal opinion concerning the authority
of the Administrator and the Corps of Engineers in applying
Clean Water Act programs to the disposal of solid waste in
waters of the United States. We are providing the following
response to your request.
Question
Who has the ultimate authority to determine whether a dis-
charge of solid waste in waters of the United States requires a
National Pollutant Discharge Elimination System (NPDES)
permit or a § 404 permit: the Administrator of the Environ-
mental Protection Agency (EPA) or the Secretary of the Army?
Answer
In case of disagreement between the Administrator and the
Secretary, the Administrator has ultimate authority to determine
whether a discharge of solid waste in waters of the United
States requires an NPDES permit or a § 404 permit.
Discussion
In furtherance of the Clean Water Act's (CWA) goal of restor-
ing and maintaining the chemical, physical, and biological in-
tegrity of the Nation's waters, § 301 forbids the discharge of
any pollutant by any person except as in compliance with
§§301, 302, 306, 307, 318, 402, and 404. Section 402(a)(l) pro-
vides, "Except as provided in sections 318 and 404 of this Act,
the Administrator may, after opportunity for public hearing,
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issue a permit for the discharge of any pollutant, or combina-
tion of pollutants, notwithstanding section 301(a), upon condi-
tion that such discharge will meet ... all applicable require-
ments of sections 301, 302, 306, 307, 308, and 403 of this
Act ... ." The listed sections include the criteria for deter-
mining appropriate permit terms and conditions. Section 404
allows the Secretary of the Army, acting through the Corps of
Engineers, to issue permits for the discharge of "dredged or fill
material," through application of the § 404(b)(l) guidelines,
which are prepared by EPA in consultation with the Corps. By
following the requirements of § 404(c), EPA may prevent the
discharge of dredged or fill material into certain sites.
The CWA does not define fill material. The legislative histo-
ry does not explain inclusion of "fill" in § 404 or discuss what
the term means. The most recent regulatory definition appears
in the Corps' regulations at 33 C.F.R. 323.2(m) 42 Fed. Reg.
37145, July 19, 1977. That section states, "The term 'fill mate-
rial' means any material used for the primary purpose of re-
placing an aquatic area with dry land or of changing the
bottom elevation of a water body. The term does not include any
pollutant discharged into the water primarily to dispose of waste, as that
activity is regulated under section 402 of the Federal Water Pollution Con-
trol Act Amendments of 1972." (Emphasis added.) The regulations
are silent as to whether EPA or the Corps should decide the
primary purpose of a discharge of waste that replaces an
aquatic area with dry land or changes the bottom elevation of
a water body. Such decision necessarily determines whether the
§ 402 or the § 404 permit program requirements will apply to
the discharge in question.1
1 It is clear from the statutory scheme that any discharge of a pollutant (as
defined in § 502(12)) not subject to § 404 is subject to § 402. It is also clear
from § 402(a) that a particular discharge must have either a § 402 or a § 404
permit, but not both. (Of course, a particular activity may consist of discharges
needing § 404 permits and discharges needing § 402 permits.)
The close connection between §§ 402 and 404 is also shown by language in
§§ 404(f) and 404(r), the exemptions added by the 1977 amendments. Each of
these provisions states that certain discharges of dredged and fill material are
not subject to regulation under either section § 404 or § 402. This suggests
that, in Congress' view, providing only a § 404 exemption for those discharges
was not enough, since EPA would still be able to step in and require a § 402
permit.
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The primary purpose test was added to the definition of fill
material during the Corps' revision to its regulations in 1977.
The 1977 preamble discussion explains that:
During the two years of experience with the sec-
tion 404 program, several industrial and municipal
discharges of solid waste materials have been
brought to our attention which technically fit
within our definition of 'fill material' but which
were intended to be regulated under the NPDES
program .... The Corps and the Environmental
Protection Agency feel that the initial decision re-
lating to this type of discharge should be through
the NPDES program. We have therefore modified
our definition of fill material to exclude those pol-
lutants that are discharged into water primarily to
dispose of waste.
42 Fed. Reg. 37130.2
The primary purpose test was therefore added to recognize
that particular discharges that would be more appropriately
regulated under the EPA NPDES program should be so han-
dled. It would be anomalous if EPA, which has the ultimate
interest in the NPDES program, were not able to decide when
that interest was present. EPA is better equipped than the
Corps to know when a discharge of waste can be effectively
regulated under the NPDES program. The Federal NPDES pro-
gram is distinctly an EPA program; the Corps plays no role in
developing or applying effluent limitations. While a decision
that a discharge of waste should be regulated under § 402 is to
some extent also a judgment that it should not be regulated
under § 404, that does not undercut reliance on EPA's exper-
tise. The § 404 program is a hybrid one, in which EPA and the
Corps both play a role. Part of EPA's responsibility is to de-
velop the guidelines which are the § 404 counterpart of efflu-
2 The previous definition defined fill material as "any pollutant used to create
fill in the traditional sense of replacing an aquatic area with dry land or of
changing the bottom elevation of a water body for any purpose . . . ." 33
C.F.R. § 209.120(d)(6), July 25, 1975, 40 Fed. Reg. 31325. This definition was
incorporated by reference in EPA's § 404(b)(l) guidelines, 40 C.F.R. § 230.2(b),
Sept. 5, 1975.
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ent guidelines.3 Thus, EPA is in a position to judge the appro-
priateness of both §404 and §402 to a particular discharge of
waste.
This interpretation best accords with the statutory scheme.
Under § 101(d), the Administrator is responsible for administer-
ing the CWA, except as explicitly provided otherwise. Because
the primary purpose decision is effectively a decision as to
which program applies to a discharge, and because the latter
decision has not explicitly been assigned to the Corps, it fol-
lows that it is the Administrator's prerogative to make it.
A recent Opinion of the Attorney General concerning the
Administrator's authority to determine jurisdiction under § 404
supports our interpretation. (Attorney General Civiletti to Clif-
ford Alexander, Sept. 5, 1979.) Noting the Administrator role
under § 101(d), the dual role of EPA and the Corps under
§ 404, and that a jurisdictional decision by the Corps would
necessarily affect parts of the program administered by EPA,
the Attorney General concluded that EPA, not the Corps, had
the authority to determine the jurisdictional reach of the
waters of the United States. While that opinion involved a
term, "waters of the United States," which appears in a general
provision of the Act (§ 502(7)) and the term "fill" appears only
in § 404 (and related parts of § 208), in each case the interpre-
tation of the term clearly impacts other programs under the
Act. In fact, in the instant situation an interpretation by the
Corps could conceivably even affect the applicability of the
Resource Conservation and Recovery Act (RCRA), which is
also an "EPA" statute. RCRA excludes from "solid waste"
those "industrial discharges that are point sources subject to
permits under § 402 of the Federal Water Pollution Control
Act." Thus, where industrial wastes from a point source meet
the basic definition of a fill, the primary purpose test deter-
mines the applicability not only of § 402, but also of RCRA.
Where determinations that affect the applicability of an EPA
statute are not clearly committed by Congress to another
agency, EPA should make these determinations.
While the regulation in question was one written by the
Corps of Engineers and while the courts generally give defer-
3 EPA also approves and oversees State 404 programs, approves best manage-
ment practices (BMPs) that may serve in lieu of permits (§ 208(b)(4)(B)), has
the authority to veto discharge sites, and shares enforcement authority.
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ence to an agency in interpreting its own regulations, that
principle does not require that the Corps determine the pri-
mary purpose of a discharge of waste. First, what is involved
here is not so much the interpretation of a regulation as it is
the determination of facts to which the regulation will subse-
quently be applied. Facts relating to waste disposal are indispu-
tably within EPA's area of expertise, because of EPA's respon-
sibilities under RCRA as well as the CWA. Furthermore, any
notion that an agency that adopts a regulatory definition
should interpret it is undercut in the present instance, because
the definition was developed after discussions with EPA, to
meet an interest of EPA's. (See preamble, quoted above.) Final-
ly, although at present the definition in question appears only
in the Corps' regulation, this is only a fortuity. EPA has pro-
posed two sets of regulations, the Consolidated Permit Regula-
tions and the §404(b)(l) guidelines, each of which contains the
same definition of fill material.4 If the final regulations retain
these provisions, there will be two agencies with the same def-
inition, making a nullity of any argument that the Corps has a
unique proprietary interest in the definition. If EPA adopts a
different definition, it will supersede the one at issue here.
The major argument to be made in support of the Corps de-
termining the primary purpose of waste discharges is the exist-
ence of a separate dredge and fill program carved out of the
NPDES program; one might argue that depriving the Corps of
the authority to decide what is covered by this program under-
cuts Congress' recognition of the Corps' special role. However,
the history of the Act does not lend much support to this ar-
gument. H.R. 11986 authorized the Secretary of the Army to
continue to issue permits for dredged and fill material, after
consultation with EPA. S. 2770, as amended, allowed the Secre-
tary to recommend discharge sites for dredged material alone,
subject to EPA's approval. The conference committee allowed
the Corps to issue permits for dredged and fill material, using
EPA guidelines and subject to an EPA veto. In explaining the
conference committee version, Senator Muskie stated:
The Conferees were uniquely aware of the process
by which the dredge and fill permits are presently
handled and did not wish to create a burdensome
* Section 501(a) states, "The Administrator is authorized to prescribe such regu-
lations as are necessary to cany out his functions under this Act."
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bureaucracy in light of the fact that a system to
issue permits already existed. At the same time,
the Committee did not believe there could be any
justification for permitting the Secretary of the
Army to make the determination as to the envi-
ronmental implications of either the site to be se-
lected or the specific spoil to be disposed of in a
site.
1 Legislative History of the Water Pollution Control Act
Amendments of 1972, at 177.
Thus, Congress retained a separate program for dredged and
fill material for administrative reasons but made it clear that
such administrative interests did not override the Administra-
tor's responsibility for environmental concerns. While Congress
clearly did not anticipate the specific question addressed by
this opinion, these general views concerning the § 404 program
are consistent with my conclusion that the Administrator may
properly determine the primary purpose test.
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September 4, 1980
MEMORANDUM
SUBJECT: Applicability of the Part 25 "Public Participation"
Regulations to the Approval of Variances from
Water Quality Standards
FROM: Michele Beigel Corash
General Counsel
James N. Smith
Associate Assistant Administrator
TO: Ronald P. Dubois
Region X
Regional Administrator
You have requested a joint opinion on the applicability of the
Environmental Protection Agency's (EPA's) "public participa-
tion" regulations (40 C.F.R. Part 25) to the issuance by the
State of Washington of "a one time permit for application of
an herbicide to the waters of Lake Washington." hi issuing
this permit, you note that the State "issued a waiver from its
water quality standards to allow the degradation accompanying
the application." You have specifically requested an opinion as
to whether the grant by EPA of planning funds brings this ac-
tivity within the scope of 40 C.F.R. 25.2(a)(5). This section ex-
tends the coverage of Part 25 to the activities supported with
EPA financial assistance.
Our resolution of this matter is based on the provisions of
the Clean Water Act and 40 C.F.R. 25.2(a)(l), and we need not
address the scope of § 25.2(a)(5). Nor do we address whether
the application of the herbicide would constitute a violation of
water quality standards in the absence of a variance.
Issues
1. Are variances from water quality standards subject to the
requirement of public participation under the Clean Water Act?
2. If public participation is required in the approval by a State
of variances from water quality standards, do the provisions of
Part 25 apply?
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Conclusion
Variances from water quality standards constitute revisions to
those standards, and as such are subject to the requirement of
public participation. 40 C.F.R. Part 25 provides minimum
guidelines for public participation in this process.
Discussion
The Clean Water Act establishes a requirement that public par-
ticipation be allowed in any revision by the State of a water
quality standard. Section 101(e) broadly requires public partici-
pation in all programs established under the Act. This section
states that:
[pjublic participation in the development, revision,
and enforcement of any regulation, standard, efflu-
ent limitation, plan, or program established by the
Administrator or any State under this Act shall be
provided for, encouraged, and assisted by the Ad-
ministrator and the States.
The implementation and revision of water quality standards are
subject to this general requirement.
Section 303(c) establishes a specific requirement for public
participation in the process of revision of water quality stand-
ards by States. This section provides that States shall "from
time to time . . . hold public hearings for the purpose of re-
viewing applicable water quality standards and, as appropriate,
modifying and adopting standards." This section not only
specifies that States must periodically review and revise water
quality standards, but also, together with § 101(e), imposes an
obligation to provide public participation whenever such revi-
sions are undertaken. This requirement is codified in water
quality standards regulations. 40 C.F.R. 35.1550(a).
Variances or short-term modifications of water quality stand-
ards are subject to this requirement of public participation, hi
the Opinion of the General Counsel No. 58, the General
Counsel concluded that variances from water quality standards
constituted revisions to those standards and were subject to the
substantive requirements applicable to the downgrading of the
designated use. That opinion went on to state that:
(S)ince State variance proceedings involve revisions
of water quality standards, they must be subjected
to public notice, opportunity for comment, and
public hearing. (See section 303(c)(l) and 40 C.F.R.
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130.17(a) [now 35.550(a)J.) The public notice
should contain a clear description of the impact of
the variance upon achieving water quality stand-
ards in the affected stream segment.
Thus, the Clean Water Act and the water quality standards
regulations mandate public participation in State approval of
variances to water quality standards.
Provisions of 40 C.F.R. Part 25 define minimum elements for
public participation under the Clean Water Act. The applicabil-
ity of this regulation to the broad scope of actions involved in
the State water quality standards program is not clear, and
future revisions of the water quality standards regulations
should clarify this relationship.
However, we conclude that Part 25 does apply to the issu-
ance of variances from water quality standards. 40 C.F.R.
25.2(a)(l) provided that Part 25 applies to "State rulemaking
under the Clean Water Act ... ." Although most activities
specifically affecting one discharger, such as National Pollutant
Discharge Elimination System permit issuance, are not within
the scope of this subsection, the approval of variances involves
revision of the underlying water quality standard (see OGC
Opinion No. 58, above). As such, these variances constitute
rulemaking under the provisions of § 303 of the Clean Water
Act and are subject to the requirements of Part 25.
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October 19, 1981
MEMORANDUM
SUBJECT: Basic Legal Requirements Concerning
Effluent Guidelines Under the Clean Water Act
FROM: Robert M. Perry
General Counsel
TO: Bruce A. Barrett
Acting Assistant Administrator
for Water
Introduction
You have asked for a memorandum of law describing the
basic, minimum, legal requirements the Environmental Protec-
tion Agency (EPA) must meet with regard to developing efflu-
ent guidelines. You also indicated that your priority concerns
are with the best practicable control technology currently avail-
able (BPT), best conventional pollutant control technology
(BCT), and best available technology economically achievable
(BAT) guidelines, and this memorandum will accordingly focus
on these subjects. As I'm sure you are aware, the relevant stat-
utory provisions, legislative history, and court decisions are vo-
luminous and complex, and this memorandum will therefore
touch in a preliminary way only the most basic issues and
should not be regarded as an exhaustive analysis of all legal
requirements. If you would like a more detailed analysis of
any particular issue, please feel free to request a supplemental
memorandum.
Statutory Framework
Section 301(a) of the Clean Water Act bans all discharges of
pollutants to navigable waters unless the discharger is in com-
pliance with several enumerated provisions of the Act, includ-
ing §402. Under §402 of the Act, EPA (or a State that has a
permit program that has been approved by EPA) may issue a
permit authorizing discharges into navigable waters. Such per-
mits must assure compliance with certain specified require-
ments. One of these requirements is that the discharger meet
effluent limitations established in accordance with § 301(b).
Section 301(b) sets up a series of requirements to be met by
industrial and municipal dischargers. The minimum require-
96
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ments for industrial dischargers are that they meet by July 1,
1977, effluent limitations based upon use of best practicable
control technology currently available (BPT), that by July 1,
1984, they meet effluent limitations for toxic pollutants l based
upon best available technology economically achievable (BAT)
and for "conventional" pollutants (as defined pursuant to
§ 304(a)(4))2 effluent limitations based upon best conventional
pollutant control technology (BCT). For all other pollutants, in-
dustrial dischargers must meet BAT effluent limitations by July
1, 1987.
Section 301 does not specifically require EPA to issue any
regulations. Section 304(b) of the Act does require that EPA
issue "regulations providing guidelines for effluent limitations."
Such guidelines must be issued for BPT, BCT, and BAT and
for each level of control must "identify, in terms of amounts
of constituents and chemical, physical and biological character-
istics of pollutants, the degree of effluent reduction attainable"
through use of such level of controls. The guidelines must also
"specify factors to be taken into account in determining control
measures and practices." The statute specifies a minimum list
of such factors that must be considered. This list is somewhat
different for BPT, BCT, and BAT but in all cases requires con-
sideration of such things as cost and nonwater quality environ-
mental impact.
Because § 301(b) does not specifically call for EPA to issue
rules and because § 304(b) speaks of "guidelines," various in-
dustry groups protested when EPA decided in 1973 to issue
"effluent limitation guidelines" under both § 301 and § 304,
setting out nationally applicable specific numerical effluent lim-
itations for particular categories of industries. The industry
groups argued that this was beyond EPA's authority. The dis-
pute was ultimately resolved by the U.S. Supreme Court,
which ruled in Dupont v. Train, 430 U.S. 112 (1977) that EPA
has authority to issue effluent limitations under § 301 and
could fulfill its obligations under § 304 by combining the
guidelines development process with the effluent limitations de-
velopment process, as EPA had done.
1 'Toxic" pollutants include all pollutants contained in a list in H.R. Rep.
95-30.
2 "Conventional" pollutants include biochemical oxygen-demanding pollutants
(BOD), total suspended solids (TSS), fecal coliform, oil and grease, and pH.
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In the 1977 Amendments to the Act, Congress added a new
§ 307(a) and included within this provision the statement:
Effluent limitations shall be established in accord-
ance with sections 301(b)(2)(A) and 304(b)(2) for
every toxic pollutant referred to in table 1 of
Committee Print Numbered 95-30 of the Commit-
tee on Public Works and Transportation of the
House of Representatives ... no later than July
1, 1980.
Discussion
One fundamental question that may be asked is whether EPA
must (as opposed to may) issue nationally applicable effluent
limitations under § 301 of the Act. In this, as in many other
areas, no simple, conclusive legal answer can be given, but my
preliminary analysis is that any decision to issue guidelines
under § 304 without also issuing effluent limitations under
§ 301 would entail serious legal risks, particularly with respect
to BAT for toxic pollutants. Portions of the legislative history
of the 1972 enactment of the Clean Water Act,3 language in
the Supreme Court's Dupont decision4 and the history of the
1977 amendments to the Act 5 all contribute to this judgment.6
3 For example, the Senate Report states that "pursuant to subsection
301(b)(l)(A), and Section 304(b)" the Administrator is to set a base level for
all plants in a given category, and "[i]n no case . . . should any plant be al-
lowed to discharge more pollutant per unit of production than is defined by
that base level." S. Rep. 92-414, p. 50 (1971), Legislative History of the Water
Pollution Control Act Amendments of 1972, at 1468. The Conference Report
on § 301 states that "the determination of the economic impact of an effluent
limitation [will be made] on the basis of classes and categories of point
sources, as distinguished from a plant-by-plant determination." S. Conf. Rep.
92-1236, p. 121 (1972) Leg. Hist. 304.
* "In sum, the language of the statute supports the view that § 301 limitations
are to be adopted by the Administrator, that they are to be based primarily on
classes and categories, and that they are to take the form of regulations." 430
U.S. at 129. 5« also 430 U.S. at 126-127, where the Court found the language
of § 301(b) "hard to reconcile" with the view that permit writers, rather than
EPA, should establish effluent limitations under § 301.
& See, e.g. statement of Rep. Roberts presenting the conference report to the
House, 3 Leg. Hist. 326-27; statement of Senator Muskie presenting the confer-
ence report to the Senate, 3 Leg. Hist. 454-55.
6 In addition, U.S. Steel Corp. v. Train, 556 F.2d 822, 844 (7th Cir. 1977), seems
to hold that EPA must issue nationally uniform effluent limitations.
98
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The legal risk of taking this course of action with respect to
BAT for toxic pollutants is even greater because of the state-
ment in §307(a)(2) that "[e]ffluent limitations shall be estab-
lished in accordance with Sections 301(b)(2)(A) and 304(b)(2)
• • • P>y] July 1, 1980." (Emphasis added.) This would seem to
refer to mandatory rulemaking by the Administrator, a view
borne out by statements of both the House and Senate manag-
ers of the 1977 amendments.7
Even if EPA issued only "guidelines" under §304 it would
be required to set out fairly specific definitions of BPT, BCT,
and BAT. This is because §304(b) requires the guidelines to
identify BPT, BCT, and BAT "in terms of amounts of constitu-
ents and chemical, physical and biological characteristics of pol-
lutants . . . ." (Emphasis added.) This rules out narrative guid-
ance and calls for some form of numerical regulations. It is
also clear that the regulations cannot be too broadly applicable,
since the guidelines must identify BPT, BCT, and BAT "for
classes and categories" of industrial dischargers. The legislative
history also rules out regulations that would identify BPT,
BCT, or BAT in terms of a particular kind of treatment of
pollution, rather than as a level of performance set out in ob-
jective terms, (In other words, EPA cannot say that treatment
system X is BPT, but must identify BPT in terms of what this
treatment system can achieve. This leaves room for use of in-
novative, less costly methods which can achieve the same
result.) 8
The idea of issuing regulations containing a range of num-
bers, instead of single-number effluent limitations, does not
have many of the legal problems discussed above and probably
would be more defensible than the other alternatives to the
present method of issuing guidelines regulations. However, the
Seventh Circuit opinion in U.S. Steel, supra indicates that efflu-
ent limitations must be nationally uniform, an idea that may
not be compatible with ranges.9 Nevertheless, if you are seri-
7 See footnote 5, ante.
"See H.R. Rep. 911, 92d Cong., 107-8, 1 Leg. Hist. 794-95; S. Rep. 414, 92d
Cong., 59, Leg. Hist. 1477.
9 On August 8, 1973, EPA's Office of General Counsel issued an opinion that
ranges would be permissible. However, the Compilation of General Counsel
Opinions contains a note to this opinion indicating that it was "superceded"
by the U.S. Stctl decision. See 2 U.S. EPA General Counsel Opinions (Nils Pub-
lishing Co.) at p. 183 (Water Pollution).
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ously interested in pursuing the idea of issuing ranges of efflu-
ent limitations, I will have my staff explore the legal ramifica-
tions of this approach in more depth than I have been able to
do in this memorandum.
Various other requirements also apply to the guidelines regu-
lations. They must demonstrate consideration of the factors
listed in § 304(b), such as cost, age of facilities, and nonwater
quality environmental impact (for example, creation of sludge
noise, odors, etc.). In addition, in developing these regulations,
EPA must meet the general requirements of the Administrative
Procedure Act, including notice and opportunity for comment.
As these requirements have been interpreted by the courts,
EPA must make relevant information available for comment by
interested parties, must respond in writing to significant com-
ments, and must set out in writing in the record its reasons
for its decisions, its assumptions, and its methodologies. Much
of this is usually accomplished by explanations and discussions
contained in the preamble to the regulations. I am attaching a
memorandum discussing the requirements for regulation pream-
bles that was written for the Superfund program but is gener-
ally pertinent to all Agency rulemakings.
Attachment [Deleted.]
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January 15, 1982
MEMORANDUM
SUBJECT: Approval of Partial State National
Pollutant Discharge Elimination
System and Section 404 Programs
FROM: Robert M. Perry
General Counsel
TO: Bruce R. Barrett
Acting Assistant Administrator
for Water
Question 1
Does the Clean Water Act (CWA) authorize the Environmental
Protection Agency (EPA) to approve partial State National Pol-
lutant Discharge Elimination System (NPDES) programs? If so,
are there limits on the scope or nature of partial approvals?
Answer
The CWA probably authorizes partial approvals where a State
has ceded its authority to an interstate agency for certain water
bodies. The Act also probably allows approval of a State pro-
gram that does not cover Indian activities on Indian lands (be-
cause Congress has not expressly granted the State regulatory
authority over these activities). With these exceptions, partial
approvals—whereby the State would issue permits for some
categories of dischargers and EPA would issue permits for the
remainder—appear to pose severe legal risks under the Clean
Water Act.
Discussion
Section 402(b) of the CWA authorizes any State that wishes to
administer its own permit program to submit to EPA a descrip-
tion of the program "it proposes to establish and administer
under State law or under an interstate compact." Under
§ 402(c)(l), within 90 days of the State's submission, EPA must
suspend its issuance of NPDES permits "as to those navigable
waters subject to such program" unless the Agency determines
that the program fails to meet the Federal statutory or regula-
tory requirements. If EPA must suspend its issuance of permits
"as to those navigable waters subject to [a State's] program," it
101
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follows that the State must issue all permits for discharges into
those waters. The legislative history confirms this reading.1
The Senate Report states that "after a State submits a pro-
gram that meets the criteria established by the Administrator
. . . , the Administrator shall suspend his activity in such
State under the Federal permit program." 2A Legislative History
of the Water Pollution Control Act Amendments of 1972, 93d
Cong. 1st Sess., 1489 (Comm. Print 1973). (Hereinafter Leg.
Hist.) Moreover, the House Report stated that under § 402(b)
"a state desiring to administer its own permit program for dis-
charges into the navigable waters within its jurisdiction may submit
its program to the Administrator." (Emphasis added.) 1 Leg.
Hist. 813. Representative Terry stated that one of the purposes
of the bill was "to assure and encourage full implementation of
permit issuing authority to States which are qualified and have
approved programs." (Emphasis added.) 1 Leg. Hist. 580. Simi-
larly, Representative Harrington stated that "the permit pro-
gram must be put solely in the hands of the States" once they
meet the applicable Federal requirements. (Emphasis added.) 1
Leg. Hist. 516. The conference report discusses § 402 as provid-
ing for a State "to administer its own permit program in lieu of
the Administrator's program." (Emphasis added.) 1 Leg. Hist. 322.
Representative Roe said that a State would apply "for the pro-
gram in the State" and upon approval by EPA would take
over "the program." 1 Leg. Hist. 428. Thus, the legislative his-
tory strongly indicates that Congress' understanding was that
States were to take over the entire NPDES program. See also I
Leg. Hist. 466 (Remarks of Rep. Dorn), 577 (Remarks of Rep.
Reuss), 579 (Remarks of Rep. Roe), 854 (Remarks of Adminis-
trator Ruckelshaus).
1 The Agency's historical construction of the Act offers little assistance. In
1972, EPA adopted initial State NPDES program requirements under § 304(i) of
the CWA. 37 Fed. Reg. 28390 (Dec. 22, 1972). In §124.10, EPA required that
State programs cover all point sources. In a comment appended to that section,
the Agency suggested that a State's failure to comply could be grounds for
EPA to disapprove the program or to decline to suspend permit issuance for
the "categories, types, or sizes of point sources" not covered by the State pro-
gram. Id. at 28292. No partial programs were ever approved, however, and in
1979, EPA adopted a flat prohibition on partial approvals. 40 C.F.R. §123.1
(comment), 44 Fed. Reg. 32918 (June 7, 1981). It does not appear that the le-
gality of partial approvals was ever examined in detail in connection with
either rulemaking.
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This view is reinforced by an examination of §402(a)(5).
Section 402(a)(5) of CWA provides for State issuance of
NPDES permits during the interim period between passage of
the Act and EPA's promulgation of § 304(i)(2) guidelines speci-
fying minimum requirements for State programs (the guidelines
were promulgated in December 1972). Section 402(a)(5) requires
that EPA authorize any State, which the Agency determines to
be capable of administering a permit program that will carry
out the objectives of the Act, "to issue permits for discharges
into the navigable waters within the jurisdiction of such State."
This language indicates that the interim State program was to
be a full NPDES program covering all State waters. The state-
ment of Representative Wright, a leading sponsor of the Act,
supports this reading of § 402(a)(5):
The interim program is not intended to be approved
on a piecemeal basis. The managers understand the
language of the conference report to require and they
expect the Administrator to authorize the State to
handle the total permit program during this interim
period and the Administrator is not authorized to
delegate bits, pieces, categories, or other parts. He
must authorize the State to carry out the full program
for all categories of discharges.
1 Leg. Hist. 261.
The fact that only full State NPDES programs could be ap-
proved in the interim period further suggests that only full,
permanent State programs could be approved. It seems unlikely
that Congress would require only full programs for an interim
period, but allow partial permanent programs.2 Again, the leg-
2 In § 402(c)(l) Congress authorized EPA to withdraw approval of a State pro-
gram EPA found not to be administered in accordance with Federal require-
ments. There is overwhelming evidence that Congress authorized withdrawal
only of the entire State program and prohibited withdrawal of parts of a pro-
gram. For example, Congress rejected an Administration proposal to allow EPA
to withdraw approval of only part of a State program. 2 Leg. Hist. 1205; 1
Leg. Hist. 854-5; 2 Leg. Hist. 1189. See also 1 Leg. Hist. 262 (Remarks of Rep.
Wright). However, this legislative history is not dispositive as to partial approval
of a program, since Congress could conceivably have meant that even if a par-
tial program was approved, EPA could not withdraw only part of that pro-
gram. In EPA v. California ex rel. State Water Resources Control Bd., 426 U.S. 200
(1976) (hereafter EPA v. California), the Supreme Court found that this legisla-
Continued
103
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islative history supports this conclusion. Representative Wright
stated that the interim permit program was meant to allow the
continuation of existing State programs, which "could be ex-
panded and improved during this phase." (Emphasis added.) 1
Leg. Hist. 261. Ultimate approval was to be given to "the
planned integrated State permit program." (Emphasis added.) 1
Leg. Hist. 262.
Finally, it is clear that Congress knew how to expressly pro-
vide for partial State program approvals in environmental stat-
utes. Section 110(a)(2) of the Clean Air Act thus provides that
"the Administrator shall approve ... [a State implementation]
plan, or any portion thereof," if he determines that it meets Feder-
al requirements. And under § 1422(b)(2) of the Safe Drinking
Water Act, the Administrator may "approve, disapprove, or ap-
prove in part and disapprove in part," a State underground in-
jection control program. One cannot attribute too much weight
to Congress' use of different language in a separate statute, but
the omission of similar language in the CWA nevertheless is
some evidence that it does not authorize partial program ap-
provals.
There are two circumstances, however, under which partial
approval is probably lawful. In the first, a State has ceded its
authority over part of its waters to an interstate agency.3 In
such a case, the Supreme Court concluded, in dicta, that a State
may have a program that covers only the remaining waters.
EPA v. California, supra. The second case arises where a State
cannot, under Federal law, issue certain permits.4 Here, again,
live history simply indicated that States must "be given maximum responsibil-
ity for the permit system and that the EPA's review authority be restricted as
much as was consistent with its overall responsibility for assuring attainment
of national goals." Id. at 224 n. 29.
3 Section 402(b) allows programs to be submitted by an "interstate agency."
4 In EPA v. California, supra, the Court said that "the EPA obviously need not,
and may not, approve a state plan which the state has no authority to issue
because it conflicts with Federal law." Id. The Court was referring specifically
to permits for Federal facilities, which it held States had no authority to issue
under the pre-1977 CWA. The 1977 amendments to the Act lifted this prohi-
bition. Under a similar rationale, the General Counsel has concluded that State
NPDES programs may not, absent "clear Congressional consent," be applied to
Indian activities on a reservation. Letter from G. William Frick to Louis J.
Breimhurst, May 24, 1977, at 1.
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it appears lawful for EPA to approve the State program if it is
otherwise complete.
It is less clear whether a State may voluntarily renounce au-
thority to issue NPDES permits for certain navigable waters
within its territorial jurisdiction. Except for the interstate com-
pacts referred to in the preceding paragraph, the general struc-
ture of the statute's approval and disapproval process, together
with the legislative history recited above, pose serious legal
risks for approval of any such partial program. It is even more
doubtful that the Clean Water Act and its legislative history
provide a basis for arguing that the Act history provide a basis
for arguing that the Act authorizes any other type of partial
program (e.g., by industrial category).
Question 2
Does the CWA authorize EPA to approve partial State § 404
programs? If so, are there limits on the scope or nature of par-
tial programs?
Answer
The language in § 404 concerning the effect of program ap-
proval is different from that in § 402. Because of this, the ar-
gument for approval of partial § 404 programs is somewhat
more plausible than that for approval of partial § 404 programs.
However, most of the legislative history and statutory con-
struction problems associated with partial § 402 programs also
apply to § 404, with one exception. The CWA does clearly au-
thorize EPA to approve State § 404 programs that do not cover
certain traditional navigable waters and adjacent wetlands.
Discussion
Section 404 authorizes States to submit to EPA for approval
"permit programfs] for the discharge of dredged or fill material
into the navigable waters." However, under § 404(g), States are
prohibited from assuming administration of the program for
discharges into "waters which are presently used, or are sus-
ceptible to use in their natural condition or by reasonable im-
provement as a means to transport interstate or foreign com-
merce shoreward to their ordinary high water mark, including
all waters which are subject to the ebb and flow of the tide
shoreward to their mean high water mark, or mean higher high
105
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water mark on the west coast, including wetlands adjacent
thereto." In this sense, therefore, all State programs must be
partial programs.
The real question is thus whether EPA can approve State
§ 404 programs that only partially cover the remaining naviga-
ble waters in the State or that are otherwise incomplete. The
statutory obstacle to partial approval of § 402 programs, as
noted above, is the requirement that EPA suspend issuance of
permits "as to those navigable waters" regulated by the State.
By contrast, § 404(h)(2)(A), (3), and (4) require the Corps of
Engineers to suspend issuance of permits "for activities with
respect to which a permit may be issued" under the State pro-
gram. On its face, this distinction between the two sections
makes the case for partial § 404 approvals more plausible.
However, some risk remains, because Congress probably had
another meaning in mind for the § 404 language cited above.
This parallel between § 402 and § 404 means that the obsta-
cles in § 402 to partial approval of State programs apply with
some force to § 404. In addition, when Congress intended par-
tial progams for dredged and fill material, it made its intent
clear. For example, under § 208(b)(4)(B) and (C), States may es-
tablish regulatory programs to develop and apply supplemental
best management practices for certain discharges or "place-
ments" of dredged or fill material. The legislative history is
clear that such § 208 programs did not need to reach all dis-
charges, but could be limited to particular classes of activities.
See, e.g., 3 Leg. Hist. 421 (Remarks of Rep. Harsha); 3 Leg.
Hist. 530 (Remarks of Sen. Wallop).
Thus, as with § 402, partial approval of State § 404 programs
entails some significant legal risk.
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February 23, 1982
MEMORANDUM
SUBJECT: Interpretation of Section 301(b)(l)(C)
of the Clean Water Act
FROM: Robert M. Perry
General Counsel
TO: John E. Daniel
Chief of Staff
It is my understanding that you wish an analysis of the Envi-
ronmental Protection Agency's (EPA's) authority under
§ 301(b)(l)(C) of the Clean Water Act to impose effluent limi-
tations based on water quality standards. Before turning to
some specific questions, which are set out in Attachment A, I
would first like to discuss the interpretation of § 301(b)(l)(C)
in more general terms.
Sections 301(b)(l)(A) and (B) require all point sources to
achieve, by July 1, 1977, effluent limitations that require the
application of best practicable control technology currently
available (BPT), or, in the case of publicly owned treatment
works, secondary treatment. Section 301(b)(l)(C) requires that
there shall also be achieved:
not later than July 1, 1977, any more stringent
limitation, including those necessary to meet water
quality standards, established pursuant to any
State law or regulations, (under authority pre-
served pursuant to section 510) ... or required to
implement any applicable water quality standard
established pursuant to this Act.
Section 402 of the Act establishes the National Pollutant Dis-
charge Elimination System (NPDES) permit program, under
which the Administrator or an approved State issues point
source permits reflecting the requirements of the Act, including
the requirements of § 301.
On its face, § 301(b)(l)(C) clearly requires each point source
to meet, by July 1, 1977, any more stringent limitation neces-
sary to meet water quality standards established up to that
date. The real question is whether it also requires sources to
meet limitations based on water quality standards established
after July 1, 1977. For the reasons set forth below, it is my
107
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conclusion that § 301(b)(l)(C) is not limited in scope to those
water quality-based limitations that could have been imposed
up to July 1, 1977.
First, the language of the section does not expressly exclude
post-1977 water quality standards as a basis for effluent limita-
tions. Nor is there any legislative history that expresses an
intent to limit the provision to pre-1977 requirements. Had
Congress intended to so restrict the scope of § 301(b)(l)(C), it
could easily have done so. In light of this, July 1, 1977, is best
viewed as nothing more than an initial compliance deadline.
Second, § 303(c) requires States to review, and, if necessary,
revise their water quality standards at least once every 3
years.1 Thus, it is clear that water quality standards were not
expected to be static but rather to change and frequently to
become more stringent over time.2 This periodic revision of
water quality standards loses much of its meaning if the new
standards cannot be enforced in NPDES permits through
§301(b)(l)(C).3
Moreover, the 1977 legislative history provides evidence that
Congress expected post-1977 water quality standards to be en-
forced through § 301(b)(l)(C). As the Senate Report explained,
"Congress intended in 1972 that State water quality standards
would be imposed through section 301 .... This amendment
[to § 401] follows the original congressional intent and clarifies
that."4 The 1977 conference report also emphasizes that "sec-
tion 301 is always included by reference where section 301 is
listed."5 Such statements in 1977 make sense only if
1 Section 24 of the 1981 amendments to the Act reemphasizes Congress' intent
that this be done by restricting the availability of construction grant funding
to only those States that carry out such reviews.
2 See, e.g., remarks at 1 Legislative History of the Water Pollution Control Act
Amendments of 1972, at 246, 353, 489, 524.
3 In addition, it may be assumed that water quality standards will also be
made less stringent in some instances. A cramped reading of § 301(b)(l)(C)
would require EPA either to ignore post-1977 water quality "downgrades" or
to adopt the position that the section discriminates between downgraded water
quality standards and upgraded water quality standards. Either way, the
Agency would be placed in an illogical situation.
4 S. Rep., 4 Leg. Hist. 705-06.
5 Conf. Rep., 3 Leg. Hist. 280.
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§ 301(b)(l)(C) includes, not only water quality standards prom-
ulgated up to July 1, 1977, but also new or revised water
quality standards promulgated after that date.
Moreover, interpreting § 301(b)(l)(C) as restricted to July 1,
1977, water quality standards would create an unnecessary in-
consistency with § 401. Section 401 provides for State certifica-
tion that discharges will comply with § 303. Thus, such certifi-
cations reflect those water quality standards in effect at the
time of certification, not those in effect in 1977. It would be
strange if post-1977 water quality standards could be imposed
through § 401 (which applies only to Federal permits) but not
through § 301(b)(l)(C) (which also applies to State permits).
That Congress did not intend such a discrepancy is evident
from the 1977 legislative history, where the conference report
stressed the linkage of §§301, 303, and 401. 3 Leg. Hist. 280.
In my view, an interpretation of § 301(b)(l)(C) as not re-
stricted to 1977 water quality standards does not present any
conflict with § 302. Section 302 establishes a mechanism
through which the Administrator may establish effluent limita-
tions for particular sources to facilitate attainment of "fishable,
swimmable" water quality, where those sources still interfere
with such water quality after application of limitations required
under § 301(b)(2) ("BAT" or "BCT" technology). Section 302
limitations may be imposed on such sources only after the Ad-
ministrator determines that there is a reasonable relationship
between costs and benefits.6
There are really two questions to be considered concerning
the relationship of § 301(b)(l)(C) and §302. The first is wheth-
er § 302 in some way supercedes or limits § 301(b)(l)(C). The
second is whether interpreting § 301(b)(l)(C) broadly makes
§ 302 superfluous. In my view, § 301(b)(l)(C) should not be
read as constrained or superceded by § 302. First, by its own
terms, § 302 makes clear that it does not affect the application
of effluent limitations imposed under § 301. Section 302(c) pro-
vides: "The establishment of effluent limitations under this sec-
tion shall not operate to delay the application of any effluent
limitation established under § 301 of this Act." Effluent limita-
tions established under § 301(b)(l) to implement water quality
standards promulgated under State law or pursuant to
6 Only the Administrator may establish requirements under § 302; the States
cannot utilize this provision.
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§ 303(c)(4) are "effluent limitation[s] established under
§§ 301(b)(l)(A) or (B) or 301(b)(2) to implement technology-
based effluent guidelines promulgated under § 304 are also "es-
tablished under § 301." In explaining § 302(c), the Senate
Report stated that § 302 is intended to furnish a supplemental
basis for improving water quality, and not to be a cause for
delay in executing the requirements of § 301, or for requiring
any less stringent effluent limitations." 2 Leg. Hist. 1466.
Furthermore, to read §302 as limiting § 301(b)(l)(C) would
upset the careful Federal-State balance under the Act. Section
510 expressly preserves the rights of States to adopt and en-
force standards and limitations more stringent than Federal re-
quirements, and § 301(b)(l)(C) on its face converts them into
requirements that must be reflected in NPDES permits under
§ 402. It would therefore be inconsistent with congressional
intent to read § 302 as limiting the authority of States to re-
quire compliance with their post-July 1, 1977, water quality
standards.7
Turning to the other side of the § 302 question, it is also
clear that interpreting § 301(b)(l)(C) as applying to the post-
1977 period does not make § 302 superfluous. Section
301(b)(l)(C) protects only the water quality specified in exist-
ing water quality standards. That quality may be less than
"fishable, swimmable" water for particular streams. Thus,
§ 301(b)(l)(C) can be used to achieve the statutory goals of
"fishable, swimmable" water only when that goal has been
adopted in a water quality standard. Section 302, on the other
hand, may be used to establish limitations to attain or main-
tain "fishable, swimmable" water even though standards calling
for such water quality have not been promulgated under § 303
or State law.8 Thus, § 302 is recognized as simply an alterna-
tive way to improve water quality, applicable to those situa-
tions where technology-based standards are inadequate and no
water quality standards are in place calling for "fishable, swim-
mable" water.
7 The problem is compounded by the fact that § 302, unlike problem
§ 301(b)(l)(C), provides no mechanism for establishing limits less stringent than
needed to achieve "fishable, swimmable" water quality.
8 It is in this situation, where there is no existing water quality standard de-
veloped through rulemaking, that the detailed procedural and substantive re-
quirements of § 302 are most appropriate.
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In conclusion, based on the express statutory language, the
statutory scheme, and the legislative history, I believe that the
correct interpretation of § 301(b)(l)(C) is that it requires point
sources to comply with any more stringent limitations neces-
sary to meet not only those water quality standards in effect
on July 1, 1977, but also any more stringent water quality
standards adopted after that date. I believe that arguments to
the contrary are based on an incorrect reading of the statute.
The question is not completely free from doubt because there
is no case law directly on point. However, the clear tendency
of the courts has been to read the Clean Water Act broadly,
so as to carry out its purpose, i.e., to restore and maintain the
integrity of the Nation's waters.9 Consequently, I believe it
highly unlikely that any other interpretation would be accepted
by the courts.
I will now turn to the specific questions set out in Attach-
ment A.
1. "May EPA impose on a factory constructed in 1982 a
water quality standard that is more stringent than the standard
that would have been imposed on July 1, 1979?"10 Yes, for
the reasons discussed above.
2. "May EPA impose on a factory constructed in 1974, that
has already met the more stringent standards imposed prior to
July 1, 1977, a still more stringent standard promulgated in
1982?" Yes, for the reasons discussed above, with one qualifi-
cation. The question does not state whether the factory's
permit expires in 1982. Until the permit reflecting the earlier,
more lenient water quality standards expires, § 122.15(a)(3)(i)(C)
of the Consolidated Permit Regulations prevents EPA from
modifying the permit to reflect the new water quality stand-
ards, unless the permittee requests such a modification.11 This
restriction does not apply when the permit expires and EPA or
a State reissues it.
3. "May EPA impose on a factory constructed in 1970 that
has not yet met the more stringent standards imposed prior to
9 See, e.g., £/ duPont v. Train, 430 U.S. 112, 131-32 (1977); American Frozen Food
hist. v. Train, 539 F.2d 107, 130-31 (D.C. Cir. 1976).
101 assume the reference to "July 1, 1979" is a typographical error and should
be to "July 1, 1977."
1 * Under § 402(k), compliance with an NPDES permit also constitutes compli-
ance with §301, for enforcement purposes.
Ill
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July 1, 1977, a still more stringent standard promulgated in
1982?" Yes, for the reasons discussed above, subject to the
same qualification as Question 2.
4. "May EPA impose on a factory that was issued a permit
in 1978, the requirements of which did not, in fact, cause that
permit holder to meet the standards in effect in 1977, [limita-
tions] to meet a still higher standard imposed in 1982?" Yes,
for the reasons discussed above, subject to the same qualifica-
tion as Question 2.
5. "May EPA impose on a factory that was issued a permit
in 1976 the requirements of which did not, in fact, cause that
permit holder to meet the more stringent standards imposed
after July 1, 1977 [limitations] to meet a still higher standard
promulgated in 1982?" Yes, for the reasons discussed above,
subject to the same qualification as Question 2.
Attachment [Deleted.]
112
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June 2, 1982
MEMORANDUM
SUBJECT: Delegation of EPA's Permitting Authority Under
the Clean Water Act to Permitting Authorities
Under the Surface Mining Control and Reclamation
Act of 1977
FROM: Robert M. Perry
Associate Administrator for Legal and
Enforcement Counsel and General Counsel
TO: The Administrator
Background
The Environmental Protection Agency (EPA) and the Office of
Surface Mining (OSM) of the Department of the Interior have
been negotiating a memorandum of understanding (MOU) that
would provide for the combination of permits under the Clean
Water Act (CWA) and the Surface Mining Control and Recla-
mation Act of 1977 (SMCRA) into joint permits prepared by
the SMCRA authority. OSM would like to include in the
MOU a provision that if EPA does not approve the issuance
of a joint permit within a specified period of time, it shall be
deemed to have concurred in the joint permit's issuance. This
memorandum addresses the legality of such a provision.
Issue
May EPA lawfully allow the OSM or a State authority imple-
menting SMCRA to issue National Pollutant Discharge Elimina-
tion System (NPDES) permits under the CWA in the absence
of an affirmative EPA concurrence?
Conclusion
EPA has no such legal authority.
Discussion
Section 402(a)(l) of the CWA provides for the issuance by the
Administrator of permits for the discharge of pollutants into
waters of the United States. Such permits must require compli-
ance with various provisions of the Act. Section 402(a)(2) re-
quires that "the Administrator shall prescribe conditions for
such permits to assure compliance with the requirements of
113
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paragraph (1) of this section . . .." Section 402(b) provides the
mechanism and requirements under which States may assume
permitting authority.
According to the Administrative Procedure Act, 5 U.S.C.
§ 558(b), "a sanction may not be imposed or a substantive rule
or order issued except within jurisdiction delegated to the
agency and as authorized by law." The authority to issue per-
mits allowing discharges of pollutants into the Nation's waters
is vested in EPA under § 402(a) of the Act. Accordingly, no
other agency may exercise that authority unless it is delegated
pursuant to statute.
Authority for delegation of authority from one agency to an-
other was granted by the Reorganization Act of 1939, as
amended, 5 U.S.C. §901. The Reorganization Act provided that
executive reorganization plans, including the transfer of all or
part of one agency's functions to another agency, must be sub-
mitted to Congress. 5 U.S.C. § 903(a)(l). The plans would take
effect unless disapproved by either House of Congress. Howev-
er, the Reorganization Act expired April 8, 1981. Hence, unless
and until the Reorganization Act is reauthorized by Congress,
any delegation must find authority in another statute.
OSM has suggested 1 that § 501(b) of the CWA confers such
delegatory authority on EPA. Section 501(b) provides as fol-
lows:
The Administrator, with the consent of the head
of any other agency of the United States, may
utilize such officers and employees of such agency
as may be found necessary to assist in carrying
out the purposes of this Act.
OSM's contention finds little support in the language of
§ 501(b), its legislative history, or in the case law on delegation
of authority by Federal agencies. Section 501(b) must be exam-
ined in the light of § 101(d) of the Act, which provides:
Except as otherwise expressly provided in this Act, the
Administrator of the Environmental Protection
Agency . . . shall administer this Act. (Emphasis
added.)
1 Some of the arguments attributed to OSM in this memorandum have been
expressed in informal communications from OSM counsel. Others, I under-
stand, were raised directly to you by Secretary of the Interior Watt.
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The authorization in §501(b) for the Administrator "to utilize
such officers and employees of such agency as may be found
necessary to assist in carrying out the purposes of this Act,"
(emphasis added) is hardly an "express provision" to allow
other agencies to administer the Act. On its face, this language
contemplates only the assistance of other Federal agencies, not
their assumption of the Administrator's responsibilities under
the Act.
Furthermore, there is a strong presumption that the authority
conferred on one agency should not be delegated to another. In
Textile and Apparel Group, American Importers Association v. FTC, 410
F.2d 1052, 1057-58 (D.C. Or. 1969), cert, denied, 396 U.S. 910
(1969), the court rejected the Federal Trade Commission's con-
tention that it could act pursuant to a statute that gave au-
thority to the Bureau of Customs:
(T]he Commission's argument runs afoul of the
general principle that authority committed to one
agency should not be exercised by another. The
reason for this is that Congress delegates to one
agency certain authority, perhaps because it feels
that agency is the most capable of exercising it.
Thus, Congress may well have felt that the Com-
mission should restrict its enforcement powers to
the type with which it was generally familiar—
cease and desist procedures—and that Customs
was better equipped to handle detention of goods
at a port. Further, the political realities are often
such that Congress has chosen a particular agency
with a particular orientation toward a problem; the
proper place for interested parties to get a differ-
ent agency (with perhaps a more favorable orien-
tation) to handle the job is back in Congress.
The above language argues strongly against the delegation of
NPDES authority. EPA was the agency chosen by Congress to
implement controls on water pollution. As noted earlier. Con-
gress made that clear in § 101(d), which requires EPA to ad-
minister the Act unless "otherwise expressly provided." The is-
suance of permits by the Administrator is an integral part of
EPA's administration of the CWA.
In addition, in most States having significant coal mining op-
erations, the SMCRA permitting authority is the State itself.
Section 501(b) makes no mention of utilizing officers and em-
115
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ployees of State, as opposed to Federal, agencies. On the con-
trary, it is clear that §402(b) provides the sole mechanism by
which States may assume responsibility for NPDES programs.
In enacting § 402(b), Congress imposed substantial prerequisites
on both the States and EPA before such responsibility could be
assumed. A construction of § 501(b) allowing the delegation of
NPDES permitting authority to States that do not administer
NPDES programs and have not met the substantial qualifica-
tion requirements of § 402(b) would be manifestly inconsistent
with the purposes of § 402(b) and would do considerable vio-
lence to the statutory scheme of the Act.
A comparison of § 501(b) with other statutory provisions that
do authorize agency delegations buttresses the conclusion that
no delegation of permitting authority is contemplated by
§ 501(b). Most compelling is § 107(b) of the Marine Protection,
Research, and Sanctuaries Act of 1972 (MPRSA), 33 U.S.C.
§ 1401 et seq. That section, enacted in the same year as the
CWA, provides:
The Administrator or the Secretary may delegate
responsibility and authority for reviewing and
evaluating permit applications, including the deci-
sion as to whether a permit will be issued, to an
officer or agency, or he may delegate, by agree-
ment, such responsibility and authority to heads
of the Federal departments or agencies, whether
on a reimbursable or nonreimbursable basis.
This section demonstrates clearly that Congress, when it
wished to do so, knew how to allow the delegation of permit-
ting authority. Congress provided such authority under the
MPRSA; it did not do so under the CWA.
Moreover, an expansive reading of § 501(b) to permit the
delegation at issue is not supported by the section's legislative
history.2 First, the outline of title V of H.R. 11896, § 501(b) of
2 Nor can I agree with OSM that § 101(f) of the Act should be construed to
authorize the delegation of permitting authority. Section 101(f) declares as a
national policy the minimization of paperwork and interagency decision proce-
dures and the avoidance of manpower duplication in implementing the Act.
There is nothing in its language or the legislative history of § 101(f) indicating
that EPA has authority to delegate major functions. On the contrary, § 101(f)
must be read in conjunction with § 101(d), which makes clear that § 101(f) is
to be implemented by means other than delegations of authority.
116
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which was enacted verbatim in the CWA, indicates that
§ 501(b) was intended to permit the Administrator to "borrow
personnel with consent." Legislative History of the Water Pol-
lution Control Act Amendments of 1972 at 417 (1973). Second,
the predecessor of § 501(b), § 8(b) of the Water Pollution Con-
trol Act of 1956, authorized the Secretary of Health, Education,
and Welfare (HEW) to "utilize officers and employees of other
U.S. agencies to assist in carrying out the purposes of the
Act." (Pub.L. 84-660.) 3 That this language was not intended to
authorize delegations is strongly suggested by a juxtaposition of
§ 8(b) with § 8(a) of the 1956 Act, which authorized the Sur-
geon General to "prescribe necessary regulations subject to the
approval of the Secretary of HEW and to delegate his authority
under the Act to officers and employees of the Public Health
Service." (Emphasis added.)
OSM refers to various situations where CWA activities are
carried out by entities other than EPA, arguing by analogy that
they support the conclusion that delegation is authorized here.
OSM notes that some States issue CWA permits, that the
Corps of Engineers issues permits under § 404 of the CWA,
and that the Coast Guard performs certain functions under
§ 311 of the Act. However, as discussed above, § 402(b) specifi-
cally provides for the assumption of permitting authority by
States. Similarly, § 404 specifically authorizes the Corps to issue
permits for dredging operations. Section 311 differs from the
rest of the CWA in that authority is conferred on the Presi-
dent, not EPA. Section 311 expressly allows the President to
delegate authority and also provides specific authority to the
Coast Guard.4 Instead of supporting OSM's arguments, the ex-
press language of these provisions actually undercuts OSM's
position. It demonstrates that Congress knew well how to au-
3 1 USEPA Legal Compilation at 248 (1973).
41 understand that OSM has argued that EPA has delegated authority under
the Safe Drinking Water Act to the United States Geological Survey (USGS).
This is not the case. Some agreements are currently being negotiated between
USGS and States that have assumed the underground injection control (UIC)
program, whereby USGS and the States would cooperate to minimize duplica-
tion of regulatory effort. While EPA has helped to negotiate them, the agree-
ments, if concluded, would be strictly between the States and USGS and
would not relieve the States of their primary responsibility under the UIC pro-
gram.
117
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thorize the exercise of CWA authority by agencies other than
EPA.
OSM has also cited United States v. Weber, 255 F. Supp. 40,
42-44 (D.NJ. 1965), aff'd, 384 U.S. 212 (1966), in support of its
contention that the delegation at issue is lawful. Weber relied
on Goldberg v. Battles, 196 F. Supp. 749, 755 (E.D. Pa.), aff'd, 299
F.2d 937 (3d Cir. 1961), cert, denied, 371 U.S. 817 (1962), which
upheld the delegation by the Department of Labor of certain
investigatory functions to the Department of Justice, pursuant
to §§ 601 and 627 of the Labor Management Reporting and
Disclosure Act (LMRDA), 29 U.S.C. §§ 521, 527.
Weber and Goldberg do indicate that under some circumstances
courts will uphold a delegation of authority, even in the ab-
sence of express statutory authorization. However, the statutory
language of the LMRDA construed in those cases is far broad-
er than § 501(b) of the Clean Water Act.5 More importantly,
the LMRDA does not contain a clause similar to §101(d) of
the CWA, which, as noted above, requires the Administrator to
administer the Act "unless otherwise expressly provided." Thus,
the CWA, unlike the LMRDA, does not afford the latitude for
a court to uphold a delegation of authority.
hi addition, investigatory functions are normally a central
part of the Department of Justice's responsibilities, but presum-
ably comprise only a peripheral part of the Department of
Labor's responsibility. By contrast, the permitting function is an
integral part of EPA's responsibility under the CWA. The
permit is the primary mechanism for control of the discharge
of pollutants into the environment and for ensuring compliance
with applicable water quality standards. EPA has issued numer-
ous water pollution control permits to coal mines. OSM and
5 Section 627 of the LMRDA allows the Secretary of Labor to enter into "ar-
rangements or agreements for cooperation or mutual assistance in the perform-
ance of his functions" and to "utilize the facilities or services of any department,
agency or establishment of the United States . . . including the services of any
of its employees . . . ." (Emphasis added.) Goldberg concluded that this section,
read in conjunction with § 601(b), which specifically recognizes that the Secre-
tary of Labor may "designate" officers to institute investigations, clearly au-
thorized the delegation in question.
By contrast, §501(b) of the CWA authorizes the Administrator only "to uti-
lize such officers and employees of such agency as may be found necessary to
assist in carrying out the purposes of this Act." (Emphasis added.)
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State SMCRA authorities have comparatively little experience
in the area of effluent limitations and water quality standards.6
hi conclusion, for the reasons set forth above, I believe that
EPA lacks legal authority to delegate its permit issuing respon-
sibility to State SMCRA authorities or to OSM.
6 A recent court decision interpreted SMCRA to require that applicable OSM
regulations be consistent with EPA regulations under the CWA. In re Surface
Mining Litigation, 627 F.2d 1346 (D.C. Cir. 1980). The latest OSM regulatory
proposal simply incorporates by reference EPA's effluent limitations guidelines
and applicable water quality standards.
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December 16, 1982
MEMORANDUM
SUBJECT: Waivers for Federal Facilities Under
Section 301(h) of the Clean Water Act
FROM: Robert M. Perry
Associate Administrator and General Counsel
TO: Paul C. Cahill, Director
Office of Federal Activities
We have just received your memorandum of November 10,
1982, concerning an October 15, 1982, Department of Defense
(DOD) request that the Environmental Protection Agency (EPA)
consider DOD sewage treatment plants eligible for variances
under § 301(h) and § 301(i) of the Clean Water Act (CWA).
You have requested that we review an EPA legal opinion dated
September 12, 1978, (attached) and determine whether DOD
treatment works may be considered "publicly owned treatment
works" (POTWs) for the purposes of § 301 of the Act.
Our 1978 opinion concluded that wastewater treatment works
at Federal facilities are not "publicly owned treatment works"
within the meaning of § 301(h) and § 301(i) and that therefore
operators of these facilities cannot qualify for modified permits
under those provisions. As the opinion explains, the legislative
history of § 301 indicates that Congress equated POTWs with
municipalities and had no intent to treat Federal facilities as
POTWs, either in general or for the purposes of § 301(h). We
have carefully reviewed the September 1978 opinion and find
no basis to question its conclusions.1 In addition, we find
nothing in the 1981 amendments to § 301(h) that might change
our views.
Attachment [Deleted.]
1 Your memorandum suggests that the purpose of our prior opinion was to
assure that Federal facilities would not be eligible for Title II grant funds. The
memorandum noted that incidental effect, but was based solely on our inter-
pretation of the Act, the legislative history, and pertinent regulations.
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March 17, 1983
MEMORANDUM
SUBJECT: Legal Issues Concerning Section 404(b)(l)
Guidelines
FROM: Robert M. Perry
Associate Administrator and General Counsel
TO: Frederic A. Eidsness, Jr.
Assistant Administrator for Water
You have asked me to address certain legal issues concerning
the §404(b)(l) guidelines under the Clean Water Act (CWA). I
have previously furnished you an opinion addressing whether
the guidelines need to be a binding regulation. The questions
addressed in this memorandum concern the scope of the guide-
lines. I will address in a separate memorandum the legal as-
pects of revising the definition of "waters of the United
States."
Because of the short schedule under which you are operat-
ing, and the abstract nature of some of the issues, this memo-
randum sets out in general terms, without being exhaustive,
the applicable legal options and constraints. As you develop
more concrete options and proposals, I will of course be glad
to address in more detail the legal basis for, or risks associated
with, particular approaches.
Scope of the Guidelines
Question: Must the guidelines consider impacts of water quality
in the broad ecological sense, or may the guidelines be limited
to assuring compliance with water quality in the sense meas-
ured by water quality standards under § 303 of the Act?
Answer: The guidelines must consider water quality in the
broad ecological sense.
Discussion
Before addressing your specific question, I would like to make
some general observations about interpreting § 404(b)(l). Section
404(b)(l) directs the Environmental Protection Agency (EPA) to
develop guidelines for the specification of disposal sites for
discharges of dredged material, "which guidelines shall be
based on criteria comparable to the criteria applicable to the
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territorial seas, the contiguous zone, and the ocean under sec-
tion 403(c)." Therefore, in determining the required scope of
the §404(b)(l) guidelines, one must look to the criteria applica-
ble under § 403(c). As the guidelines need only be based on
criteria "comparable" to the § 403(c) criteria, the latter may be
modified or adapted to reflect different characteristics of the
types of waters and discharges subject to § 403 and § 404 (e.g.,
open, saline waters versus mainly inland open water and wet-
lands, primarily sewage and industrial discharges versus dredged
and fill material). Subject to that flexibility, if a concept or
consideration is included under § 403(c), it should also be re-
flected in the § 404(b)(l) guidelines.
Turning to the question at hand, the argument in favor of a
broader scope starts with the fact that §403(c) clearly requires
consideration of ecological concerns, beyond "water quality" in
the § 303 sense, including:
(A) the effect of disposal of pollutants on human
health or welfare, including but not limited to
plankton, fish, shellfish, wildlife, shorelines, and
beaches;
(B) the effect of disposal of pollutants on marine
life including the transfer, concentration, and dis-
persal of pollutants or their byproducts [sic]
through biological, physical, or chemical processes;
change in marine ecosystem diversity, productivity,
and stability; and species and community popula-
tion changes;
(C) the effect of disposal, [sic] of pollutants on
esthetic, recreation, and economic values.
Second, § 404(c) also goes beyond strict water quality consid-
erations.1 It appears unlikely that we would have the authority
to veto sites on grounds that go beyond § 303 water quality
standards and yet not be able to address such grounds in the
§ 404(b)(l) guidelines used to select such sites.
1 Section 404(c) allows the Administrator to veto a site if a discharge of
dredged or fill material will have "unacceptable adverse effect" on enumerated
resources. On its face, §404(c) is not limited to considerations of water quality
in the § 303 sense; it refers to "unacceptable adverse effect on municipal water
supplies/ shellfish beds, and fishery areas (including spawning and breeding
areas), wildlife or recreational areas." In addition, the legislative history charac-
terizes such effects as "environmental." 1 Legislative History of the Water Pol-
lution Control Act Amendments of 1972, at 177.
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Another indication of the scope of the § 404(b)(l) guidelines
can be found in §404(e). That section allows the Secretary to
issue general permits when he determines that the separate and
cumulative impacts of a category of activities will have mini-
mal adverse "environmental" effects. The statutory term "envi-
ronmental" is clearly broader than the § 303 water quality
standards. Where the separate or cumulative "environmental"
effects are more than minimal, the Corps must apply the
§ 404(b)(l) guidelines to each discharge individually. (Any gen-
eral permit is also to be based on the § 404(b)(l) guidelines.)
Unless the guidelines consider "environmental" impacts in this
broader sense, there would be no reason to consider such im-
pacts in deciding whether it would be appropriate to forgo
scrutiny of individual discharges.
As I understand it, the following are the principal arguments
that have been raised in support of confining the guidelines to
water quality as measured by water quality standards. First, it
has been argued the Clean Water Act was intended as a
"water quality" act and the focus of § 404 should therefore be
water quality, in a strict sense, and not the aquatic environ-
ment. The second argument is that a broader ecological ap-
proach may result in unnecessary duplication because such con-
cerns are considered in the Corps' "public interest review"2
and under the National Environmental Policy Act (NEPA). Be-
cause § 101(f) expresses a congressional desire to avoid duplica-
tion, it would be reasonable to limit the scope of the guide-
lines to water quality in the narrow sense.
The first argument is undercut by the legislative history and
various court decisions. A narrow water quality standards ap-
proach to § 404 has been specifically rejected by the courts.
Minnehaha Creek Watershed District v. Hoffman, 594 F.2d 617,
626-27 (8th Cir. 1970), Buttrey v. United States, 690 F.2d 1170
(5th Cir. 1982), slip op. at 546. The legislative history shows
that Congress was concerned with the removal of wetlands and
alteration of aquatic habitat (an impairment of the physical and
biological integrity of the Nation's waters) as well as with the
introduction of toxic chemicals (a threat to their chemical in-
2 The "public interest review" is a balancing test that the Corps conducts as
part of its review of permit applications under the River and Harbor Act of
1899, the CWA, and the Marine Protection, Research, and Sanctuaries Act. See
33 C.F.R. §320.4.
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tegrity). See, for example, statements by Senators Stafford and
Baker, 3 Leg. Hist. 484, 523. Numerous courts have recognized
the ecological focus of § 404. See, e.g., Deltona v. United States, 657
F.2d 1184 (Ct. Cl. 1981), Avoyelles Sportsman's League v. Alexander,
473 F. Supp. 525 (W.D. La. 1979) (appeal pending on other
grounds).
The second argument, elimination of duplication, ignores the
fact that Congress established the § 404(b)(l) guidelines, not
the "public interest review" or NEPA review, as the specific
standard for permit issuance under the Clean Water Act. More-
over, when States issue 404 permits, they are not required to
apply the Corps' public interest review or to comply with
NEPA; and when EPA reviews State permits, it also does so
on the basis of the guidelines, not NEPA. Therefore, it is ap-
parent that the guidelines themselves must address all matters
required to be considered under § 404.
Taking these points into consideration, it appears clear that
the § 404(b)(l) guidelines are intended to address a broader
concept of environmental quality than is addressed by water
quality standards under § 303 of the Act.
Question
What is the permissible role of economic considerations under
the guidelines?
Answer
The guidelines must consider economic losses that would be
caused by pollution. They must also consider the costs of al-
ternatives as part of the alternatives analysis. However, a gen-
eral cost-benefit analysis or weighing of economic benefits
against environmental loss would present a significant legal
risk.
Discussion
This issue is best addressed by approaching it from two sides:
(1) To what extent must economic considerations be a part of
the guidelines? (2) What restrictions are there on considering
economics?
Turning to the first point, the "touch stone" for the guide-
lines is § 403(c) of the Act, as explained above. Section 403(c)
primarily deals directly with environmental impacts from dis-
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charges of pollutants. However, § 403(c)(l)(C) calls for consider-
ation of "the effect of disposal, [sic] of pollutants on asthetic,
recreation, and economic values." (Emphasis added.) This clearly
contemplates recognition of the loss of economic values due to
pollution. In addition, § 403(c)(l)(F) refers to "other possible lo-
cations and methods of disposal or recycling of pollutants in-
cluding land-based alternatives." Consideration of "possible" al-
ternatives implicitly includes consideration of their costs.3 If an
alternative is too costly, one could reasonably infer that it is
not "possible." Therefore, it appears that the guidelines must
consider the effect of pollution on economic values, and must
consider the costs of the alternatives.
As to the second part to the question, the factors set out in
§ 403(c) are environmental ones, related to the identification
and assessment of degradation of the aquatic system by dis-
charges of pollutants (including economic losses caused by such
degradation). The economic benefit of the project is not among
the items listed. While the factors considered under the
§ 404(b)(l) guidelines need be only "comparable" to those
under § 403(c), it would be difficult to argue that the economic
benefit of the project is "comparable" to, or even consistent
with, the § 403(c) factors. Consequently, in my view, it would
be risky to develop § 404(b)(l) guidelines under which econom-
ic benefit, an unlisted factor, could outweigh environmental
considerations that are listed.4 Moreover, if economic consider-
ations could be used under the guidelines to outweigh environ-
mental concerns, there would be no need for the § 404(b)(2)
override based on economic impacts on anchorage and naviga-
tion.
The Army has suggested that, because (in its view) NEPA
calls for equal consideration of economic and environmental
consequences, the § 404 decisionmaking process must include a
similar consideration. However, I do not believe that NEPA
governs this issue. Under § 511(c), EPA's action in developing
the guidelines is not subject to NEPA. Therefore, if economic
3 The legislative history contains some references to considering the costs of al-
ternatives, but it is unclear if this is in the context of the § 403(c) criteria or
§404(b)(2). See \ Leg. Hist. 178, 325.
4 Unlike § 102 of the Marine Protection, Research, and Sanctuaries Act
(MPRSA), § 403 does not speak to "unreasonable" degradation.
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considerations are to be applicable, they must be based on the
CWA, not NEPA.
In sum, in my view, the guidelines must consider costs as
part of its alternatives analysis and must consider the economic
consequences of degradation caused by proposed discharges of
dredged or fill material. On the other hand, it would be legally
risky to include a general balancing of economic benefit from
the discharge activity against the harm to the environment.
The risks of an approach between these two extremes are
harder to assess in the abstract.
Question
What legal constraints does § 101(g) impose on the guidelines?
Answer
Section 101(g), which was enacted in 1977, states the congres-
sional policy that the CWA is not to supercede, abrogate, or
otherwise impair the authority of each State to allocate quanti-
ties of water within its jurisdiction. This could be read to pro-
vide that, to the extent any action under the CWA would
conflict with State water allocation, such action is improper.
However, the applicable legislative history indicates that the
effect of this statement of congressional "policy" was not in-
tended to be quite so sweeping. During the Senate debate on
the conference report, Senator Wallop, the sponsor of the pro-
vision, stated:
This amendment is not intended to create a new
cause of action. It is not intended to change
present law, for a similar prohibition is contained
in section 510 of the act. This amendment does
seek to clarify the policy of Congress concerning
the proper role of Federal water quality legislation
in relation to State water law. Legitimate water
quality measures authorized by this act may at
times have some effect on the method of water
usage. Water quality standards and their upgrading
are legitimate and necessary under this act. The
requirements of sections 402 and 404 permits may
incidentally affect individual water rights. Manage-
ment practices developed through State and local
208 planning units may also incidentally affect the
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use of water under an individual water right. It is
not the purpose of this amendment to prohibit
those incidental effects. It is the purpose of this
amendment to insure that State allocation systems
are not subverted, and that effects on individual
rights, if any, are prompted by legitimate and nec-
essary water quality considerations.
This amendment is an attempt to recognize the
historic allocation rights contained in State consti-
tutions.
It is designed to protect historic rights from
mischievous abrogation by those who would use
an act, designed solely to protect water quality
and wetlands, for other purposes. It does not
interfere with the legitimate purposes for which
the act was designed.
3 Leg. Hist. 531-32.
Discussion
This is the principal explanation of the section in the legisla-
tive history.5 Therefore, the courts have taken it into account
in considering the interpretation of § 101(g). See NWF v. Gorsuch,
530 F. Supp. 1291 (D.D.C. 1982), rev'd on other grounds, F.2d
(D.C. Cir. 1982).
Applying § 101(g) to the § 404 program in accordance with
the congressional intent that the courts have found in the leg-
islative history, it appears that incidental effects on water allo-
cation stemming from application of the statutorily mandated
§ 403(c) factors (or merely from the fact of regulation of
dredged and fill material) are proper. However, in applying
those factors we should avoid interference with States' alloca-
tions of water quality within their jurisdictions, where such in-
terference is not necessary in order to accomplish the objectives
of the guidelines. See NWF v. Gorsuch, F.2d (D.C. Cir.
1982), in which the court interpreted the legislative history
quoted above, stating that "we find specific indication in the
Act that Congress did not want to interfere any more than neces-
5 The only other reference is in the conference report, which, after paraphras-
ing the statutory language, merely states, "This provision is intended to clarify
existing law to assure its effective implementation. It is not intended to change
existing law." 3 Leg. Hist. 236.
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sary with state water management." Slip op. at 43. (Emphasis
added.)
Question
Must the guidelines consider secondary impacts?
Answer
By "secondary impacts," I am assuming you mean reasonably
foreseeable impacts of the discharge itself that occur away
from the immediate site of the discharge, e.g., downstream im-
pacts or impacts from the altered circulation as opposed to im-
pacts on whatever is buried by the discharged material. Such
secondary impacts must be included in the guidelines. Some
impacts that may be caused by the subsequent operation of a
project or by associated development may be considered, de-
pending on the directness of the causal connection, the predict-
ibility of such impacts, and a general rule of reason.
Discussion
The statute itself indicates that secondary impacts (as defined
above) should be addressed under the guidelines. For example,
§ 403(c) requires consideration of impacts on shores and beach-
es, which are secondary impacts from ocean dumping, in recog-
nition of the effects of currents. Also, § 404(f)(2) indicates that
Congress was concerned with the effects of discharges of
dredged and fill material on flow and circulation.6 It follows
from § 404(f)(2) that the guidelines should consider impacts on
flow and circulation; unless such considerations were part of
the permit process there would be no point in "recapturing"
discharges because of such impacts.
Finally, there is nothing in the Act that indicates Congress
intended to exclude from consideration adverse impacts on the
aquatic environment caused by a discharge merely because they
were "secondary." To the contrary, part of the very rationale
for extending the Act's jurisdiction beyond traditionally naviga-
ble waters was the fact that the effects of pollution move
through the aquatic system. See, e.g., United States v. Ashland Oil
and Transportation Co., 504 F.2d 1317 (6th Cir. 1974), Commonwealth
6 Section 404(f)(2) reinstates § 404 permit requirements for discharge of dredged
or fill material otherwise exempt under § 404(f)(l) if, inter alia, "the flow or
circulation of navigable waters may be impaired."
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of Puerto Rico v. Alexander, 438 F. Supp. 90, 95 (D. D.C. 1977).
Pollution is controlled at the source in order to prevent such
secondary effects. There can be no serious doubt that such off-
site effects are to be considered in deciding whether to allow
the discharge.
When one moves beyond secondary impacts, as defined
above, to impacts caused by the subsequent operation of a
project or by associated development, the question becomes
more difficult. While it is hard to answer in the abstract, in
general whether such impacts must be considered would appear
to depend on the directness of the causal connection and the
predictability of the impacts, interpreted in light of a rule of
reason. For example, where fill is discharged to build a dam
whose purpose is to manipulate the flow of water, the permit-
ting authority, in evaluating the impacts of the fill, may rea-
sonably take into account the fact that water levels will be
manipulated. On the other hand, when a barge-loading facility
for an upland factory involves some fill, the water quality im-
pacts of the factory are outside the scope of the guidelines,
even if they are, in a sense, a "result" of the fill.
Question
What are the legal requirements for an alternatives analysis in
the guidelines?
Answer
Some consideration of possible other locations and methods of
disposal or recycling of pollutants, including land-based alterna-
tives, is required. The Agency has substantial flexibility in de-
ciding what kind of alternatives analysis to include.
Discussion
Section 403(c), upon which the guidelines are to be based, ex-
pressly includes "other possible locations and methods of dis-
posal or recycling of pollutants including land-based alterna-
tives." Moreover, the 1972 legislative history refers to the need
to consider alternatives, including upland sites, under the § 404
program.7 Therefore, it is clear that the guidelines must contain
7 1 Leg. Hist. 177-78, 325.
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some provision addressing alternatives, ranging from onsite
modifications to other possible locations.
Beyond this, however, the statute provides little direct guid-
ance as to the exact nature of the alternatives analysis. There-
fore, the Agency has substantial discretion in this area. For ex-
ample, although § 230.10(a), the current alternatives analysis in
the guidelines, is legally permissible, other approaches can be
considered. The rest of this discussion addresses possible limits
on our flexibility.
One question that has been raised is whether the guidelines
must require that alternatives be examined in every instance. In
my opinion, the answer is no. For example, if the proposed
discharge is itself clearly environmentally acceptable, as defined
by the guidelines, we may reasonably take the position that a
separate analysis of possible alternatives is unnecessary because
the selection of an alternative site or method would presum-
ably not yield a significant environmental benefit. Conversely,
where it is clear the proposed discharge would cause significant
degradation, the guidelines may legally require that the permit
be denied whether or not alternatives exist. Again, in such
cases, an alternatives analysis would be unnecessary.8 (The
§403(c) guidelines take this approach. See 40 C.F.R. §125.123.)
Of course, we should not limit the use of alternatives analysis
so much that we effectively read that factor out of the Act.
Another aspect of the alternatives issue is the extent to
which permits may (or must) be denied because reasonable, en-
vironmentally preferable alternatives exist. In my view, the ex-
istence of such an alternative may be a permissible ground for
permit denial. First, there would be little purpose in including
an alternatives analysis in a permit program if the existence of
alternatives could not be a factor in permit denial. Second,
such a ground for denial is clearly consistent with the goals of
the Act and the purposes of the § 404 program, as evidenced
by § 101(a) and § 403(c) and the legislative history.
Whether the guidelines must require that permits be denied
because reasonable, environmentally preferable alternatives exist
is a somewhat more complicated question, and probably de-
8 Of course, the guidelines may require some alternatives analysis even when a
discharge appears not to involve significant degradation. This approach would
be based on the concept that it is permissible to require that all of the § 403(c)
requirements be considered in every case.
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pends in part on the environmental effects of the proposed
discharge. For example, where the proposed discharge would
have environmental effects of serious concern and a reasonable,
environmentally preferable alternative is available, the statutory
scheme and legislative history virtually compel denial. On the
other hand, where the impact of the discharge in question is
insignificant we would justify not requiring selection of a
"better" alternative (or even, as noted above, not doing an al-
ternatives analysis at all).9
9 Another question that has been raised is whether the guidelines can authorize
a discharge which will admittedly cause unacceptable degradation, on the
grounds that no practicable alternative is available and there is a "need" for or
"benefit" from the discharge which outweighs the environmental degradation.
This presents the same issue discussed, supra, concerning economics. As ex-
plained there, allowing "economics" or "need" to override environmental degra-
dation under the guidelines is legally risky. Of course, where navigational in-
terests are at stake, §404(b)(2) provides a separate basis for authorizing dis-
charges prohibited by the guidelines.
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April 5, 1983
SUBJECT: Applicability of Section 404 of the Clean Water
Act to Certain Channelization and Stream Mainte-
nance Activities
Mr. Glenn Kinser
Supervisor, Annapolis Field Office
Fish and Wildlife Service
Division of Ecological Services
1825-B Virginia Street
Annapolis, Maryland 21401
Dear Mr. Kinser:
Jose Allen has referred to me your letter of December 29,
1982, concerning the applicability of § 404 of the Clean Water
Act (CWA) to certain channelization and stream maintenance
activities. Because at least some of the apparent conflict in this
area appears to stem more from confusion over the issues in-
volved than from legal disputes, I would like to begin by care-
fully framing the issue. I am assuming for purposes of this
letter that the streams in question are "waters of the United
States," as defined in 40 C.F.R. § 230.3.
Channelization and stream maintenance work can involve a
number of different operations, which must be distinguished
for purposes of analyzing the applicability of § 404. For exam-
ple, sediment can be excavated by a dragline or clamshell
bucket that is located either in the stream or on the bank. The
material so excavated can be deposited on the shore or in a
new location in the stream. Stream work can also be performed
by a bulldozer working in the stream. Such a bulldozer may
push sediment up onto the bank above the ordinary high
water mark in a continuous motion, may stockpile excavated
sediment in the stream, may fill depressions in the stream bed,
may release varying amounts of excavated material as tempo-
rarily suspended solids, may leave mounds at the edge of the
blade's path, and so forth.
Section 404 governs the discharge of dredged or fill material
into waters of the United States. A "discharge" involves an ad-
dition of a pollutant, such as dredged or fill material, to waters
of the United States from a point source, § 502, 33 U.S.C.
1362. Bulldozers and draglines are "point sources," Avoyelles
Sportsman's League v. Alexander, 473 F. Supp. 525 (W.D. La. 1979)
132
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(appeal pending on other grounds); United States v. Holland, 373
F. Supp. 665 (M.D. Fla. 1974). "Fill material" includes any ma-
terial that changes the bottom elevation or converts a wetland
to a dry land, 40 C.F.R. § 122.3; "dredged material" includes
any material excavated from waters of the United States, id.
Dredged material by definition comes from waters of the
United States, and, when not disposed of on land, is usually
discharged in the same water body albeit at a different loca-
tion. Consequently, the term "addition" in the definition of
"discharge" has been traditionally interpreted to include the re-
location of dredged material to a different part of the original
stream as well as its introduction to a new water body.
It appears from your letter that there is no serious dispute
that mere drippings from a dragline or clamshell bucket, at
least where de minimis, do not constitute a discharge of dredged
or fill material subject to § 404. Section 404 does not regulate
dredging per se, but only the discharge of dredged or fill mate-
rial from a point source into waters of the United States.
Whether the equipment itself is located in the stream or on
dry land is immaterial from a jurisdictional standpoint, as long
as the load itself (minus normal, de minimis drippings) is depos-
ited on dry land. Similarly, there can be little dispute that a
discharge of dredged or fill material occurs when a bulldozer
working in a stream leaves its load in a different part of the
stream or in an adjacent wetland.
The real issue seems to be whether a discharge of dredged
or fill material occurs in every instance in which a bulldozer
works in a stream, even if the equipment ultimately pushes its
load up onto dry land. The answer is that whether a discharge
occurs depends in significant part on the factual circumstances
of particular operations, e.g., whether the bulldozer works
"cleanly," removing virtually all its load from the stream, with
the exception of de minimis spillage, whether the bulldozer de-
posits more than de minimis amounts of its load in stream bed
depressions, raising the bottom elevation, or whether excavated
material is stockpiled in the stream prior to planned removal,
and if so, for how long. I hazard no guess as to which of
these scenarios is more "typical."
In the case of "clean" bulldozing, where the bulldozer moves
virtually all its load onto the bank, with the exception of de
minimis spillage, I see little basis for drawing a distinction be-
tween such an operation and the dragline operation discussed
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earlier. A common sense reading of the applicable definitions
leads to the conclusion that such operations involve simply
dredging, not the discharge (addition) of dredged or fill materi-
al. The fact that the material was carried across the stream bed
does not, in and of itself, create a discharge. On the other
hand, where a bulldozer actually fills in bottom depressions
with more than de minimis amounts of sediment, thereby raising
the bottom elevation, there is a discharge of dredged or fill
material. See Avoyelles Sportsman's League v. Alexander, supra. Again,
de minimis refers to the unavoidable residue that one would
expect to be left by a careful dredging operation. Similarly,
mounds at the edge of the bulldozer blade are analogous to
bucket drippings. De minimis mounds incidental to normal
dredging should not be considered discharges; conversely, more
than de minimis mounds left at the side of the blade would be
discharges. In the case of stockpiling, one must use a common
sense approach and consider whether there is simply a brief
pause in an otherwise continuous removal operation or whether
the material is being stockpiled indefinitely, with less certainty
of prompt removal. In the former case, there is arguably no
"addition"; in the latter, at least at some point, it would be
reasonable to find a discharge.
Your letter also raises the question of jurisdiction over
dredged material that sloughs off the bank back into the
water, that is, material placed by a point source on the bank
where natural forces (other than gradual erosion) are likely to
result in its slipping back into the water and which in fact
does slip into the water. In such a case, the point source does
not directly place the material in the water, although it is
largely instrumental in that result. Such deposits are clearly
covered by the Refuse Act of 1899, one of the predecessors to
the Clean Water Act. Since the coverage of the Clean Water
Act was generally intended to encompass at a minimum the
coverage of the Refuse Act (see United States v. Hamel, 551 F.2d
107 (6th Cir. 1977)), it appears reasonable and consistent with
congressional intent to consider such sloughed material to be a
discharge of dredged material subject to § 404. I do not inter-
pret your example to refer to material that gradually erodes
from either the natural bank or from deposits on the bank.
Where there is simply gradual erosion, it would probably be
more appropriate to consider it nonpoint source pollution sub-
ject to § 208 of the Act, not the § 404 permit program.
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For these reasons, the application of § 404 to instream bull-
dozing operations should ordinarily be judged on a case-by-
case basis, with reference to specific facts. It appears likely that
when the issue is approached this way, rather than through in-
vocation of broad, abstract statements, there will turn out to
be little disagreement between the Fish and Wildlife Service,
the Environmental Protection Agency, and the Corps of Engi-
neers. I hope this analysis facilitates the continued cooperation
of our respective agencies and the Corps in carrying out the
§404 program. Please let me know if we can be of further as-
sistance.
Sincerely,
Courtney M. Price
Acting Associate Administrator
and General Counsel
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July 5, 1983
MEMORANDUM
SUBJECT: Clean Water Act Jurisdiction Over Springs
in Ash Meadows, Nevada
FROM: A. James Barnes
Acting General Counsel
TO: Frank Covington, Director
Water Management Division
Region 9
Pat Alberico has referred to this office your request for guid-
ance on Clean Water Act (CWA) jurisdiction over isolated
springs in Ash Meadows, Nevada. Based on our review of the
background materials you provided and the applicable law, it
appears that CWA jurisdiction exists over the springs in ques-
tion.
Facts
Ash Meadows is an oasis area in the Mohave Desert in Nye
County, Nevada, near the California border. Because of its geo-
morphology, this area contains approximately 20 seeps and
springs (hereinafter referred to collectively as springs), which
discharge a total of approximately 17,000 acre feet of water per
year. These springs are fed by underground water. They do
not flow beyond the borders of the Ash Meadows area. Those
waters and their adjacent marshes are home to a number of
endemic plants and animal species. Ash Meadows apparently
has the highest density of endemic plants and animals of any
locality in the United States. Four species have been listed as
endangered species under the Endangered Species Act, and an-
other 14 are candidates for listing. These species, both listed
and unlisted, have been extensively studied by a large number
of scientists, including many from States other than Nevada.1
The Devil's Hole spring was declared a disjunct part of the
Death Valley National Monument by President Truman in
1952. The Bureau of Land Management maintains public use
facilities in the area for recreational visitors. At times in the
1 By letter of November 8, 1982, the Fish and Wildlife Service provided a list
of 50 scientists actively involved in research in Ash Meadows. More than half
are from States other than Nevada.
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past, water drawn from the springs has been used for agricul-
ture, largely unsuccessfully due to the high mineral content of
the water, limitations on available water quantity, and poor
soils. Preferred Equities Corporation, the present owner of a
significant portion of the water rights for discharges from the
springs, intends to use the water for a new urban develop-
ment.
Discussion
Clean Water Act jurisdiction extends, in inland waters, to the
"waters of the United States" (§502(7) of the Act), which are
defined in the applicable regulations, 40 C.F.R. § 230.3(s).2 As
nonnavigable, isolated, intrastate waters, the Ash Meadows
springs would fit the definition of waters of the United States
only if their:
use, degradation, or destruction . . . would affect
or could affect interstate or foreign commerce in-
cluding any such waters:
(i) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
(ii) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce;
or
(iii) Which are used or could be used for indus-
trial purposes by industries in interstate commerce.
Wetlands adjacent to the springs would have the same jurisdic-
tional status as the springs themselves.
Whether any particular isolated water, such as the Ash
Meadows springs, falls within the regulatory definition will, of
course, depend upon the facts of the situation. In the present
case, the record indicates that the springs in question have at-
tracted a significant number of scientists from out of State to
study the unusual flora and fauna they support, including sev-
eral endangered species. If the springs are degraded or de-
stroyed, they will no longer support the distinctive endemic
species that attract the scientists. Thus, the springs appear to
identical definitions appear at 40 C.F.R. §§122.2 and 233.3, and 33 C.F.R.
§323.2(a). Despite some wording changes over the years, intrastate waters used
by interstate travelers for recreational or other purposes have been included
since the first regulation interpreting "waters of the United States" was prom-
ulgated.
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fit the class of waters of the United States described in
§ 230.3(s)(3)(i), that is, waters the use, destruction, or degrada-
tion of which could affect interstate commerce including such
waters "which are or could be used by interstate or foreign travelers
for recreational or other purposes." (Emphasis added.)
While there is no case law directly on point, such a finding
has support in United States v. Byrd, 609 F.2d 1204 (7th Cir.
1978) and Palila v. Hawaii Dept. of Land and Natural Resources, 471
F. Supp. 985 (D. Ha. 1979), aff'd 639 F.2d 495 (9th Cir. 1981).
The Byrd case held that the use of a 2,500-acre lake by out-of-
State travelers for recreational purposes could serve as the basis
for a finding of CWA jurisdiction.3 In the Palila case, the Dis-
trict Court held that the Endangered Species Act was a proper
exercise of the commerce power because, by protecting the nat-
ural habitat of endangered species, it "preserves the possibility
of interstate commerce in these species and of interstate move-
ment of persons, such as amateur students of nature or profes-
sional scientists who come to a state to observe and study
these species . . . ."
Given the unusual collection of species directly dependent on
the Ash Meadows system of springs, and the intensive study
of species and their habitat by a significant number of inter-
state scientists, and the Federal interest reflected by listing
under the Endangered Species Act, an assertion of CWA juris-
diction over the Ash Meadows springs is consistent with the
applicable case law interpreting the Commerce Clause, the ap-
plicable CWA regulations, and the general purpose of the
CWA to restore and maintain the chemical, physical, and bio-
logical integrity of the Nation's waters (§ 101(a)). Since Con-
gress intended that CWA jurisdiction extend to the maximum
3 The opinion does not indicate the number of travelers involved.
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extent permissible under the Commerce Clause,4 it follows that
there is jurisdiction over the springs in question.5
4 Conference report, 1 Legislative History of the Water Pollution Control Act
Amendments of 1972, at 327, Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir.
1978); NRDC v. Callaway, 392 F. Supp. 685, 686 (D. D.C. 1975); Puerto Rico v.
Alexander, 438 F. Supp. 90, 95 (D. D.C 1977); Wyoming v. Hoffman, 437 F. Supp.
114 (D. Wyo. 1977).
5 While not all the springs in question actually contain listed endangered spe-
cies, the evidence suggests that the springs are so related that significant alter-
ations to the springs that do not support such species may have an effect on
those that do. In addition, the file indicates that the attraction for scientists is
not merely the endangered species, but the whole system of endemic species
dependent on the collection of springs. Therefore, I consider it appropriate to
assert jurisdiction over the collection of springs, not just the specific springs
that contain endangered species. Of course, discharges into those springs that
do not contain endangered species are probably covered by the Corps of Engi-
neers' nationwide permit for isolated waters, 33 C.F.R. § 330.4. The Corps
should be consulted on questions concerning the scope of that permit, and the
applicability of its conditions.
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January 9, 1984
MEMORANDUM
SUBJECT: EPA's Authority to Pay Expenses Associated
With Forum to Discuss Matters Pertaining
to the Pending Application to Incinerate
Chemical Wastes in the Gulf of Mexico
FROM: A. James Barnes
General Counsel
TO: Jack Ravan
Assistant Administrator for Water
Question
Is the Environmental Protection Agency (EPA) authorized to
pay the expenses of technical experts associated with the Gulf
Coast Coalition to attend a public forum pertaining to the
pending application to incinerate chemical wastes in the Gulf
of Mexico?
Answer
No.
Discussion
On October 21, 1983, EPA published notice of its tentative de-
termination to issue ocean incineration permits to Chemical
Waste Management and announced public hearings to receive
further comment. One of these public hearings was held in
Brownsville, Texas, on November 21, 1983. At this hearing the
Gulf Coast Coalition requested an opportunity for their experts
to sit as a panel to answer questions from the audience. The
Gulf Coast Coalition experts were given an opportunity to
present their views; however, rather than permit them to sit as
a panel to answer questions at this public hearing, you offered
to return to Brownsville at a later date and, to the extent per-
mitted by law, to cover the expenses of their experts to
answer any questions from the public in a separate forum that
would not be an EPA public hearing. The Coalition has now
arranged for such a forum to be moderated by a local TV sta-
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tion at which they and we would have technical experts avail-
able on the podium to answer questions from the public.1
I must conclude that paying the expenses of technical experts
associated with the Gulf Coast Coalition to participate in such
a forum is barred by § 410 of Public Law 98—45, the Agency's
1984 Appropriations Act. This section provides, in pertinent
part, as follows:
None of the funds in this Act shall be used to
pay the expenses of, or otherwise compensate,
non-Federal parties intervening in regulatory or
adjudicatory proceedings.
The ocean incineration permit proceeding is a regulatory pro-
ceeding under the Marine Protection, Research, and Sanctuaries
Act (MPRSA). The Gulf Coast Coalition is an interested party
that has participated actively in this proceeding. I understand
that two of the six experts the Coalition has chosen for the
public forum presented statements at the previous public hear-
ing on this permit. All of the six experts are clearly associated
with the Gulf Coast Coalition and thus could not be consid-
ered disinterested technical experts. The Gulf Coast Coalition
and the technical experts who are their spokespersons would
be, accordingly, considered intervenors within the meaning of
§ 410, and the Agency is not authorized to expend funds on
their behalf. The fact that the Coalition's public forum is not
an EPA public hearing does not change this result, since the
Coalition is clearly an intervenor in the regulatory permit pro-
ceeding that is the subject of the public forum.
1 Chemical Waste Management, the applicant in the ocean incineration permit
proceeding, and At-Sea Incineration, another incinerator company, have request-
ed to participate in this forum. Their participation is not relevant to the legal
issue discussed in this memorandum.
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May 11, 1984
MEMORANDUM
SUBJECT: State National Pollutant Discharge
Elimination System Control Over Forest
Service Property and Operations
FROM: A. James Barnes
General Counsel
TO: Alvin L. Aim
Deputy Administrator
We have looked into the question of whether the Environmen-
tal Protection Agency (EPA) can approve a State to administer
the National Pollutant Discharge Elimination System (NPDES)
permit program under the Clean Water Act (CWA), but reserve
for Federal regulation discharges from facilities or operations
under the ownership or control of the Forest Service. Our con-
clusion is that this would not be authorized under the CWA.
Section 402(b) of the CWA authorizes States to assume con-
trol of the NPDES program for waters within their jurisdiction
in lieu of Federal EPA control. Section 402(c) requires that,
once the Administrator approves a State request for NPDES
authority, EPA must suspend its issuance of NPDES permits as
to those waters subject to the State program. EPA has consist-
ently interpreted this provision to preclude EPA approval of
partial State program requests whereby the State would issue
permits for some categories of discharges and EPA would issue
permits for the remainder. The reasoning is that if EPA must
suspend issuance "for those navigable waters subject to the
[State's] program," it follows that the State must issue all per-
mits for discharges into those waters. The legislative history
supports this reading.
In addition, in 1977 Amendments to the CWA, Congress
explicitly authorized approved NPDES States to assume per-
mitting control over Federal facilities. Limited Presidential ex-
exemptions for Federal facilities from State requirements are
authorized under §313(a). These may be granted either for a
particular source or, through regulations, for a class or category of
sources. However, in both cases the exemption is predicated on
a showing of paramount interest. In addition, class exemptions
are limited to property "owned or operated by the Armed
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Forces of the U.S. (including the Coast Guard) or by the Na-
tional Guard of any state and which are uniquely military in
nature." Because § 313 provides for such limited class exemp-
tions, which by definition would not include Forest Service
property or operations, it is reasonable to infer that such a
Forest Service exemption was not intended by the CWA.
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February 8, 1985
MEMORANDUM
TO: Josephine S. Cooper
Assistant Administrator for External Affairs
FROM: Gerald H. Yamada
Acting General Counsel
SUBJECT: Issues Concerning the Interpretation
of Section 404(f) of the Clean Water Act
You have asked for guidance clarifying the application of
§ 404(f) of the Clean Water Act (CWA) and its implementing
regulations to the expansion or intensification of farming oper-
ations.1 This memorandum provides general guidance on the
interpretation of the applicable law and regulations as they
relate to that topic. It is intended to assist the Environmental
Protection Agency (EPA) and Corps of Engineers personnel in
understanding and consistently applying § 404(f) and in ex-
plaining that section to the public.
I. General
At the outset, it should be stressed that § 404 jurisdiction ex-
tends only to point source discharges of dredged or fill materi-
al into waters of the United States. § 404(a). Unless an activity
involves such discharges into such waters, it is not subject to
§ 404, and there is no need to consider the applicability of
§ 404(f). Thus, activities confined to those portions of a proper-
ty that have been determined by EPA or the Corps of Engi-
neers, as appropriate, not to be waters of the United States do
not need a § 404 permit, regardless of what the activities are.
If an activity does involve a discharge of dredged or fill ma-
terial into waters subject to the Act, then it is relevant to con-
sider whether the activity is exempt under § 404(f). Section
404(f)(l) states that:
Except as provided in paragraph (2) of this sub-
section, the discharge of dredged or fill material
[from activities specified in (A) through (F)] is not
prohibited by or otherwise subject to regulation
under this section or section 301(a) or 402 of this
1 EPA is charged with the ultimate administrative responsibility for interpreting
§ 404(f). See Op. Att'y. Gen., Sept. 5, 1979.
144
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Act (except for effluent standards or prohibitions
under section 307).
Section 404(f)(2), commonly referred to as the "recapture provi-
sion," provides:
Any discharge of dredged or fill material into the
navigable waters incidental to any activity having
as its purpose bringing an area of the navigable
waters, into a use to which it was not previously
subject, where the flow or circulation of navigable
waters may be impaired or the reach of such
waters be reduced, shall be required to have a
permit under this section.
Thus, in order to conclude that a given discharge activity is
exempt from regulation, one must determine not only that it
falls within § 404(f)(l), but also that it is not recaptured under
§404(f)(2).
Discharges which are not exempt under § 404 must be evalu-
ated through the appropriate permit process. If the permit
issuer determines the discharges comply with the § 404(b)(l)
guidelines and other applicable criteria, they may be authorized
by a suitably conditioned permit.
Section 404(f) was enacted in 1977 as part of the mid-course
corrections to the CWA and in response to public reaction to
the Corps' expansion of its § 404 jurisdiction following the de-
cision in NRDC v. Callaway, 392 F. Supp. 685 (D. D.C. 1975).
In very general terms, the legislative history indicates that
§ 404(f) reflects a tradeoff between activities and geographic ju-
risdiction, that is, a decision by Congress to explicitly exempt
certain activities that it never intended to regulate or that are
sufficiently minor so as not to require scrutiny through the
permit process, while maintaining the program's broad geo-
graphic jurisdiction because of the latter's importance to the
purposes of the Act. However, as noted in the preamble to
EPA's first proposed regulations implementing § 404(f), 44 Fed.
Reg. 34263 (June 14, 1979), the interpretation of the section is
exceptionally complex, because of the need to work with the
language of the statute and the extensive but sometimes am-
biguous or inconsistent legislative history.
EPA first proposed regulations interpreting § 404(f) on June
14, 1979. After consideration of the numerous comments and
following close consultation with the Corps, EPA published
final §404(f) regulations on May 19, 1980, as part of its "Con-
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solidated Permit Regulations." 40 C.F.R. § 123.91. Both the pro-
posed and final regulation were accompanied by extensive pre-
ambles. On July 22, 1982, the Corps of Engineers incorporated
EPA's § 404(f) regulations into its own permit regulations (at
33 C.F.R. 323.4) verbatim, except for (with EPA's concurrence)
small changes to the definition of "minor drainage" and to the
description of facilities associated with irrigation ditches.2 EPA
recodified its 1980 §404(f) regulations as 40 C.F.R. 233.35 on
April 1, 1983. References in this memorandum will be to 40
C.F.R. 233.35.
On its face, §404(f) does not provide a total, automatic ex-
emption for all activities related to agriculture. Rather,
§ 404(f)(l) exempts only those agricultural activities listed in
paragraphs (A) through (F), namely certain "normal" farming
practices (§ 404(f)(l)(A)), certain ditching activities (§404
(f)(l)(Q), farm roads meeting specified criteria (§ 404(f)(l)(E)),
and other discharges covered by best management practices
(BMPs) developed through an approved § 208(b)(4) program
(§ 404(f)(l)(F)).3 In addition, even discharges which are associ-
ated with the activities listed in § 404(t)(l) are not eligible for
the exemption if they involve toxic materials4 or if they are
recaptured by §404(f)(2).
The legislative history leaves little doubt that Congress in-
tended to limit the environmental effect of the exemptions by
defining them narrowly and by including § 404(f)(2).5 As Sena-
2 The amended irrigation ditch provision was challenged in NWF v. Marsh,
D.D.C., Civ. No. 82-3632. As part of the settlement in that case, EPA and the
Corps agreed to the proposal of new wording. Final regulations reflecting the
settlement were published on October 5, 1984.
3 As noted in the preamble to the 1979 proposed regulations, if § 404(f)(l)(A)
covered all kinds of fanning activities, there would be no need to provide for
ditches, ponds, and roads in § 404(f)(l)(C) and (E). 44 Fed. Reg. 34264.
4 Most farming operations will probably not involve discharges containing toxic
pollutants. However, should the soils to be discharged contain substances such
as pesticides listed as toxic pollutants pursuant to § 307, a permit would be
required. See 40 C.F.R. 233.35(b).
5 This legislative history was relied on by the principal reported court decisions
construing §404(f), Avoyclks Sportsman's League v. Alexander, 473 F. Supp. 525,
535-36 (W.D. La. 1979) and Amyelles Sportsman's League v. Marsh, 715 F.2d 897
(5th Cir. 1983). The district court held that the exemptions should be narrowly
construed and that under § 404(f)(l)(A) only activities that are part of an on-
Continued
146
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tor Muskie put it, "New subsection 404(f) provides that Feder-
al permits will not be required for those narrowly defined activities
that cause little or no adverse effects either individually or cumulatively."
3 Legislative History of the Water Pollution Control Act
Amendments of 1972, at 474. (Emphasis added.) See also state-
ments by Rep. Harsha, id. at 420, and Senator Wallop, id. at
530. The numerous statements concerning what § 404 did not
exempt are also telling. For example. Senator Muskie explained,
"[T]he exemptions do not apply to discharges that convert ex-
tensive areas of water to dry land or impede circulation or
reduce the reach or size of the water body." 3 Leg. Hist. 474;
see also statement of Senator Baker, id. at 523. As Senator Staf-
ford stated, "Permits will continue to be required for those
farm, forestry, and mining activities that involve the discharge
of dredged or fill material that connect [sic—presumably in-
tended to be 'convert'] water to dry land including, for exam-
ple, those occasional farm or forestry activities that involve
dikes, levees or other fills in wetland or other waters." 3 Leg.
Hist. 485. See also Senate Report, 4 Leg. Hist. 710 (permit
review necessary for discharges to convert a hardwood swamp
to another use through dikes or drainage channels).6
going agricultural or ongoing silvicultural operation were intended to be ex-
empted. (This holding preceded the regulations, and hence simply interpreted
the statute, without weight being given to EPA's regulations interpreting the
statute.) On appeal, the Fifth Circuit affirmed the district court's result, but
found it unnecessary to decide the challenge to the district court's limitation of
§ 404(f)(l)(A) to "established" operations since application of § 404(f)(2) would
lead to the same result.
The legislative history cited in this memorandum has also been relied on in
two recent unreported decisions. United States v. Huetmer, No. 83-3140 (7th Cir.
Jan. 11, 1985), United States v. Aters, Civ. S-84-1276 RAR (E.D. Cal. Jan. 15,
1985).
6 There has been a contention that the references in the legislative history im-
plying that agricultural activities as a class are best regulated by the States (i.e.,
not by the Corps) supports a broad exemption. However, such references are
either to the "Bentsen" amendment, which was rejected, or to activities to be
addressed under § 208 plans. When it authorized § 208(b)(4) programs as part
of the 1977 amendments. Congress assumed that States would use such pro-
grams to control "quasi-point source" silvicultural or agricultural activities in
order to obviate the need for a Federal permit. See, e.g., statement by Senator
Stafford, 4 Leg. Hist. 911-912. However, to date no State has an approved
§ 208(b)(4) plan that would qualify for exemption any agricultural activities not
otherwise enumerated in § 404(f)(l)(A)-(E)
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Thus, in determining whether discharges associated with ex-
pansion or intensification of farming in waters of the United
States are exempt, the issue is whether the discharge activities
in question are among those specifically listed in §§ 404(f)(l)(A)
through (F) and, if so, whether § 404(f)(2) recaptures them. The
next section of this memorandum discusses pertinent points re-
lating to the specific provisions of § 404(f)(l), as interpreted by
existing regulations.
H. Section 404(f)(l)(A)-(F)
Section 404(f)(l)(A). This subsection lists discharges of dredged or
fill material from "normal farming, silviculture, and ranching
activities, such as plowing, seeding, cultivating, minor drainage,
harvesting for the production of food, fiber and forest prod-
ucts, or upland soil and water conservation practices." The im-
plementing regulation quotes this language, and then explains
that § 404(f)(l)(A) is limited to activities which are part of an
"established (i.e., ongoing) farming, silviculture, or ranching op-
eration," gives examples of what is and is not "established,"
and defines the listed activities (see 40 C.F.R. 233.35(a)(l)(i) and
(ii)). This "established" requirement is intended to reconcile the
sentiments in the legislative history that although § 404 should
not unnecessarily restrict a farmer in continuing to farm his
land,7 discharge activities which could destroy wetlands should
be regulated.8
Several points should be kept in mind in deciding whether
this "established" requirement is met in a given case. First, to
fall within § 404(f)(l)(A), the specific cultivating, seeding, plow-
ing, etc., activity need not itself have been ongoing as long as it
is introduced as part of an ongoing farming operation. For ex-
ample, a farmer may decide to initiate "minor drainage" for
the emergency removal of blockages in an area already being
farmed (see 40 C.F.R. 233.35(a)(l)(iii)(C)(l)(iv), definition of
"minor drainage"). Similarly, if crops have been grown and
''See, e.g., statement of Rep. Stump, 3 Leg. Hist. 418.
8 See supra. An assumption in both the regulation and the legislative history is
that ongoing farming operations normally are not carried on in waters of the
United States (unless perhaps specializing in a wetland crop like rice or cran-
berries), and hence that ordinarily there is little basis or purpose to apply
§ 404 to ongoing operations. See, e.g., statement of Senator Muskie, 4 Leg. Hist.
869.
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harvested on a regular basis, the mere addition of a cultivating
step to that farming operation is not inconsistent with the oper-
ation being an "established" one for purposes of § 404(f)(l)(A).
(Of course, the mere fact that there is an "established" oper-
ation under § 404(f)(l)(A) does not foreclose the possibility of
recapture under § 404(f)(2).)
Second, the thrust of the last three sentences in § 233.35
(a)(l)(ii) is to ensure that the "established" requirement is used
neither too restrictively (e.g., to block use of a conventional ro-
tational cycle) nor too loosely (e.g., to allow the fact that an
area has been timbered or farmed at any point in history to
automatically make it an ongoing farm or forest operation). To
guard against the latter, the regulation sets out two alternative
tests to be used to determine whether there is no longer an
ongoing operation on a previously farmed area, i.e., whether a
new, nonfarming use has taken place in the interim or whether
the area is no longer in a condition such that farming could
resume without hydrologic modification. See United States v.
Akers, supra, for an example of application of this "established"
requirement.
The regulations (and preamble) define in some detail the
specific "normal" activities listed in § 404(f)(l)(A). Three points
may be useful in the present context. First, as explained in the
1979 preamble, the words "such as" have been interpreted as
restricting the section "to the activities named in the statute and
other activities of essentially the same character as named,"
and "preclude the extension of the exemption ... to activi-
ties that are unlike those named." (Emphasis added.) 44 Fed.
Reg. 34264. Second, plowing is specifically defined in the regu-
lations not to include the redistribution of surface materials by
grading in a manner which converts wetland areas to uplands
(see 40 C.F.R. 233.35(a)(l)(iii)(D)).
The third point relates to the definition of "minor drainage."
Because of the numerous statements in the legislative history
that draining wetlands was not exempt under § 404(f),9 and
because § 404(f)(l)(C) makes it clear that discharges from the
construction of drainage ditches are not exempt, the "minor
drainage" definition was carefully crafted to describe very spe-
cific drainage activities that were identified and judged through
rulemaking to be necessary components of normal operations
9See, e.g., Senate Report, 4 Leg. Hist. 709, as well as the references cited supra.
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but to have minimal adverse effects. Thus, subparagraphs (l)(ii)
and (l)(iii) of the minor drainage definition are limited to dis-
charges associated with continuation of established wetland crop
production (see 40 C.F.R. 233.35(a)(l)(iii)(Q). Although those
activities may involve plugging ditches and rebuilding small
rice levees, for example, paragraph (2) of the minor drainage
definition stresses that the term "does not include the con-
struction of any canal, ditch, dike or other waterway or struc-
ture which drains or otherwise significantly modifies a ...
wetland or aquatic area constituting waters of the United
States."
Section 404ff)(l)(B). This subsection covers discharges resulting
from maintenance, including emergency reconstruction of dam-
aged parts, of currently serviceable structures. The regulation,
after repeating the statutory language, states that "mainte-
nance" does not include changes in character, scope, or size of
the original fill design, and requires that emergency work take
place a reasonable time after damage occurs (see 40 C.F.R.
233.35(a)(2)). Thus, discharges to increase the height or length
of a dike are not covered by this section.
Section 404(f)(l)(C). The statutory language applies only to the
"construction or maintenance of farm or stock ponds or irriga-
tion ditches, or the maintenance of drainage ditches."
A brief history of the regulations interpreting this provision
is in order, as they have been modified several times insofar as
they relate to irrigation ditches. EPA's initial regulations (May
19, 1980) supplemented the statutory language by specifying
that connections and certain other work related to irrigation
ditches were included in the exemption.10 In July 1982, EPA
authorized the Army to replace that supplementary language
with a simplified wording that EPA felt was consistent with its
10A simple connection of an irrigation return or supply ditch to waters of the
United States and related bank stabilization measures are included within this
exemption. Where a trap, weir, drain, wall, jetty or other structure within
waters of the United States which will result in significant discernible alter-
ations to flow or circulation is constructed as part of the connection, such con-
struction requires a 404 permit.
The rationale for this expansion was that all irrigation ditches need connec-
tions in order to function. Unless the connections were exempted, too, the pro-
vision would have no meaning.
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interpretation.11 Thus, §323.4(a)(3) of the Corps' July 22, 1982,
regulations included the following statement:
. . . Discharges associated with irrigation facilities
in the waters of the U.S. are included within the
exemption unless the discharges have the effect of
bringing these waters into a use to which they
were not previously subject and the flow or circu-
lation may be impaired or reach reduced of such
waters.
This latter language was challenged in NWF v. Marsh as im-
properly expanding the statutory exemption, and new, clearer
language was developed under the settlement agreement. Fol-
lowing rulemaking, EPA and the Corps approved the following
substitute language, which was published as a final regulation
effective October 5, 1984:
. . . Discharges associated with siphons, pumps,
headgates, wingwalls, weirs, diversion structures
and other such facilities as are appurtenant and
functionally related to irrigation ditches are includ-
ed in this exemption.
The preamble to the 1984 regulation explains that the new
wording is intended to clarify the type of irrigation structures
involved.
"Irrigation" discharges that occurred while the July 22, 1982,
regulations were in effect probably should, as an equitable
matter, be evaluated under the 1982 language, even though
EPA's 1980 language remained on the books; however, the
1982 language must of course be interpreted in light of the
statutory language, EPA's basis for approving the change, and
the explanation accompanying the 1984 clarification. Thus, even
under the Corps' 1982 regulation, exempted irrigation facilities
must at a minimum be appurtenant to irrigation ditches.
Another issue that has been raised is the applicability of
§ 404(f)(l)(C) to construction of ditches that can serve as either
irrigation or drainage ditches. The regulations and preamble do
not explicitly address this issue. However, since the statute
clearly does not exempt the construction of drainage ditches,12
1 * See Letter from Anne Gorsuch to Senator Hart, dated Jan. 5, 1982.
12 It does exempt maintenance of drainage ditches. Maintenance includes removal
of accumulated debris and silt.
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and the legislative history indicates that limitation was deliber-
ate and important, it follows that dual function ditches13
should be considered drainage ditches, i.e., their construction is
not exempt.
One final point should be made about § 404(f)(l)(C). Because
neither that section nor the implementing regulations have an
"ongoing" requirement, it is immaterial for purposes of
§ 404(f)(l)(C) whether an irrigation ditch waters an area that
was previously irrigated or indeed whether the area was previ-
ously farmed at all (although such facts could be highly rele-
vant under § 404(f)(2)).
Section 404(f)(l)(D). This section relates only to construction of
temporary sedimentation basins on construction sites, not to
the actual building or other structure being constructed.
Section 404(f)(l)(E). This section covers farm, forest, and tempo-
rary mining roads, provided they are:
constructed and maintained in accordance with
best management practices to assure that flow and
circulation patterns and chemical and biological
characteristics of the navigable waters are not im-
paired, that the reach of the navigable waters is
not reduced, and that any adverse effect on the
environment will be otherwise minimized.
EPA's regulations translate these statutory criteria into a
number of BMPs (see 40 C.F.R. 233.35(a)(5)). If a farm road is
built in accordance with those BMPs (and in the case of a
State § 404 program, with any additional BMPs specified by
the State), it is deemed to meet the criteria of § 404(f)(l)(E).
Section 404(f)(l)(F). As discussed above, this provision is designed
to cover activities controlled under an approved § 208(b)(4)
program, and therefore is inoperative where a State does not
have an approved § 208(b)(4) program. To date, no State has
such a program.
13 Of course, a ditch is not considered "dual function" in this sense if the
water it carries away is not water which contributes to the maintenance of
waters of the United States (e.g., wetlands) but rather is simply irrigation
return flow.
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m. Section 404(f)(2)
As noted above, if a discharge activity falls within the scope
of the specific § 404(f)(l)(A)-(F) subsections just described but
does not pass muster under § 404(f)(2), it is not exempt from
regulation. The applicable regulations, 40 C.F.R. 233.35(c), pro-
vide:
Any discharge of dredged or fill material into
waters of the United States incidental to any of
the activities identified in [(f)(l)(A)-(F)] must have
a permit if it is part of an activity whose purpose
is to convert an area of the waters of the United
States into a use to which it was not previously
subject, where the flow or circulation of waters of
the United States may be impaired or the reach of
such waters reduced. Where the proposed dis-
charge will result in significant discernible alter-
ations to flow or circulation, the presumption is
that flow or circulation may be impaired by such
alteration. (Emphasis added.) [Note: For example, a
permit will be required for the conversion of a
cypress swamp to some other use or the conver-
sion of a wetland from silvicultural to agricultural
use when there is a discharge of dredged or fill
materials into waters of the United States in con-
junction with construction of dikes, drainage ditch
or other works or structures used to effect such
conversion. A discharge which elevates the bottom
of waters of the United States without converting
it to dryland does not thereby reduce the reach
of, but may alter the flow or circulation of,
waters of the United States.]
Section 404(f)(2) has two requirements: the "new use" re-
quirement, and the "reduction in reach/impairment of flow or
circulation" requirement. Although both requirements must be
met, it is the interpretation of the first that raises the most
questions.
The legislative history discussed earlier leaves no doubt that
the destruction of the wetland character of an area (i.e., its
conversion to uplands) is a change in use of the waters of the
United States, and by definition also a reduction in their reach,
within the meaning of § 404(f)(2). The fact that some farming
operations may have previously been conducted in the wetland
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without altering its wetland status, or that some new operation
could theoretically be conducted without a discharge, does not
mean that discharges associated with an operation that does
convert the wetland are exempt. Conversely, if there is already
an established farming operation in a wetland, any discharges
resulting from farming activities listed in the regulation which
do not convert the wetland to upland are exempt, whether or
not there is an intensification of farming, change in crops, etc.
Similarly, discharges from the construction of irrigation
ditches14 are exempt, even if they affect a wetland, as long as
they do not convert the wetland to upland, bring it into initial
farming use, or otherwise bring a water of the United States
into a new use, and reduce or impair its reach, flow, or circu-
lation.
To give some concrete examples, if there is an established
hay harvesting operation in a wetland, discharges associated
with the activities listed in § 404(f)(l)(A) would not need a
permit, even if new agricultural crops were introduced, as long
as the wetland was not destroyed. If annual "upland" crops15
could be grown in the wetland (during the dry season, pre-
sumably) without such an effect, their introduction would not
per se eliminate the exemption. Conversely, if the listed farming
activities are employed to grow a perennial upland crop that
cannot survive in a wetland, it follows that establishing that
crop so that it survives from year to year will require effec-
tively eliminating the wetland; the associated discharges would
not be exempt (because elimination of the wetland would be
both a "new use" and a reduction in reach).
Finally, it should be noted that in order to trigger the recap-
ture provisions of § 404(f)(2), the discharges themselves do not
need to be the sole cause of the destruction of the wetland or
other change in use or sole cause of the reduction or impair-
ment of reach, flow, or circulation of waters of the United
States. Rather, the discharges need only be "incidental to" or
"part of" an activity that is intended to or will forseeably
14 Per discussion above, this means ditches strictly for irrigation, not dual
function ditches.
15 Such labels should be used cautiously in this context. The controlling factor
is whether establishing the crop is compatible with the area's remaining a wet-
land, not what the plant label is.
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bring about that result. Thus, in applying §404(f)(2), one must
consider discharges in context, rather than in isolation.
If additional questions arise concerning the interpretation of
§ 404(f) that are not addressed by this memorandum, please
contact me or Cathy Winer of my staff.
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PESTICIDES AND TOXIC
SUBSTANCES
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January 3, 1984
MEMORANDUM
SUBJECT: Tolerance Issues Relating to Ethylene Dibromide
FROM: A. James Barnes
General Counsel
THRU: Alvin L. Aim
Deputy Administrator
TO: William D. Ruckelshaus
Administrator
This memorandum provides a summary of the legal background
and discussion of a number of issues involved in the
cancellation/suspension of the pesticide ethylene dibromide
(EDB). Specifically, it describes the relationship between the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and
the tolerance provisions of the Federal Food, Drug, and Cos-
metic Act (FFDCA), details the procedures which the Environ-
mental Protection Agency (EPA) follows in setting tolerance,
and discusses certain contemplated tolerance actions for EDB
and the legal and policy implications of such actions.
Legal Background
The sale, distribution, and use of pesticides in the United
States is governed directly by the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (FIFRA), 7 U.S.C. 136, et seq.,
and is also influenced heavily by the Federal Food, Drug, and
Cosmetic Act (FFDCA), 21 U.S.C. 301, et seq. FIFRA requires
that all pesticides that are sold and distributed in the United
States must be registered in accordance with the statutory
standard for registration set forth in FIFRA. That standard re-
quires, among other things, that the pesticide perform its in-
tended function without causing "unreasonable adverse effects
on the environment," (FIFRA, § 3(c)(5)), a criterion that takes
both risks and benefits into account. Under § 6 of FIFRA, the
Administrator may cancel the registration of a use of a pesti-
cide (or require modifications in the terms and conditions of
registration in lieu of cancellation) whenever he determines that
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the use of the pesticide no longer satisfies the statutory stand-
ard for registration.
If a pesticide is to be sold and used in the production or
storage of crops, meat, milk, or eggs, not only must the pesti-
cide be registered for the particular use under FIFRA, but, for
practical purposes, there also must exist a FFDCA tolerance
(maximum allowable limit of pesticide residue) or an exemption
from the requirement of a tolerance for each individual crop or
edible animal product on which it will be used or may be
present because of another approved use. The FFDCA author-
izes the establishment of tolerances and exemptions from toler-
ances for residues of pesticide chemicals in or on raw agricul-
tural commodities pursuant to § 408, and the promulgation of
food additive regulations for pesticide residues in processed
food under § 409 of the Act. Without such tolerances, exemp-
tions from tolerances, or food additive regulations (sometimes
also referred to as "tolerances"), a food is "adulterated" under
§ 402 of the FFDCA, and hence may not legally move in inter-
state commerce.
EPA regulations (40 C.F.R. 162.7(d)(3)(v) and 40 C.F.R.
162.18-4(a)(4)) require that before a pesticide may be registered
for a food or feed use, there exist appropriate tolerances and
food additive regulations for the pesticide residues. As a practi-
cal matter, the agricultural community would be unlikely to
use a pesticide if the crop would thereby be legally adulterated
under the FFDCA. Under the Reorganization Plan that estab-
lished EPA in 1970, the authority to set tolerances for pesticide
chemicals in raw agricultural commodities and processed food
under §§ 408 and 409, respectively, of the FFDCA was trans-
ferred from the Food and Drug Administration (FDA) to EPA.
FDA retains the authority to enforce the tolerance and food
additive provisions under this plan. Tolerances are set by infor-
mal rulemaking, and may then be challenged in formal adjudi-
catory hearings.
Section 408 of the FFDCA
Under FFDCA, § 402, a raw agricultural commodity is adulter-
ated if it contains a pesticide residue not authorized by a
FFDCA § 408 tolerance or an exemption from the requirement
of a tolerance. A tolerance (or exemption from the requirement
of a tolerance) under § 408 can be issued only if EPA finds
that the establishment of the tolerance or exemption would
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"protect the public health." In addition to considering the risks
posed by the residue levels of the pesticide, the Agency must
consider, among other relevant factors, the necessity for the
production of an adequate, wholesome, and economical food
supply, and the other ways in which the consumer may be af-
fected by the pesticide. Thus, in essence, § 408 of the FFDCA
gives the Agency the authority to balance risks against benefits
in determining appropriate tolerance levels.
Section 409 of the FFDCA
FFDCA § 402 states that food is adulterated if it contains any
food additive (including any pesticide residues) not authorized
by a § 409 food additive regulation. An important exception to
this provision is that a processed food containing pesticide resi-
dues resulting from the "carryover" from treatment at the raw
agricultural commodity stage is not regarded as adulterated if
the residue levels in such a food are no greater than that al-
lowed by the § 408 tolerance established for the raw agricultur-
al commodity. In order to establish a food additive regulation
for a processed food under § 409, the Agency must make a
finding that the pesticide "may be safely used" (§409(a)). Rel-
evant factors in this safety determination include (1) the prob-
able consumption of the pesticide or metabolites; (2) the cumu-
lative effect of the pesticide in the diet of man or animals,
taking into account any related substances in the diet; and (3)
appropriate safety factors to relate the animal data to the
human risk evaluation.
A food additive regulation under § 409 may not be estab-
lished for a carcinogenic substance because of the "Delaney
Clause" (§ 409(c)(3)(A)), which provides that no additive is
deemed safe if it induces cancer when ingested by man or
animal. Note that the Delaney Clause does not apply to the
issuance of tolerances for pesticide chemicals on raw agricultur-
al commodities pursuant to § 408 of the FFDCA.
Determination of Tolerance Levels Under §§408 and 409
Data Review and Safety Determinations
The system for setting tolerances entails the review of residue
chemistry and toxicology data by EPA. The required data are
essentially the same as those necessary to support the registra-
tion of a pesticide product used on food, i.e., safety data
(acute, subchronic, and chronic effects), analytical method for
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determining residues, residue studies, chemical composition and
identity, amount, frequency, and time of application. To be ac-
ceptable, a tolerance level must be both high enough to cover
residues likely to be left when the pesticide is used properly,
and low enough to be safe, hi making its safety determination,
the Agency estimates the level of daily exposure that is not
expected to cause appreciable risks during the human lifetime.1
If toxicity data indicate that the pesticide is an oncogen, the
Agency uses a linear dose-response model to estimate the
human risk at anticipated levels of exposure. This risk is then
compared with benefits to arrive at an unreasonable adverse
effects determination. This type of analysis only applies to
§408 tolerances because the Delaney Clause in §409 prohibits
issuing food additive regulations allowing residues of oncogens
in processed food.
Tolerance-Setting Process
Under § 408, a registrant or applicant can file a petition pro-
posing the issuance of a tolerance or an exemption from the
requirement of a tolerance or the Agency can initiate a toler-
ance rule on its own or at the request of any interested
person, In situations where a registrant or applicant files a pe-
tition requesting a tolerance, the Agency publishes in the Fed-
eral Register a very brief Notice of Filing (statement that toler-
ance has been proposed and analytical method) within 30 days
of filing. As required by the statute, the Agency requests at
this time a certification of usefulness of the pesticide from the
Secretary of Agriculture. The statute provides that the person
filing the petition or the Agency can request that the petition
1 With regard to risks other than cancer, this level is called the acceptable
daily intake (ADI), and is calculated by dividing the no-observed-effect level
(NOEL) (the dosage level at which any effects observed at higher levels are
absent) by appropriate safety factors (usually 100, although 10 is used for re-
versible effects such as cholinesterase inhibition). The theoretical maximum res-
idue contribution (TMRC), which represents the total amount of pesticide resi-
due that a human could ingest by consuming food covered by proposed and
existing tolerances, is then calculated by multiplying the tolerance level for
each food times the percentage of the food in the human diet, and totalling
the values for all foods with tolerances for the given chemical. The TMRC is
then compared with the ADI, and the tolerance is established if the TMRC is
less than the ADI. (In certain situations where the TMRC is greater than the
ADI, the Agency has approved tolerances based on a determination that the
actual human exposure is not likely to exceed the ADI.)
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be referred to an advisory committee. If no request for adviso-
ry committee review is received (or, if such a request is re-
ceived, the Agency has received the report of the committee
and determines to issue the rule), the Agency publishes a final
tolerance rule in the Federal Register. This document contains a
discussion of the test data supporting the safety determination
and the conclusions of the Agency regarding the safety of the
residues (including an estimation of the percentage of the ADI
utilized), discusses any regulatory actions that the Agency has
taken regarding the pesticide, and states the Agency's determi-
nation that the issuance of the tolerance rule meets the statu-
tory standard. A hearing on the final tolerance rule can be re-
quested within 30 days of publication of the final rule.2
For § 409 food additive regulations, the Agency publishes in
the Federal Register, within 30 days after filing, notice that a
request for a food additive regulation has been received, or
publishes a proposal on its own initiative. If no objections are
received with regard to the proposal within 30 days after pub-
lication of the proposed rule, the Agency may establish the
final rule by publication in the Federal Register.3 Any person
adversely affected by the final rule may request a public hear-
ing within 30 days after publication of the regulation. If a
hearing is requested, the Administrator may stay the effective-
ness of the final rule.
The procedures for amending or revoking tolerances or ex-
emptions from the requirement of a tolerance conform to the
procedures provided above for the promulgation of tolerances
and food additive regulations, pursuant to §§408 and 409. See
2 When the Agency is the initiator of the tolerance rule, a proposal is pub-
lished in the Federal Register with a discussion of the supporting test data and
the ADI calculations. The statute provides a 30-day period for the registrant or
applicant to submit a request that the proposal be referred to an advisory
committee. If no request for an advisory committee review is received, the
Agency can publish the final regulation. When a request for an advisory com-
mittee review is received, the Agency may publish the final regulation within
30 days after receipt of the advisory committee report. Any person adversely
affected by the regulation may request a public hearing within 30 days after
publication of the regulation by "specifying with particularity the provisions of
the regulation deemed objectionable, stating reasonable grounds therefor."
§408(d)(5).
3 The degree of detail in the proposal and final rule for §409 regulations
tracks the scheme set forth above for the §408 tolerance rules.
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attached memorandum. The only practical difference between
establishing tolerances and revoking such rules is that in the
case of the revocation actions, the Agency is required to send
each revocation rule to the Office of Management and Budget
(OMB) for review pursuant to § 3 of Executive Order No.
12291, and must provide a certification that the revocation
action meets the requirements of the Regulatory Flexibility Act,
5 U.S.C. 601-12, 94 Stat. 1164; for the promulgation of toler-
ance rules, the Agency has been granted a blanket exemption
from OMB review, and has published a generic certification
statement stating that the establishment of tolerances meets the
requirements of the Regulatory Flexibility Act. 46 Fed. Reg.
24950 (May 4, 1981). The necessity to comply with OMB
review requirements and to provide a Regulatory Flexibility Act
certification for the revocation action could lengthen the time
required for the issuance of a revocation rule over that re-
quired for the establishment of a tolerance.
FDA Enforcement Authority and Action Levels
The Food and Drug Administration has the responsibility for
enforcing the tolerances promulgated by EPA, and will seize an
adulterated commodity or processed food if the pesticide resi-
dues exceed the tolerance, food additive regulation, or "action
level." The term "action level" refers to the level of contami-
nation at which a food will be deemed to be adulterated, in
situations in which a tolerance or exemption has not been es-
tablished or has been revoked. 21 C.F.R. 109.4(b). FDA derives
its authority to set such action levels from the prosecutorial
discretion conferred by § 306 of the FFDCA, together with the
general adulteration provision of § 402(a) and the authority to
promulgate regulations for the efficient enforcement of the Act
pursuant to § 701(a): §§ 408 and 409 do not directly govern
FDA's authority to set action levels.
In a situation where a tolerance or food additive regulation
does not exist to cover residues resulting from the use of a
pesticide, an action level may be established by FDA, based on
the recommendations of EPA, pursuant to criteria set forth in
21 C.F.R. 109.6. These criteria include a finding that the sub-
stance cannot be avoided by good manufacturing practice, and
that the action level established is sufficient for the protection
of the public health, taking into account the extent to which
the presence of the substance cannot be avoided and the other
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ways in which the consumer may be affected by the same or
related substances.
An action level is effective once established by FDA; the
regulations in 21 C.F.R. 109.4(b)(2) do, however, require that a
notice of the establishment of the action level be published in
the Federal Register as soon as practicable. This notice must
state that the material supporting the action level is on file
with the FDA, and must invite public comment on the action
level. Any interested person may petition the FDA to set a
different action level under the procedures set forth in 21
C.F.R. Part 10; the action level can be challenged in court
under the provisions of the Administrative Procedure Act, 5
U.S.C. 702, 704, 706. An action level may be changed at any
time if the protection of the public health so requires. 21
C.F.R. 109.4(b).4
Agency Actions Concerning EDB
Suspension and Cancellation Actions Under FIFRA
On September 28, 1983, the Administrator issued an emergency
suspension order for the soil fumigation use of EDB, as well as
a notice of intent to cancel registration of that use and the
other major uses of the chemical, namely fumigation of stored
grain, spot fumigation of grain milling equipment, quarantine
fumigation of citrus and tropical fruit, and felled log fumiga-
tion. 48 Fed. Reg. 46228, 46234 (Oct. 11, 1983). This action
was based on a determination that the carcinogenic, mutagenic,
and adverse reproductive risks posed by the use of EDB out-
weighed the benefits associated with the use of the chemical.
Requests for an adjudicatory hearing to challenge the proposed
cancellation of EDB for all the major uses listed above have
been filed by registrants and users.
Based on new food residue data received since the issuance
of the notice of intent to cancel, the Agency is currently con-
sidering the possibility of issuing an emergency suspension
order for the grain uses (fumigation of stored grain and spot
fumigation of grain milling equipment). This action is contem-
4 Since § 409 does not govern the establishment of action levels, FDA is not
constrained by the Delaney Clause in taking such regulatory action. In the
past, FDA has set a few action levels for processed foods for carcinogenic pes-
ticides, e.g., BHC in animal feed and dairy products; the bulk of the action
levels have been set for raw agricultural commodities.
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plated because of high EDB residues that have been found in
processed grain products by the State of Florida and others.
Attachment [Deleted.]
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January 31, 1985
MEMORANDUM
TO: Lee M. Thomas
Acting Administrator
FROM: Gerald H. Yamada
Acting General Counsel
SUBJECT: The Relationship of the Toxic Substances
Control Act to Other Federal Programs Under
Section 9
Issues Presented
You have asked us to advise you concerning Environmental
Protection Agency's (EPA's) authority to regulate chemical sub-
stances or mixtures under the Toxic Substances Control Act
(TSCA) when those substances are also potentially subject to
regulation under other Federal statutory authority, whether ad-
ministered by EPA or another Federal agency. Specifically, you
have asked that we address:
(1) Under what circumstances EPA is required to submit a
report to another Federal agency pursuant to § 9 of TSCA;
(2) The authority EPA has to act (a) pending a response
from that agency and (b) after that agency has responded;
(3) The discretion the Administrator has to use the authority
under TSCA to regulate a chemical substance or mixture that
might be addressed under statutory authority administered by
EPA.
Answer
Section 9 establishes a statutorily required procedure to deter-
mine to which Federal agency or Federal law should be given
the first opportunity to regulate the risk associated with a
chemical substance or mixture identified by EPA under its
TSCA authority. More specifically, the answers to your ques-
tions are as follows:
(1) Under §9(a)(l) of TSCA, the Administrator is statutorily
required to submit a report to another Federal agency when
two statutorily required determinations are made. The first de-
termination is whether the Administrator has reasonable basis
to conclude that a chemical substance or mixture presents or
will present an unreasonable risk of injury to health or the en-
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vironment. The second determination is whether the unreason-
able risk may be prevented or reduced to a sufficient extent
by action taken by another Federal agency under a Federal law
not administered by EPA. This section envisions that where the
Administrator makes the two determinations required by § 9(a),
EPA must provide a first opportunity to the other Federal
agency to assess the risk described in the report, to interpret
its own statutory authorities, and to initiate an action under
the Federal laws that it administers.
(2) (a) Under § 9(a)(2), with one exception, EPA is prohibited
from taking any action under §§6 or 7 with respect to the
risk reported to another Federal agency pending a response to
a report from the other Federal agency. There would be no
similar restriction on EPA for any risks associated with a
chemical substance or mixture that is not within the § 9(a)(l)
determinations and therefore not part of the report submitted
by EPA to the other Federal agency. The exception for EPA to
act pending a response is where the other Federal agency has
failed to respond within the time limit specified by EPA.
(b) After a report is submitted to another Federal agency and
a response is received, EPA may act to regulate the risks de-
scribed in the § 9(a)(l) report if the other Federal agency fails
to initiate an action under its authorities within 90 days of the
Federal Register publication date of its response, informs EPA
that it does not have the statutory authority to prevent or
reduce the risk to a sufficient extent, or agrees the risk is un-
reasonable but chooses not to regulate. Conversely, if the other
Federal agency concludes that the risk described in the report
does not present the described risk or initiates an action to
regulate the risk, EPA is precluded by § 9(a)(2) from acting
under its authorities as to the described risk.
(3) Where there is an overlap of statutory authorities admin-
istered by EPA, the other EPA statutory authorities are given a
preference to regulate the risk. But unlike § 9(a), the Adminis-
trator can elect to regulate under TSCA upon a finding that
regulation under TSCA is in the public interest.
Section 9 and Its Legislative History
In enacting TSCA, Congress anticipated that questions would
arise as to the statutory authority and/or agency that should
most appropriately be used to regulate risks from chemical
substances and mixtures. This was particularly necessary in
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light of TSCA's role as a gap-filling authority. Thus, before
addressing your specific questions, it is helpful to set forth the
congressionally provided mechanisms for resolving these ques-
tions, namely, § 9 of TSCA and its legislative history.
Section 9 establishes a statutorily required procedure to de-
termine which Federal agency or authorities should be given
the first opportunity to regulate a risk identified by EPA under
TSCA. Where there are overlapping authorities between EPA
and another Federal agency, § 9(a)(l) establishes a formal re-
porting and response mechanism between EPA and the other
Federal agency to provide the other Federal agency the first
opportunity to regulate under the Federal law that it adminis-
ters. Section 9(a)(l) provides in part that:
If the Administrator has reasonable basis to con-
clude that the manufacture, processing, distribution
in commerce, use, or disposal of a chemical sub-
stance or mixture, or that any combination of
such activities, presents or will present an unrea-
sonable risk of injury to health or the envi-
ronment and determines, in the Administrator's
discretion, that such risk may be prevented or
reduced to a sufficient extent by action taken under
a Federal law not administered by the Administra-
tor, the Administrator shall submit to the agency
which administers such law a report which de-
scribes such risk and includes in such description
a specification of the activity or combination of
activities which the Administrator has reason to
believe so presents such risk. (Emphasis added.)
After a report is submitted to another Federal agency, EPA is
precluded under § 9(a)(2) from taking any action under §§ 6 or
7 of TSCA with respect to a risk reported to another Federal
agency if the other Federal agency either:
(A) issues an order declaring that the activity or
combination of activities specified in the descrip-
tion of the risk described in the report does not
present the risk described in the report, or
(B) initiates, within 90 days of the publication
in the Federal Register of the response of the
agency under paragraph (1), action under the law
(or laws) administered by such agency to protect
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against such risk associated with such activity or
combination of activities ....
If EPA has initiated an action under §§6 or 7 with respect
to a risk associated with a chemical substance or mixture that
is the subject of the report, then § 9(a)(3) requires that the
other Federal agency:
. . . shall before taking action under the law (or
laws) administer by it to protect against such risk
consult with the Administrator for the purpose of
avoiding duplication of Federal action against such
risk.
Where there are overlapping authorities between two or more
Federal laws administered by EPA, § 9(b) imposes a preference
that the risk identified by EPA under TSCA be regulated
under the other EPA authorities unless the Administrator deter-
mines that regulation under TSCA is in the public interest.
Section 9(b) provides in part that:
If the Administrator determines that a risk to
health or the environment associated with a chem-
ical substance or mixture could be eliminated or
reduced to a sufficient extent by actions taken
under the authorities contained in such other Fed-
eral laws, the Administrator shall use such au-
thorities to protect against such risk unless the
Administrator determines, in the Administrator's
discretion, that it is in the public interest to pro-
tect against such risk by actions taken under this
Act.
The legislative history for § 9 is very limited. The conference
report best describes the legislative purpose of § 9 as follows:
The conferees have drawn from both the Senate
bill and the House amendment to assure that
overlapping or duplicative regulation is avoided
while attempting to provide for the greatest possi-
ble measure of protection to health and the envi-
ronment.
H.R. Rep. 1679, 94th Cong., 2d Sess. 84 (1976).
The prevention of duplication had been considered in a
number of earlier iterations of § 9 during the first session of
the 94th Congress. These sections contained general prohibi-
tions on the use of the substantive regulatory provisions of
TSCA if risk could be prevented or reduced sufficiently by ac-
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tions under other Federal laws.1 No formal interagency dialog
was required in any of the provisions considered. Some of the
provisions did require EPA to give public notice and make
available to other Federal agencies data relevant to the risk.
The notion of a formal interagency dialog did not appear
until TSCA was being considered in the second session of the
94th Congress, when § 9(a) began to resemble its final form
more closely. The Senate version, like the final version of
§ 9(a), provided a two-part test for initiation of an interagency
dialog. The Senate version provided that, if the Administrator:
has reason to believe that ... a chemical sub-
stance or mixture causes or contributes to, or is
likely to cause or contribute to an unreasonable
risk of injury to health or the environment, and
determines, in his discretion, that such risk may
be prevented or reduced to a sufficient extent by
action taken under a Federal law not administered
by the Administrator,
EPA is to "request" the other agency to issue an order declar-
ing whether such risk is present and, if so, determine whether
the risk can be reduced by laws administered by that other
agency.2 The requirements imposed on EPA and the other
agency, and the consequences of the response, were similar to
those contained in the final version.
The House bill contained the same two-part test for initi-
ation of an interagency dialog, but differed in two major re-
spects. First, the determination as to whether the other agen-
cy's law could reduce the risk sufficiently was not committed
to EPA's discretion.3 Second, the House inserted the formal re-
1 Hearings Before the Subcommittee on Consumer Protection and Finance of
the Committee on Interstate and Foreign Commerce, House of Representatives,
94th Cong., 1st Sess. on H.R. 7229, H.R. 7548, and H.R. 7664 (June 16 and
July 9, 10, and 11, 1975) (Ser. No. 94-41).
2 Hearings Before the Subcommittee on the Environment of the Committee on
Commerce, United States Senate, 94th Cong., 1st Sess. on S. 776 (Mar. 3, 5,
10, and Apr. 15, 1975) (Ser. No. 94-24).
3 Although the determination as to whether the risk may be prevented or re-
duced to a sufficient extent by action taken under a Federal law not adminis-
tered by EPA is committed to the Administrator's discretion in § 9(a), this
change was made to make clear that this determination would not be subject
to judicial review. H.R. Rep. 1679, 94th Cong., 2d Sess. 84 (1976).
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quirement to submit a report to the other agency and required
both agencies to publish Federal Register statements.
The conference committee drew from both versions to estab-
lish the relationship between TSCA and Federal laws not ad-
ministered by EPA. Thus, the two-part test for the initiation of
an interagency dialog consists of an EPA determination that
the agency "has a reasonable basis to conclude that ... a
chemical substance or mixture presents or will present an un-
reasonable risk of injury . . ." and a second determination that
the risk may be reduced sufficiently by actions taken by an-
other Federal agency under the laws that it administers. After
this two-part test is met, the final version requires the use of
a formal report and response mechanism in the public view4
to make the decisions as to which Federal agency or statutory
authority will be used to prevent or reduce a present or poten-
tial unreasonable risk identified by EPA under TSCA. One of
the purposes of the report and response mechanism is to "give
the other agency an opportunity to act to protect against the
risk before the Administrator uses the authorities in Section 6
or 7 to protect against the risk." H.R. Rep. 94-1679, 94th
Cong., 2d Sess. 84 (1976).
Discussion
Under What Circumstances Is EPA Required to Submit a Report to An-
other Federal Agency Pursuant to Section 9 of TSCA?
Section 9(a) requires that the Administrator must submit a
report to another Federal agency if two determinations are
made. The first is that the Administrator has reasonable basis
to conclude that a chemical substance or mixture presents or
will present an unreasonable risk of injury to health or the en-
vironment. This determination is a factual determination that
must be made on an individual basis and must be supported
by the analysis which is made part of a § 9(a) report.
The second determination requires that the Administrator de-
termine whether the present or potential unreasonable risk may
be prevented or reduced to a sufficient extent by action taken
by another Federal agency under a Federal law not adminis-
tered by EPA. This determination must be exercised to avoid
regulatory duplication that may be created by overlapping au-
4 The report submitted by EPA and the response by the other Federal agency
must be published in the Federal Register.
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thorities between TSCA and a Federal law administered by an-
other Federal agency. The potential for regulatory duplication is
strongest where another Federal agency is already regulating a
risk that EPA identifies as a regulatory candidate under its
TSCA authority.
In considering the second determination, EPA must make an
initial assessment as to whether any overlap of authorities or
duplication of regulations may exist or be created between
TSCA and Federal laws administered by another Federal
agency. One of the purposes of the formal mechanism required
by § 9(a) is to give the other Federal agency the opportunity
to interpret the laws that it administers and to determine
whether it is legally capable to prevent or reduce the risk to a
sufficient extent.
Although § 9(a)(3) authorizes EPA to initiate action under
§§6 or 7 of TSCA with respect to a risk associated with a
chemical substance or mixture that was the subject of a
§ 9(a)(l) report, this provision is not an exception to submitting
a report. Such a reading would be inconsistent with the statu-
tory scheme of § 9 and with the legislative purpose to avoid
regulatory duplication. Furthermore, unlike § 9(b), § 9(a) does
not allow the Administrator the option to choose to regulate
under TSCA rather than submitting a report to another Federal
agency after the Administrator has made the two determina-
tions required by § 9(a). Section 9(a)(3) applies, for instance,
where EPA is able to regulate under the circumstances de-
scribed in § 9(a)(2)5 and is not available as an exception to
§ 9(a)(l).
If the two § 9(a)(l) determinations are made, then EPA is
statutorily required to submit a report with the other Federal
agency that may have overlapping authority to regulate the
risk.
What Authority Does EPA Have to Ad (a) Pending a Response from a
Federal Agency to Which EPA Submitted a Section 9(a) Report and (b)
After that Agency Has Responded?
Under § 9(a)(2), with one exception, EPA is prohibited from
taking any action under §§6 or 7 of TSCA while EPA is wait-
ing for a response. This is supported by the conference report
at page 84:
5 These circumstances are discussed infra.
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S-165922 0170(02X21-FEB-87-13:36:47) F8280.FMT 02/21/87
Section 9(a) establishes the relationship between
the Act and Federal laws not administered by the
Administrator. If the Administrator has a reasona-
ble basis to conclude that the manufacture, proc-
essing, distribution in commerce, use, or disposal
of a chemical substance or mixture presents or
will present an unreasonable risk of injury and if
the Administrator makes a discretionary determina-
tion (which is not subject to judicial review) that
the risk may be prevented or reduced to a suffi-
cient extent by action taken under a Federal law
not administered by the Administrator, then the
Administrator must give the other agency an op-
portunity to act to protect against the risk before
the Administrator uses the authorities in section 6
or 7 to protect against the risk.
This prohibition applies only to the risks that are the subject
of a § 9(a) report. Various risks or risk elements may be asso-
ciated with a chemical substance or mixture. Section 9(a)
requires that only those risks or risk elements that may be
prevented or reduced to a sufficient extent by action under a
Federal law not administered by EPA are to be the subject of a
§ 9(a) report. For those risks that are not the subject of a
report, EPA may proceed to regulate such risk under §§ 6 or 7
provided that the requirements of § 9(b), if applicable, are met.
The coordination requirement under § 9(d) must also be met.
In submitting a report to another Federal agency, EPA can
set a deadline for response so long as the other Federal agency
is given at least 90 days to respond. Failure to respond within
the specified time limit may be a basis for EPA to act. If EPA
decides to initiate action under §§6 or 7 of TSCA, then the
other Federal agency must consult with EPA under § 9(a)(3)
before taking action under the Federal laws it administers. The
purpose of the consultation is to avoid duplication of Federal
action against the risk.
The circumstances under which EPA may act after a re-
sponse is received from another Federal agency are defined by
Congress. Section 9(a)(2) clearly sets forth the two circum-
stances when EPA cannot act. The two circumstances are de-
scribed in the conference report at page 84 as follows:
Section 9(a) prohibits the Administrator from
acting under section 6 or 7 with respect to the
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risk about which the Administrator notified the
other agency if the other agency takes one or two
alternative courses of action. First, if the other
agency issues an order declaring that the activity
specified in the Administrator's report does not
present the unreasonable risk described in the
report, then the Administrator may not take action
under section 6 or 7 with respect to such risk. Al-
ternatively, if within 90 days of the publication in
the Federal Register of the other agency's re-
sponse, the other agency initiates action to protect
against such risk, then the Administrator is pre-
cluded from taking action under section 6 or 7
with respect to such risk. If the other agency does
not take one of these actions, then the Adminis-
trator is permitted to act under section 6 or 7 to
protect against the risk.
Hence, EPA may act to regulate the risk if the other Federal
agency fails to initiate an action under its authorities within 90
days of the Federal Register publication date of its response.
EPA may also act if the other Federal agency informs EPA
that it does not have the statutory authority to prevent or
reduce the risk to a sufficient extent or agrees that the risk is
unreasonable but chooses not to regulate. But EPA may not act
if the other Federal agency initiates an action to regulate the
risk under another Federal law.
The conference report at pages 84-5 recognizes that the
action initiated by the other Federal agency must be more than
the mere open-ended possibility of action:
The conferees recognized that the other agency
may not because of time constraints be able to
initiate formal regulatory action to protect against
the risk within the specified time period. As long
as the other agency has officially initiated an
action which will culminate as soon as practicable
in effective regulatory action to protect against the
unreasonable risk and sets forth a general time
schedule of steps for such action, the requirement
should be deemed satisfied. However, the require-
ment that the other agency initiate action to pro-
tect against the risk is not satisfied by the mere
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open-ended possibility of action by the other
agency.
What Discretion Does the Administrator Have to Use the Authority of
TSCA to Regulate a Chemical Substance or Mixture that Might Be Ad-
dressed Under Another Statutory Authority Administered by EPA?
Section 9(b) expresses a preference that other EPA-administered
statutes be used to regulate risks identified under TSCA. The
Administrator may set the preference aside and regulate under
TSCA if the Administrator determines that it is in the public
interest. This is further explained in the conference report at
page 85:
Subsection (b) establishes the relationship be-
tween this Act and other laws administered in
whole or in part by the Administrator.
*****
If the Administrator determines that a risk to
health or the environment associated with a sub-
stance or mixture could be eliminated or reduced
to a sufficient extent by actions taken under the
authorities contained in other Federal laws, then
the Administrator shall use such other authorities
unless the Administrator determines, in the Ad-
ministrator's discretion, that it is in the public in-
terest to protect against such risk under this Act.
While it is clear that the Administrator's determi-
nation that it is in the public interest to use this
Act, and is a completely discretionary decision not
subject to judicial review in any manner, it is ex-
pected that the Administrator will review the
other authorities and present the results of that
review at the same time the Administrator takes
action under this Act. While the Administrator's
decision to use this Act, notwithstanding the other
authorities, is unreviewable by any court, a re-
viewing court is expected to require that the Ad-
ministrator have examined the other authorities
and present the results of that examination when
making the finding that it is in the public interest
to use this Act. Of course, the requirement to ex-
amine other EPA laws and to make determinations
applies only when the Administrator takes regula-
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tory action to protect against an unreasonable risk
under this Act. It does not apply when the Ad-
ministrator takes action necessary for the adminis-
tration or enforcement of the Act, such as issuing
recordkeeping requirements.
Unlike § 9(a), the Administrator has more flexibility under
§ 9(b), to choose the regulatory authority he believes to be
most appropriate. In making a determination as to whether it
is in the public interest to regulate under TSCA, the Adminis-
trator is guided by the factors set out in § 6(c) of TSCA.
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June 7, 1985
MEMORANDUM
TO: Lee M. Thomas
Administrator
FROM: Gerald H. Yamada
Acting General Counsel
SUBJECT: Section 9(a) of the Toxic Substances Control Act
I. Introduction and Summary
You have asked us for our opinion of the legal standards gov-
erning Environmental Protection Agency (EPA) decisions under
§ 9(a) of the Toxic Substances Control Act (TSCA) to refer, or
to withhold referral of, chemical control issues to another Fed-
eral agency (the "second agency" or the "referral agency").
Under § 9 of TSCA, the Administrator is required to submit
a report to a second agency, and withhold EPA regulatory
action on the issues involved pending resolution of the referral,
upon making two statutorily required determinations. The first
is that the chemical meets the "unreasonable risk" threshold
for regulation under §§ 6 and 7. The second is that this risk
may be reduced to a sufficient extent by action under a law
administered by the second agency. In our previous memoran-
dum dated January 31, 1985, we opined that once these two
findings had been made, the Administrator had no discretion
to withhold referral. In this memorandum, we consider the cir-
cumstances in which the Administrator should make these
findings—and the second finding in particular—and therefore
refer a regulatory issue to a second agency for its consider-
ation. Our analysis and conclusions fall into three parts.
A. TSCA explicitly confers discretion on the Agency in im-
plementing § 9(a). This language, read together with its sup-
porting legislative history, essentially bars judicial review of the
merits of any EPA decision whether or not to make a § 9(a)
referral. Within the zone of this discretion, legal analysis can
help identify the approaches to § 9(a) that best represent a
faithful implementation of the purposes of the statute.
B. Section 9(a) was included in TSCA to encourage EPA in
appropriate cases to step back from its own policy choices in
favor of the policy choices of other agencies, and should be
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implemented with this purpose in mind. In particular, our legal
analysis leads us to conclude:
1. That Congress expected EPA—particularly where the Oc-
cupational Safety and Health Act was concerned—to err on the
side of making referrals rather than withholding them;
2. That possible EPA disagreement with the referral agency's
policy choices should not be the basis for withholding referral;
and
3. That informal consultation is generally not a substitute for
formal referral.
In some cases, application of these principles alone would
call for a referral without the need for extensive policy or fac-
tual analysis. In all cases, these principles call for a good faith
analysis of the authority over a problem that other agencies
may possess, and the resolution of legitimate doubts in favor
of referral.
C. Despite the general purpose of § 9(a) to encourage refer-
rals, our statutory analysis can identify possible situations in
which withholding referral would not conflict with congression-
al intent. We discuss examples of these in section III.B.4. The
extent to which these situations exist, and justify EPA in with-
holding referral, may call more for policy than for legal judg-
ments.
II. Background
A. The Statute
1. General
Congress enacted TSCA in 1976 out of a concern for human
and environmental exposure to toxic chemicals. TSCA § 2(a).
Major provisions of the statute are informational or concern
new chemicals. They provide broad authority for EPA to re-
quire chemicals to be tested, TSCA § 4, direct manufacturers to
provide "premanufacture notification" to EPA before they bring
new chemicals on the market so that EPA has the opportunity
to take any necessary regulatory action, § 5, and provide EPA
with broad and general information-gathering authority, § 8.
2. Sections 6 and 7
In addition to this information-gathering emphasis, one of the
stated purposes of TSCA is that:
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adequate authority should exist to regulate chemi-
cal substances and mixtures which present an un-
reasonable risk of injury to health or the environ-
ment, and to take action with respect to chemical
substances which are imminent hazards.
TSCA § 2(b)(2).
Sections 6 and 7 of TSCA embody this purpose. Section 6 in
particular gives EPA authority to regulate a chemical presently
on the market in a variety of ways upon finding that it may
pose an "unreasonable risk" to health or the environment.1
The Administrator may, inter alia, ban use of the substance; re-
strict the quantity manufactured; impose labeling, notification,
recordkeeping, and disposal requirements; or regulate "any
manner or method of commercial use" of the chemical, § 6(a).
Upon complying with additional regulatory requirements, EPA
may also regulate quality control in chemical manufacture.
§6(b).
Section 7 gives EPA similar authority to take court action
against chemicals that pose "imminent hazards."
3. Section 9 (a)
Section 9(a) of TSCA sets up a mechanism to coordinate deci-
sions by EPA under §§6 and 7 with decisions by other agen-
cies that may have authority under their own statutes to regu-
late the same risks. It states that if the Administrator of EPA
(1) has a reasonable basis to conclude that "the manufacture,
processing, distribution in commerce, use, or disposal of a
chemical substance or mixture, or any combination of such ac-
tivities" presents or may present an "unreasonable risk," and
thus could be regulated under § 6, and (2):
determines, in the Administrator's discretion, that
such risk may be prevented or reduced to a suffi-
cient extent by action taken under a Federal law
not administered by the Administrator, then he
"shall" submit a report to the agency that admin-
isters this second law. That report must describe
in some detail the risk and the activities that
cause it, must include a detailed statement of the
1 Any § 6(a) rule must rest on a balancing judgment that considers all relevant
factors, including the nature and extent of any health or environmental risk,
the benefits of the use at issue, and economic consequences. § 6(c)(l).
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information on which it is based, and must re-
quest the second agency to determine once again
whether action against that risk under its law
"may" prevent or reduce that risk "to a sufficient
extent." EPA must give the second agency at least
90 days to respond.
The second agency can then do one of five things, two of
which block further EPA action and three of which allow it:
a. It can block further EPA action by issuing an
"order" within the EPA deadline stating that the
activities EPA has described do not present the
"unreasonable risks" EPA has attributed to them;
or
b. It can block further EPA action if it "initiates"
within 90 days of its response to EPA action to
"protect against" the risk identified by EPA; or
c. It can determine its law does not authorize
action to prevent or reduce the unreasonable risk
to a sufficient extent, thus freeing EPA to act; or
d. It can explicitly defer to EPA despite the exist-
ence of adequate legal authority on its part, pre-
sumably on the ground that action by EPA is
preferable on practical or public policy grounds; or
e. It can do nothing, in which case EPA, once the
deadline has expired, remains free to act as before.
4. Other Parts of Section 9
a. Section 9(b)
While § 9(a) governs coordination between TSCA and statutes
administered by other agencies, § 9(b) provides for coordination
between TSCA and other statutes administered by EPA. Like
§ 9(a), it directs EPA, once a risk has been established, to con-
sider whether these other statutes could reduce the risk to a
sufficient degree. However, unlike § 9(a), which directs EPA to
move to a second stage—referral—once it finds that these other
statutes "may" be able to satisfactorily handle the risk, § 9(b)
provides for a second stage only if EPA finds that these other
statutes "could" do that job. The second stage of § 9(b) is not
referral—which would make no sense where statutes adminis-
tered by a single agency are concerned—but a directive to EPA
to use these other statutes "unless the Administrator deter-
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mines, in the Administrator's discretion, that it is in the public
interest to protect against such risks under [TSCA]."2
b. Section 9(c)
Section 9(c) of TSCA states that:
In exercising any authority under this Act, the
Administrator shall not, for purposes of section
4(b)(l) of the Occupational Safety and Health Act
of 1970, be deemed to be exercising statutory au-
thority to prescribe or enforce standards or regula-
tions affecting occupational safety and health.
Section 4(b)(l) of the Occupational Safety and Health Act
(OSHA) forbids the Occupational Safety and Health Adminis-
tration to set standards governing working conditions "with re-
spect to which other Federal agencies . . . exercise statutory
authority to prescribe or enforce standards or regulations af-
fecting occupational safety or health," 29 U.S.C. 653(b)(l). The
effect of this provision is therefore to say that EPA standards
under TSCA cannot preempt authority under OSHA to issue
regulations addressing the same chemical substance or work en-
vironment.
c. Section 9(d)
Section 9(d) directs EPA, in administering TSCA, to "consult
and coordinate" with other agencies with the goal of "achiev-
ing the maximum enforcement of this chapter while imposing
the least burden of duplicative requirements."
B. Legislative History
1. General
The legislative history of TSCA billed it as a response to the
increasing loading of the environment by chemicals, a develop-
ment that, the legislative history emphasized, raised substantial
potential public health concerns. House Committee on Interstate
z Section 6(c) of TSCA states that in making such a "public interest" finding:
[T]he Administrator shall consider (i) all relevant aspects of the
risk, as determined by the Administrator in the Administrator's
discretion, (ii) a comparison of the estimated costs of complying
with actions taken under this chapter and under such law (or
laws) and (iii) the relative efficiency of actions under this chap-
ter and under such law (or laws) to protect against such risk of
injury.
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and Foreign Commerce, Legislative History of the Toxic Sub-
stances Control Act (1976) at 159-60 (Senate Report), 411-12
(House Report).
Section 6 was placed against this background as a means of
filling "regulatory gaps," Leg. His. p. 157 (p. 1 of Senate
Report). The legislative reports explain, in similar language,
that there may be cases where a ban or limit on use, rather
than emission limits of the sort often set under other statutes,
may be the most effective response to the dangers posed by a
chemical. See, e.g., Leg. Hist. pp. 161-2 (Senate Report), where a
discussion of the many environmental sources of mercury con-
cludes by saying in effect that use of § 6 might well be the
most appropriate response to this problem, and pp. 414-15
(House Report), citing PCBs as a similar example and conclud-
ing:
Intelligent standards for regulating exposures to a
chemical in the workplace, the home, or elsewhere
in the environment cannot be set unless the full
extent of human or environmental exposure is
considered .... [Pjresent regulations controlling
workplace exposure, exposure in the home or else-
where to a hazardous chemical may often be
based on measurements indicating only one source
of exposure, thereby resulting in less than full
protection from the hazard. Id. at 414-415.
The House Report also recognizes the "conspicuous gaps"
that exist in other laws and states that, among the most signif-
icant of the deficiencies, is the fact that authorities "to reduce
or eliminate the harmful exposure to a chemical may not be
adequate or may be cumbersome or inefficient." Id., at 414.
Similarly, in the Senate Report, the legislative history dis-
cusses consideration of "all the risks" by recognizing that:
While individual agencies may be authorized to
regulate occupational, environmental, or direct con-
sumer hazards with respect to a chemical sub-
stance, there is no agency which has the authority
to look comprehensively at the hazards associated
with the chemical. Existing authority allows the
agencies to only look at the hazards within their
jurisdiction in isolation from other hazards associ-
ated with the same chemical. The bill would grant
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the Environmental Protection Agency the authority
to look at the hazards in total. Id., at 158.
2. Section 9
Some early versions of the bills that became TSCA flatly pro-
hibited the Administrator from taking action within the juris-
diction of another agency.3
However, by the time TSCA was passed by the House and
Senate, the provisions of § 9(a) had reached essentially their
present form. The only material difference between the two
versions was that the Senate bill made § 9(a) referrals subject
to the "discretion" of the Administrator while the House bill
did not.
All three committee reports—House, Senate, and conference
—describe the purpose of § 9(a) as being to avoid overlapping
or duplicative regulation while providing full protection for
health and the environment. See Leg. Hist. pp. 179 (Senate
Report), 452 (House Report), and 697 (conference report).
The only further discussion of § 9(a)'s purposes was con-
tained in the Senate Report. It tended to describe the obliga-
tions of § 9 in mandatory terms, most particularly in a passage
entitled "The Committee Bill does not extensively overlap with other Feder-
al authorities and authorities within EPA." That discussion states, in
part, that under § 9(a):
The Administrator is directed to give notice to
other relevant Federal agencies if the risk associat-
ed with a chemical may be prevented or reduced
to a sufficient extent by action taken under the
other Federal laws not administered by EPA. If
the other agency issues an order declaring that
there is no unreasonable risk of injury to health
or the environment, or initiates appropriate action
under its own authority the Administrator has no
authority to take restrictive action under this Act.
hi order to ensure that the vital premarket notifi-
cation, testing, and reporting requirements are re-
3 See §9(b) of H.R. 7229 and § 9(b) of H.R. 7664, reprinted in Hearings Before
the Subcommittee on Consumer Protection and Finance of the Committee on
Interstate and Foreign Commerce, House of Representatives, 94th Cong., 1st
Sess. on H.R. 7229, H.R. 7548, and H.R. 7664 (June 16, and July 9, 10, and
11, 1975) (Ser. No. 94-41) at pp. 11 and 48, respectively.
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tained, nothing contained in the provision is to
effect [sic] that authority or requirements.
* * * * *
The entire provision is designed to minimize du-
plication and overlap in the regulation of toxic
chemicals, while providing EPA with sufficient au-
thority to alert other agencies of chemical dangers
where those other agencies have sufficient regula-
tory authority to eliminate these dangers.
Leg. Hist. p. 167. See also p. 164 ("the Administrator must re-
quest").
The conference report adds a discussion explaining that EPA
decisions under both §§ 9(a) and 9(b) are not subject to judi-
cial review. For § 9(a), that statement is contained in a paren-
thetical phrase, Leg. Hist. p. 697. For § 9(b), the discussion is
more extensive. The key sentence reads:
While the Administrator's decision to use this Act,
notwithstanding [other potentially available EPA]
authorities, is unreviewable by any court, a re-
viewing court is expected to require that the Ad-
ministrator have examined the other authorities
and present the results of that examination when
making the finding that it is in the public interest
to use this Act.
Leg. Hist. p. 698.
C. Post-Enactment History
Section 9 of TSCA has never been construed by any court, nor
has EPA issued regulations that interpret it. The only general
EPA statement on point is an "Interim Policy for Referring
Workplace Exposure Problems to the Department of Labor"
issued by former Deputy Administrator Alvin Aim on August
22, 1984. That policy states that:
EPA will refer chemical problems to [the Depart-
ment of Labor] when:
1. Occupational exposures constitute all or most of
the hazards posed by the chemical; and
2. Workplace standards (e.g., permissible exposure
limits) appear to provide the most effective
remedy for all or most of these hazards.
It also states that EPA will not refer a chemical when it de-
termines that OSHA "cannot adequately address that prob-
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lem"—for example, when too much of the exposure lies
beyond OSHA jurisdiction, when "a single rule under TSCA
would be more efficient than piecemeal regulation under sever-
al authorities," or when:
a full or partial ban on the production or use of
the chemical, or other remedies uniquely available
under section 6 of the TSCA, provide the most
effective or efficient remedy.
Finally, the memorandum states that before invoking § 9(a),
EPA will discuss the issues involved with Occupational Safety
and Health Administration, and that "[tjypically, then, sec. 9(a)
referrals will only take place after informal communications
have established their merit."
EPA has never made a formal § 9(a) referral. However, it
once rejected a petition for rulemaking essentially on § 9(a)
grounds, finding that the risk alleged in the petition lay entire-
ly within the jurisdiction of another agency that had found it
was not unreasonable. 47 Fed. Reg. 32779, 32780 (July 29,
1982). On two other occasions, EPA has declined to refer
based on an analysis of the referral agency's statutory author-
ity that found it inadequate to deal with the risk involved. 49
Fed. Reg. 24658, 24659 (June 14, 1984) (restrictions on metal-
working fluids); 45 Fed. Reg. 61973-74 (Sept. 17, 1980) (asbes-
tos in schools), hi two other proposed rules the Agency stated
it would consult, or had consulted, with other agencies infor-
mally to determine what action under § 9(a) might be appropri-
ate. 44 Fed. Reg. 60056, 60066 (Oct. 17, 1979) (commercial and
industrial use of asbestos fibers and consumer products con-
taining asbestos); 42 Fed. Reg. 24542, 24546 (May 13, 1977)
(prohibition of the use of chlorofluoroalkanes in aerosols).
m. Discussion
A. Congress Denied the Courts Any Significant Power to Oversee the Im-
plementation of Section 9(a)
The text of § 9(a) states that decisions whether another agen-
cy's authority is able to reduce a risk to a sufficient extent to
make a referral mandatory are subject to the "discretion" of
the Administrator. The conference report states that such deci-
sions are not subject to judicial review, and the history of the
statute's development reveals that the present version of §9(a)
succeeded earlier versions that did not provide any shield
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against judicial review and were criticized as likely to lead to
disruption and delay. See Leg. Hist. 499-500 (House Report, re-
printing earlier EPA comments on H.R. 7664).
The legislative history of § 9(b), parallel in many respects,
repeats the prohibition against substantive judicial review, but
couples it with a recognition that courts can review whether
EPA has adequately documented its consideration of that issue.
One might argue that the same requirement should be import-
ed into § 9(a) even though it is not mentioned there.4 Howev-
er, even should this be done, the duty would be merely to dis-
cuss the referral issue. Cases under the National Environmental
Policy Act make clear that such a duty simply to discuss an
issue is compatible, as far as the courts are concerned, at the
very least with an extremely wide range of substantive out-
comes. Stryckers Bay Neighborhood etc. v. Karlen, 444 U.S. 223, 100
S. Ct. 497 (1980).
B. The Legal Standards Governing Section 9(a) Referrals
Even though EPA is free, as far as the courts are concerned, to
adopt a very wide variety of approaches to implementing
§ 9(a), legal analysis can still help the Agency determine that
approach or set of approaches that best carries out what Con-
gress had in mind when it enacted this provision. Legal analy-
sis may provide a particularly useful approach to § 9(a) because
Congress in § 9(a) did not establish technical or economic tests
for the referral judgment, but tests involving analysis of statu-
tory authorities and judgments based on a view of the proper
balance of power between institutions. A number of guidelines
emerge from such an examination.
1. Congress intended EPA to make Section 9(a) referrals relatively freely.
This is particularly true where actions under the Occupational Safety and
Health Act are concerned.
a. Section 9(a) Generally
Section 9(a) of TSCA was drafted and defended in Congress as
a way to make sure that enactment of TSCA would not create
"overlap" and that TSCA would be restricted to filling "gaps"
in existing statutory authority. In particular, its existence was
used in the Senate to rebut the charge that TSCA conferred
4 The most definitive, previous statement on the point by EPA suggests an op-
posite position. Menotti, Primer on TSCA Section 4(f), Oct. 30, 1980, p. 43.
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too far-reaching a mandate on EPA. Where EPA does not use
this section, despite the existence of potential overlap, it would
therefore be declining to make use of the formal mechanism
established by Congress for coordination among agencies.
The language of § 9(a) reinforces the case for a liberal refer-
ral policy. Section 9(a) says that EPA must submit a report
whenever it determines that the chemical at issue presents or
will present an unreasonable risk and that the risk "may" be
reduced or prevented sufficiently by action under a non-EPA
statute. This language contrasts pointedly with the language of
§ 9(b) calling on EPA to take the analogous step concerning the
use of other EPA statutes when it determines that these other
statutes "could" do the job.
Even beyond this point, TSCA uses very precise distinctions
in describing the degree of certainty that EPA must have
before taking an action under it. For example, EPA may not
issue substantive regulations under § 6 of TSCA unless it finds
that there is a "reasonable basis to conclude" that a chemical
"will present" an unreasonable risk to health.
By contrast, the word "may" is used to describe the stand-
ard of proof before EPA takes other, more preliminary types of
actions. Perhaps the closest parallel to § 9(a) is § 4(f), which
calls on EPA either to "initiate appropriate" regulatory action,
or to publish an official statement finding that no "unreason-
able risk" is present, once it received information that indicates
that "there may be a reasonable basis to conclude" that a
chemical presents a risk of "serious or widespread harm" to
humans from cancer, mutations, or birth defects. Section 4(f)
was quite clearly inserted in TSCA to require accelerated scru-
tiny of substances that present the specific dangers it identifies,
and a similar "attention forcing" purpose should be attributed
to the similar language in § 9(a).5
b. Section 9 and OSHA
For a number of reasons, the case for a pro-referral approach
where action under OSHA is concerned seems stronger than in
the case of other statutes. First, Congress specifically provided
5 Similarly, § 5(e) allows regulation of new chemicals upon a finding that they
"may" present health risks or create significant human exposure. However, that
finding must be bracketed with a finding that there is a lack of sufficient in-
formation to reach a judgment on the potential risks of the new chemical, a
qualification on the inquiry of a type not present in §§ 9(a) or 4(f).
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in § 9(c) that no EPA action under TSCA could preempt action
under OSHA, despite an otherwise applicable preemption pro-
vision in OSHA. This means that in any area where the Occu-
pational Safety and Health Administration has authority and is
considering regulation, overlapping regulation may occur if EPA
also regulates. The fact that in § 9(c) Congress negated the pre-
emption clause in OSHA that otherwise serves to avoid this
result suggests, not that they had abandoned the goal, but that
they intended § 9 to be used to achieve it instead.
Second, the question of EPA's authority to set OSHA-type
standards that govern in the workplace and provide worker
protection there is arguably somewhat open. Under § 6 of
TSCA, EPA may clearly ban a use or uses of a product, re-
quire recordkeeping, or specify "clear and adequate warnings
and instructions" for the use, distribution, or disposal of the
substance. However, the only explicit authority to set other
types of standards is phrased as an authority to set require-
ments:
prohibiting or otherwise regulating any manner or
method of commercial use [of a chemical]. TSCA
§6(a)(5).
Section 6 describes the regulations that EPA may set under it
as regulations applicable to "manufacturing/' "processing/' "dis-
tribution in commerce," or "disposal." One might argue, there-
fore, that the § 6(a)(5) authority to regulate "commercial use,"
read against the structure of § 6 as a whole, does not extend
to direct regulation of the workplace, since that would be a
regulation of "manufacturing" or "processing."
The legislative history in this area is not definitive. Section
6(a)(5) had its origins in the Senate version of TSCA. The
House version did not contain § 6(a)(5) or equivalent language,
and accompanying language in the House Report explicitly em-
phasized that its version of TSCA should not be construed as
authorizing the EPA to issue standards (other than bans, label-
ing requirements, and the like) directly regulating the work-
place. Leg. Hist, at 441. The conference committee adopted the
Senate language on "commercial use" without comment on the
issue of workplace standards. However, one of the sponsors of
the House position asserted in a post-passage floor statement
that the House position on workplace regulation had nonethe-
less been adopted. Leg. Hist, at 753-54.
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EPA may have authority under §6(a)(5) or other provisions
of § 6 to set workplace emission limitations and the like in ap-
propriate cases. A definitive answer to the workplace issue is
not essential here. Our point is a narrower one—that the exist-
ence of these questions about EPA authority evidences some
ambiguity in the congressional attitude about EPA's direct reg-
ulation of the workplace, and this should make EPA somewhat
more willing than it would otherwise have been to invoke
§9(a) where OSHA authority is concerned. EPA's ability to
regulate in the workplace would obviously be strengthened
after it goes through the formal §9(a) referral process for a
workplace risk and the Occupational Safety and Health Admin-
istration declines to regulate that risk. Similarly, where the au-
thority of OSHA does not extend to a particular risk, EPA's
regulation in that area would not conflict with the legislative
intent to avoid duplication and overlap.
2. Disagreement with the referral agency's policy positions should not be the
basis for nonreferral under section 9(a).
This conclusion follows directly from the structure of § 9(a).
EPA cannot make a § 9(a) referral without also making a pre-
liminary finding that the chemical in question meets the "un-
reasonable risk" threshold required for TSCA regulation under
§§6 and 7. The statute then proceeds directly to describe two
ways in which the referral agency can absolutely block EPA
from actually basing regulations on that judgment. The first,
perhaps not too surprising, is that the second agency can "ini-
tiate" action under its own laws to protect against that risk.
Even here, the statute gives EPA no power to second-guess the
adequacy of that action, and is relatively relaxed about how
much the second agency must do to "initiate" action.6
6 Specifically, the conference report states:
The conferees recognize that the other agency may not because
of time constraints be able to initiate formal regulatory action to
protect against the risk within the specified time period. As long
as the other agency has officially initiated an action which will
culminate as soon as practicable in effective regulatory action to
protect against the unreasonable risk and sets forth a general
time schedule of steps for such action, the requirement should
be deemed satisfied. However the requirement that the other
agency initiate action to protect against the risk is not satisfied
Continued
190
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The second way the referral agency can block action is more
surprising. It can find that the activities described in EPA's
report do not present the unreasonable risks that EPA says
they do. Here Congress gave the referral agency the right to
disagree with EPA, and to bind EPA by that judgment, on
questions of science or risk management as to which it had no
reason to believe the second agency would be more expert.7
The only prerequisite to this right of binding disagreement was
that the referral agency have apparent jurisdiction to address
the problems caused by the chemical..
This decisionmaking structure can only be explained as a de-
liberate congressional attempt to assure that TSCA would
remain a limited and gap-filling statute, not just in name, but
in fact, by subordinating EPA's policy choices to those of other
agencies, at least in many cases of potential overlapping juris-
diction.
An argument against this conclusion could be based on the
language of § 6(c)(l). This provides that in deciding whether to
regulate under TSCA even though another EPA statute could
reduce risks to an acceptable degree, EPA must consider such
factors as the relative cost and cost-effectiveness of action
under each of the two competing statutes. Though this lan-
guage governs EPA choices under § 9(b), one might argue that
the same policies should govern choices under §9(a) as well,
and that EPA must therefore take them into account in making
referral decisions.
We believe that this conclusion, though defensible, does not
represent the best reading of the statute. First, as discussed
by the mere open-ended possibility of action by the other
agency.
Leg. Hist. p. 698.
7 The statutory language, calling on the second agency to find that "the activi-
ty or combination of activities [described in the EPA report] do not present
the risk described in the report/' is somewhat ambiguous as to whether the
second agency simply has power to find that EPA was technically wrong in its
assessment of the risk, or whether it also has power to disagree with EPA on
whether the risk was "unreasonable." The legislative history, however, adopts
the second interpretation, see pp. 697, (conference report), 167, 179 (Senate
Report). Since the purpose of such a finding by the referral agency is to block
EPA from implementing its own "unreasonable risk" finding, this second inter-
pretation also seems correct from the standpoint of statutory structure and
policy.
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earlier, the threshold for considering the use of other statutes
was deliberately set lower for § 9(a) than for § 9(b). Second,
and more important, the "public interest" test in § 9(b) was set
out for EPA to use after it had decided that EPA statutes other
than TSCA could handle a risk "to a sufficient extent." When
EPA makes such a finding with respect to other agencies' stat-
utes, however, it must refer. Nothing then prevents EPA and
the other agency from mutually agreeing—after referral—on
whatever division of labor among statutes seems best to them
in addressing the chemical at issue. Such an agreement might
well embody some or all of the principles in § 6(c)(l). Howev-
er, while in § 9(b) Congress required EPA to use the provisions
of § 6(c)(l) in addressing this decision when it lay fully within
the competence of EPA, for § 9(a), where jurisdiction would be
divided, it provided instead a decision rule specifying which
agency's policy choices would govern. Though principles similar
to those in § 6(c)(l) may properly play a role in some § 9(a)
determinations, they should be subordinated to the basic juris-
dictional pattern set out in § 9(a) itself.8
3. Informal communications are not a substitute for formal Section 9(a) re-
ferral.
To some extent, this conclusion follows naturally from the
points discussed earlier. If § 9(a) is meant to carry the weight
of keeping EPA within its proper role in case of statutory
overlap, EPA should not, consistent with that purpose, substi-
tute other less potent mechanisms for § 9(a).
8 Section 9(a) calls on EPA to determine that a referral agency "may" be able
to reduce a risk sufficiently before making a referral. One might argue that
this language calls on EPA to assess the referral agency's practical ability, and
willingness, to act as well as its legal authority before making a referral. Once
again, though we believe such a reading is possible, it is not the best reading.
It is inconsistent both with the overall structure of the section, as described
above, and with the legislative history. See Leg. Hist. 697 (conference report)
("If the Administrator determines that another Federal law contains authorities
adequate to prevent or reduce the suspected risk to a sufficient extent, the
Administrator shall submit [a § 9(a) report]") 16 (Senate Report):
The entire provision is designed to minimize duplication and
overlap in the regulation of toxic chemicals, while providing EPA
with sufficient authority to alert other agencies of chemical dan-
gers where those other agencies have sufficient regulatory authority to
eliminate these dangers. (Emphasis added.)
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It is no answer to this point to say that informal consulta-
tions would be more efficient. Congress must have considered,
and accepted, the inefficiencies that would result when it gave
referral agencies the power to reject EPA's judgment on ques-
tions of risk management. Indeed, where such inefficiencies
were unacceptable, Congress carefully provided that:
In order to ensure that the vital premarket notifi-
cation, testing, and reporting requirements [con-
tained in TSCA Sections 4, 5, and 8] are retained,
nothing contained in [Section 9(a)] is to effect
[sic] that authority or requirements.
Leg. Hist. p. 167.
A textual argument also supports this conclusion. Section
9(d) of TSCA already provides for informal coordination be-
tween EPA and other agencies on implementing TSCA. If in-
formal coordination alone had been thought sufficient, Congress
would have had no need to include § 9(a) in the law in addi-
tion to §9(d).
4. Areas for policy development.
It is a good deal harder to come up with guidelines for not re-
ferring than it is to extract from the statute the general poli-
cies in favor of referral discussed above. One might argue that
whenever there is not a single second agency with authority
over the entire risk as comprehensive as EPA's, § 9(a) does not
compel referral. We believe that this conclusion, though con-
sistent with the language of the statute and the legislative his-
tory, cannot be automatically adopted and applied in all cases
consistent with the statutory policy. Indeed, the decision when
it is proper not to refer is essentially a policy judgment in-
volving the balancing of potentially competing legal principles
in light of the particular facts. Legal analysis simply provides
part of the framework for such a decision. As our contribution
to that framework, we set out below three descriptions, in out-
line form, of situations in which a decision not to refer might
be proper.
a. A single activity poses significant risks within the jurisdiction of different
agencies ("split risks").
This case might arise—to give an example that is purely hy-
pothetical as far as we know—where the use of a chemical
inside buildings posed risks both inside and outside those
buildings, and a potential referral agency, though it had au-
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thority over the activity within buildings, could not consider
risks outside the buildings in deciding how strictly to regulate.
Such an agency's authority would thus extend only to a por-
tion of the risk that the activity created. Here it would be rel-
atively straightforward for EPA to find that action under "a
Federal law not administered by the Administrator" could not
sufficiently reduce a risk that lay in significant part entirely
outside its scope. Indeed, this case of a "split risk" that lies
within the authority of more than one statute is one of the
cases discussed in the legislative history as an example where
the use of TSCA would be proper.
b. Several related activities pose risks within the jurisdiction of several dif-
ferent agencies ("divided risks").
This case might arise where use of a chemical in the work-
place posed workplace risks, but no significant risks of other
types, while use of that same chemical in consumer products
posed similar risks to consumers. Here, each individual activity
would pose risks within the jurisdiction of a single agency,
rather than overlapping risks, as in our first example.
The statutory language gives no clear guidance here. It calls
on the Administrator to refer upon finding (1) that the manu-
facture, processing, distribution in commerce, use, or disposal of
a chemical substance or mixture, or that any combination of such
activities, (emphasis added) presents an "unreasonable risk" and
(2) that "such risk" may be sufficiently controlled "by action
taken under a Federal law not administered by the Administra-
tor." But what if a chemical substance or mixture can be said
to pose either a single "unreasonable risk" or a combination of
risks, depending on whether the "activities" involving that
chemical are combined together or divided? It might be that if
the risks are combined, they cannot be handled by a single
second statute, and thus the conditions for referral are not met,
while if they are divided into pieces each covered by a single
statute, referral of each piece might be appropriate. The ques-
tion therefore is whether Congress intended risks to be divided
in this manner. To that question legal analysis yields no clear
answer. The text of the statute is neutral. The TSCA policy
that other agencies be given first cut at making policy judg-
ments on the regulation of chemicals within their jurisdiction
would argue for referral. On the other hand, EPA might be
able in an appropriate case to conclude that the inconvenience
194
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and/or inefficiency of duplicative regulation caused by dividing
the problem among a number of agencies outweighed these
considerations. Such duplication would also be inconsistent
with the intent of § 9(a) to avoid regulatory overlap and the
intent of § 6 to be responsive to all the risks. See Leg. Hist, at
§ H.B., supra. See also, in this connection, TSCA § 2(c), directing
EPA to administer TSCA in a "reasonable and prudent [and
balanced] manner," and to "consider the environmental, eco-
nomic, and social impact of any action" taken under TSCA.
c. The referral ageruy, though it possesses some authority over the chemical,
lacks power to regulate it tightly enough ("residual risk").
The language of the statute calls on EPA to make a prelimi-
nary determination that the referral agency has the power to
reduce risks "to a sufficient extent," and it is hard to deny
that this language gives EPA a basis on which to make at least
a rough-cut evaluation of the "sufficiency" of the second agen-
cy's statutory authority. EPA has made such evaluations in the
past and acted on them. See supra. On the other hand, we have
seen that EPA should not withhold referral because of dis-
agreement with how the referral agency is likely to exercise its
power. Since a referral agency can always give a problem back
to EPA if it thinks its own authorities are not sufficient, one
could argue that any withholding of a referral on "insufficient
authority" grounds, once some jurisdiction in the second
agency has been established, amounts in effect to EPA making
a policy decision on acceptable courses of action that under the
statute should be left to the second agency. However, where
EPA's analysis indicates that some significant portion of the
total risk associated with a substance would not be covered by
the authority of another Federal agency or agencies, it would
then seem prudent for EPA to decide whether it should regu-
late that residual risk or, in an appropriate instance, the total
risk. Only in this way might it be possible for EPA to fulfill
the congressional intent to consider the "cumulative impact of
all sources of exposure." Leg. Hist. p. 414.
5. Conclusions.
In all cases the question of referral under § 9(a) falls within
the virtually unreviewable discretion of the Administrator, hi
some cases the principles outlined above would clearly point to
a § 9(a) referral. The most compelling case for referring a
chemical control question to another agency would be one
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where both the risk in question and the activity that generated
it fell within the authority of a single second agency whose
legislative authority over both activity and risk was as compre-
hensive as or more comprehensive than EPA's.
In other cases, however, the balance between the competing
policies is less clear, and the question will have to be decided
as a matter of judgment. In such cases, EPA should remember
that § 9(a) was intended as a check on its natural tendency to
use its own authorities rather than deferring to authorities ad-
ministered by other agencies. Section 9(a) therefore calls for a
careful inquiry into the possibly applicable authorities of other
agencies, and resolution of legitimate doubts about their suffi-
ciency in favor of referral. Notwithstanding the general purpose
of §9(a) to encourage referrals, it is anticipated that the
Agency will identify situations in which withholding referral
would not conflict with congressional intent.
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GRANTS
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May 14, 1981
MEMORANDUM
SUBJECT: Request for Office of General Counsel Opinion on
the Use of Confidential Information During Crimi-
nal Investigations and Trials
FROM: Michele Beigel Corash
General Counsel
TO: Richard D. Wilson
Acting Assistant Administrator for Enforcement
Attn: Peter Beeson
On February 24, 1981, Jeffrey Miller, the Acting Assistant Ad-
ministrator for Enforcement, inquired about legal restrictions on
authority of the Environmental Protecton Agency (EPA) to pro-
vide confidential business information to other Federal agencies
and courts in connection with criminal enforcement proceedings
under the environmental laws. Specifically, Mr. Miller asked
the following questions:
1. Is there any legal prohibition against disclosing confiden-
tial business information to Justice Department attorneys, Fed-
eral Bureau of Investigation (FBI) agents, or U.S. Postal Service
inspectors in connection with a criminal investigation?
2. May the Justice Department present such information to
grand juries and courts?
3. What procedures must EPA follow in disclosing confiden-
tial business information to other Federal agencies?
4. Do the answers to these questions vary according to
which environmental statute is being enforced?
Conclusion
The statutes and regulations under which the Agency operates
recognize the importance of cooperation among Federal agencies
in connection with their enforcement. They allow a relatively
free exchange of confidential information among agencies, pro-
vided the agencies follow certain guidelines to maintain confi-
dentiality with regard to the public. The same rules and proce-
dures apply to such exchanges of information regardless of
which environmental statute is involved.
199
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Question 1
Is there any legal prohibition against disclosing confidential
business information to Justice Department attorneys, FBI
agents, or U.S. Postal Service inspectors in connection with a
criminal investigation?
Answer
The environmental statutes authorize disclosure of confidential
business information to other U.S. officers or employees con-
cerned with carrying out the statutes. See Federal Insecticide,
Fungicide and Rodenticide Act at 7 U.S.C. § 136(h); Toxic Sub-
stances Control Act at 15 U.S.C. §2613; Clean Water Act at
33 U.S.C. §1318; Safe Drinking Water Act at 42 U.S.C.
§ 300j-4(d); Noise Control Act at 42 U.S.C. § 4913; Solid Waste
Disposal Act at 42 U.S.C. §6927; and the Clean Air Act at 42
U.S.C. §§7414, 7542.
EPA regulations specifically provide that we may disclose in-
formation subject to a confidentiality claim to the Justice De-
partment for the purpose of "investigation or prosecution of
civil or criminal violations of Federal laws related to EPA ac-
tivities" or "representing EPA in any matter." No notice to af-
fected businesses is required. 40 C.F.R. § 2.209(c). The same
provision authorizes disclosure to FBI agents, since the FBI is
part of the Justice Department.
The regulation also provides that we may disclose confiden-
tial business information to other Federal agencies that are per-
forming a function for EPA. Since the U.S. Postal Service is an
independent agency subject to the confidentiality provisions of
18 U.S.C. § 1905, EPA may disclose confidential business infor-
mation to Postal Service inspectors. No notice to affected busi-
nesses is required. 39 U.S.C. §§201 and 410(b)(2), 40 C.F.R.
§ 2.209(c)(3).
Question 2
May the Justice Department present such information to grand
juries and courts?
Answer
The Justice Department is primarily responsible for determining
its authority to disclose confidential business information to
grand juries and courts. However, the basic confidentiality stat-
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ute at 18 U.S.C. § 1905 forbids Federal employees to disclose
confidential business information only "to the extent not au-
thorized by law," and in my opinion there is ample legal au-
thority to disclose such information to grand juries and courts.
Most of the environmental statutes specifically authorize dis-
closure of confidential business information "when relevant in
any proceeding . ..." See Toxic Substances Control Act at 15
U.S.C. § 2613; Clean Air Act at 42 U.S.C. §§ 7414, 7542; Clean
Water Act at 33 U.S.C. §1718; Solid Waste Disposal Act at 42
U.S.C. §6927; Noise Control Act at 42 U.S.C. §4913; and the
Safe Drinking Water Act at 42 U.S.C. §300j-4(d), all of which
contemplate criminal or civil enforcement proceedings.1
Moreover, "effluent data" collected under the Clean Water
Act and "emission data" collected under the Clean Air Act
may be disclosed to anyone, even if such data would otherwise
be entitled to confidential treatment. 42 U.S.C. §7414, 33
U.S.C. §1318, 40 CF.R. §§2.301, 2.302.
Even if the environmental statutes did not provide explicit
authority for disclosure, the Federal Rules of Evidence and the
statutory provisions that authorize the Attorney General and
the U.S. Attorneys to conduct litigation and prosecute crimes
on behalf of the United States imply legal authority to present
any relevant evidence to grand juries and in public court trials,
regardless of whether such evidence is subject to a claim of
business confidentiality. See Fed. R. Evid. 401, 402 and 28
U.S.C. §§515, 547.
Indeed, a claim of trade secrecy ordinarily does not even
give rise to a privilege against civil discovery (although a court
may impose a protective order or arrange for In camera exami-
nation of the evidence). National Utility Service, Inc. v. Northwestern
Steel &• Wire Co., 526 F.2d 222 (7th Cir. 1970); F.T.C. v. Anderson,
552 F. Supp. 1118 (D. D.C. 1977); Federal Open Market Committee,
Etc. v. Merrill, 553 U.S. 340 (1979).
As Mr. Miller's memorandum pointed out, members of grand
juries may be held in contempt if they reveal information ac-
quired in the course of their deliberations. Fed. R. Crim. P.
1 The provisions of EPA regulations that establish special conditions for "dis-
closure of information relevant to a proceeding" under the environmental stat-
utes apply only to internal EPA proceedings. These conditions do not apply to
grand jury or court proceedings. See 40 C.F.R. §§ 2.301(a)(4) and (g), 2.302(a)(4)
and (g), 2.303(a)(4) and (g), 2.304(a)(4) and (g), 2.305(a)(4) and (g), 2.306(a)(6)
and (i), and 2.307(h)(4).
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6(e). In addition, several provisions of the environmental stat-
utes supplement 18 U.S.C. § 1905 by establishing criminal pen-
alties for unauthorized disclosures of confidential business in-
formation by those who are not Government employees. See
Solid Waste Disposal Act at 42 U.S.C. §6927 and Toxic Sub-
stances Control Act at 15 U.S.C. § 2613.
Question 3
What procedures must EPA follow in disclosing confidential
business information to other Federal agencies?
Answer
Where such disclosures are made, the regulation requires that
the responsible EPA program office:
(1) Inform the Justice Department or other agency of any
unresolved confidentiality claim or of any determination that
the information is entitled to confidential treatment; and
(2) Keep an internal log of the disclosures for no less than
36 months, setting out the name of the affected business, the
date of disclosure, the person or body to whom disclosure was
made and a description of the information disclosed. 40 C.F.R.
§ 2.209 (c) and (g).
EPA regulations at 40 C.F.R. § 2.209(c)(5) also forbid EPA
employees to disclose confidential business information to an-
other Federal agency unless the other agency either (1) agrees
in writing not to disclose^Jbhe information further or (2) obtains
a written statement from the EPA General Counsel or a Re-
gional Counsel that further disclosure would be proper. While I
doubt that EPA could properly withhold from the Justice
Department information that may be relevant to a criminal
proceeding, this memorandum nonetheless constitutes my "state-
ment," if one is needed, that it is proper for the Justice De-
partment to disclose confidential business information gathered
by EPA to grand juries and courts. Of course, it is also proper
for Postal Service inspectors to disclose such information to the
Justice Department. (See 39 U.S.C. § 409(d).)
Question 4
Do the answers to these questions vary according to which en-
vironmental statute is being enforced?
202
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Answer
Neither EPA's authority to provide confidential business infor-
mation to other agencies nor the Justice Department's authority
to use any relevant evidence in grand jury or court proceedings
depends upon which environmental statute is being enforced.
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September 9, 1981
MEMORANDUM
SUBJECT: EPA Responsibility to Contractors' Employees
FROM: Robert M. Perry
General Counsel
TO: Edward J. Hanley, Director
Office of Management Information
and Support Services
Your memorandum of July 20, 1981, requested my opinion on
two questions relating to the tort liability of the Environmental
Protecton Agency (EPA) and its employees arising out of
health and safety procedures at EPA laboratories and at labora-
tories operated by EPA contractors.
You stated that you have copies of two memorandums on
this subject issued by this Office on July 12, 1979, and No-
vember 14, 1980. I have attached two other memorandums
dated August 10 and 17, 1979, that discuss most of the issues
you raised in your inquiry. Accordingly, for the most part I
will confine my discussion to matters that were not covered
earlier.
Your questions are as follows:
Question 1
What is the liability of the EPA and its managers in cases of
occupational illness of or injury to EPA laboratory employees?
Answer
As discussed on pages 2 and 3 of our memorandum of July
12, 1979, the Government's liability to its employees for work-
related injuries is limited to benefits under the Federal Employ-
ees' Compensation Act. An injured employee may nonetheless
have a cause of action against a fellow employee whose negli-
gence caused the injury. Bates v. Harp, 573 F.2d 930 (5th Cir.
1978). However, a fellow employee is not likely to be liable
except in cases of direct negligence, such as spilling acid on a
fellow employee. Management decisions concerning safety pro-
cedures in laboratories probably would not lead to personal li-
ability. Ban v. Matteo, 360 U.S. 564 (1959).
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Question 2
What is the liability of the EPA and its managers in cases of
occupational illness of or injury to employees of a contractor
providing laboratory support to the Agency? Please consider
contractor employees located in EPA-controlled space as well as
contractor-controlled space.
Answer
Employees of EPA contractors generally are not entitled to
benefits under the Federal Employees' Compensation Act. 5
U.S.C. § 8101. However, these employees are presumably enti-
tled to benefits under State compensation plans.
As discussed in our memorandums of August 10 and 17,
1979, employees of contractors may have a cause of action
against the United States under the Federal Tort Claims Act.
Although the principles of liability depend on State law, liabil-
ity might be based on the Government's failure to warn of
known dangers, failure to require the contractor to take appro-
priate safety measures or failure to ensure that the contractor
follows whatever safety measures are prescribed.
Where contractor employees are located in EPA laboratories,
the Government has a direct duty to provide a safe working
environment. Any injury resulting from a breach of this duty
would likely result in liability.
Where the Government is liable, awards and settlements of
$2,500 or less are paid from Agency appropriations. Larger
amounts are paid from the permanent indefinite appropriation
established under 31 U.S.C § 724a. 28 U.S.C. § 2672.
Again, it is unlikely that EPA managers would be personally
liable for occupational illnesses or injuries of contractor em-
ployees caused by the Agency's policy decisions or decisions
made in the course of administering a contract.
In my opinion, Executive Order No. 12196 of February 26,
1980, "Occupational Safety and Health Programs for Federal
Employees," does not alter the liability principles discussed
above and in our earlier memorandums. Failure to follow this
guidance may increase the risk of Government liability, but it
is not likely to increase the risk of personal liability.
205
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Preventive Measures
Our memorandums of August 10 and 17, 1979, largely answer
your questions concerning the steps EPA ought to take to ful-
fill its duty to warn of known dangers and to require appro-
priate safety measures. In my opinion, adequate warning of
risk could be provided either by a contract article or by writ-
ten instructions from the Project Officer. Oral warnings, al-
though theoretically adequate, may be difficult to prove. Gen-
eral contract language requiring compliance with Federal, State,
and local statutes, regulations, and ordinances is likewise prob-
ably sufficient.
Although I am not familiar with the "DHEW Draft Guide-
lines for the Laboratory Use of Chemical Carcinogens, March,
1980," I suspect that it may be prudent to incorporate these
guidelines into our contracts (where relevant), unless program
managers have valid objections.
Although other agencies, such as the Occupational Safety
and Health Administration, are statutorily responsible for en-
forcing their own statutes and regulations, as a matter of tort
law EPA managers probably have a duty to monitor compli-
ance where these requirements are included in EPA contracts.
As discussed in our earlier memorandums, the Government's
legal risk is about the same whether a claimant alleges that
EPA prescribed inadequate safety requirements, failed to en-
force requirements, or failed to require any precautions.
Attachments Peleted.]
206
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June 11, 1982
MEMORANDUM
SUBJECT: Status of Issues Information System Under the
Freedom of Information Act
FROM: Robert M. Perry
Associate Administrator for Legal and
Enforcement Counsel and General Counsel
TO: John E. Daniel
Chief of Staff
This office has reviewed the proposed computer Issues Infor-
mation System to determine whether information that will be
contained within the system would be subject to disclosure
under the Freedom of Information Act (FOIA). The Issues In-
formation System will clearly consist of Agency records within
the meaning of the FOIA. These records will have to be dis-
closed upon request unless they fall within one of the nine ex-
emptions of the Act. Even if information in the system is
exempt from disclosure under the FOIA, the Act does not au-
thorize withholding the information from Congress.
The Issues Information System will enable certain Environ-
mental Protection Agency (EPA) officials to access information
on issues of concern to the Agency. Every issue maintained in
the system will contain approximately 13 data elements. Based
on our review of these data elements, it is likely that much of
the sensitive information in the system will be exempt from
disclosure under exemption 5 of the FOIA, 5 U.S.C. 552(b)(5).
This exemption protects records that reflect internal Agency
deliberations that form part of the process by which the
Agency makes decisions or formulates policy. The kinds of in-
formation that are protected are opinions, recommendations,
discussions of options, and similar predecisional, deliberative
materials. Factual materials, information that reflects final
Agency policy, and information already in the public domain
are not withholdable under exemption 5. The following is a
discussion of the applicability of exemption 5 to each of the
data elements that will be contained in the Issues Information
System.
The data elements that are likely to be withholdable under
exemption 5 are: "Significance to the Agency," "Impact," and
207
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"Current EPA Position." It appears that these data elements
will usually consist of opinions, evaluations, and the Agency's
tentative positions on the issues rather than factual statements
and expressions of existing Agency policy. Such information re-
flects the Agency's internal deliberations. Disclosure of this in-
formation would tend to chill frank and candid discussion in
the future. Of course, if the data elements on a particular issue
incorporated within the system do, in fact, contain factual in-
formation or statements of existing policy, this nonexempt ma-
terial would have to be disclosed under the FOIA.
It is more difficult to generalize concerning the status under
the FOIA of the data elements listed as "Issue," "Next Critical
Date," "Background," and "Key Actions to Date." To the
extent these data elements contain or reveal proposed Agency
actions or policies that are not already in the public domain,
they are part of the Agency's deliberative process and thus
withholdable under exemption 5. If, however, these data ele-
ments consist of recitals of factual information that do not
reveal the Agency's deliberations or that are already public,
they must be disclosed.
It is very unlikely that the following data elements in the
Issues Information System will be exempt from disclosure:
"Region," "City/State," "Category," "Key Contacts," "Alternate
Contacts," and "Reference Material." In most cases these data
elements will consist entirely of factual material that does not
reveal protected deliberations and that must, therefore, be re-
leased under the FOIA.
One additional issue merits brief mention. If information in
the Issues Information System contains enforcement related ma-
terial, exemption 7 of the FOIA may be applicable to that in-
formation. Exemption 7 protects investigatory records compiled
for law enforcement purposes to the extent that disclosure
would result in one of the specific harms described in
§ 552(b)(7) of the FOIA.
208
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September 27, 1983
MEMORANDUM
SUBJECT: Construction Grant Funds Allotted for
New York City Convention Center Project
FROM: A. James Barnes
Acting General Counsel
TO: Morgan C. Kinghorn
Comptroller
This memorandum provides a legal opinion addressing issues
raised in the attached July 18, 1983, letter to the Administrator
of the Environmental Protection Agency (EPA) from Senator
Daniel Patrick Moynihan and Congressman James J. Howard
concerning funds allotted under § 205(k) of the Clean Water
Act (CWA) for construction of an interceptor to serve the New
York City Convention Center. Senator Moynihan and Con-
gressman Howard asked whether these funds will be subject to
the reallotment requirements in § 205(d) if they are not obli-
gated by October 1, 1983. As explained below, it is my opin-
ion that the § 205(k) allotment is not subject to the require-
ments of § 205(d).
Background
The Municipal Wastewater Treatment Construction Grant
Amendments of 1981 added a new subsection (k) to § 205 of
the CWA. Section 205(k) required a separate allotment of
funds appropriated for fiscal year (FY) 1982 to the State of
New York for construction of an interceptor to convey sewage
from the planned convention center to the Newtown Sewage
Treatment Plant on an interim basis. Pub.L. No. 97-117, § 16
(1981). At that time, it appeared that the convention center
would be open for business substantially before the North
River treatment plant would be able to receive wastewater
from the convention center. The North River Plant ultimately
will be the treatment facility to serve the convention center.
Congress appropriated funds to be allotted under § 205(k) as
part of the construction grants appropriation in the Urgent
Supplemental Appropriations Act, 1982, Pub.L. No. 97.216. In
that Act, Congress provided that the § 205(k) allotment be
drawn in equal parts from New York's construction grants al-
209
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lotment, New Jersey's construction grants allotment, and the re-
maining States' construction grants funds. EPA established this
separate allotment of $2.799 million, which remains unobligat-
ed.
It now appears that the convention center may not be com-
pleted as early as expected, and that the need for interim
treatment at the Newtown plant may not exist. Consequently,
it may not be necessary to construct an interceptor connecting
the convention center to the Newtown facility.
Issues1
1. If the funds authorized in § 205(k) are not obligated, will
the States of New York and New Jersey be ineligible for re-
ceipt of reallotted construction grants funds under § 205(d)?
2. What would happen to the special § 205(k) allotment if the
convention center project is not built?
Answers
1. No. Assuming New York and New Jersey fully obligate
their regular FY 1982 allotments, they will be eligible to re-
ceive reallotted FY 1982 funds even if the §205(k) allotment is
unobligated.
2. The Agency will determine the disposition of the unobligat-
ed § 205(k) funds consistent with the general purposes of the
construction grants appropriation.
Discussion
A. Applicability of reallotment requirements to § 205 (k)
Construction grant funds are allotted by formula to the States
and are available for obligation in the respective States for the
fiscal year for which appropriated and the next succeeding 12
months. CWA, §205(c), (d). At the end of the period of avail-
ability, § 205(d) provides that any unobligated funds must be
reallotted on the basis of the current allotment formula. Section
'The issues stated herein are those posed in the letter from Senator Moynihan
and Congressman Howard. The letter also includes the issue of whether failure
to obligate §205(k) funds would make New York or New Jersey ineligible for
future construction grant funds. There is nothing in the Clean Water Act that
bars receipt of future allotments for any reason. The only prohibition to re-
ceipt of construction grant funds is in §205(d), concerning reallotted funds,
which is discussed herein.
210
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205(d) further provides that "none of the funds reallotted by
the Administrator for the fiscal year 1978 and for fiscal years
thereafter shall be reallotted to any State which failed to obli-
gate any of the funds being reallotted."
In order to determine whether New York2 will be prevented
from receiving reallotted FY 1982 funds, it is necessary to de-
termine whether unobligated § 205(k) funds must be reallotted
under § 205(d).
Section 205(k) is the only provision in the Clean Water Act
that establishes a separate allotment in addition to a State's
regular annual allotment of appropriated construction grant
funds. Section 205(k) provides:
The Administrator shall allot to the State of New
York from sums authorized to be appropriated for
the fiscal year ending September 30, 1982, an
amount necessary to pay the entire cost of con-
veying sewage from the Convention Center of the
City of New York to the Newtown sewage treat-
ment plant, Brooklyn-Queens area, New York. The
amount allotted under this subsection shall be in
addition to and not in lieu of any other amounts
authorized to be allotted to such State under this
Act.
By stating that this allotment "shall be in addition to and not
in lieu of any other amounts authorized to be allotted to such
State under this Act," Congress evidenced a clear intent to
keep this allotment distinct from New York's regular FY 1982
allotment.
2 The issue posed by Senator Moynihan and Congressman Howard questions
whether both New York and New Jersey will be affected by the reallotment
requirements. Presumably the issue of New Jersey's participation in reallotment
is based on the fact that one-third of the § 205(k) allotment was taken from
New Jersey's regular allotment. The source of funds for § 205(k) is not deter-
minative of which State or States may be precluded from receiving reallotted
funds. Rather, the State with control over the funds, i.e., the State to which
the funds are allotted, is the only one subject to the restriction in § 205(d).
Section 205(d) prevents reallotment to those States "which failed to obligate
any of the funds being reallotted." As the allotment of funds under this sec-
tion is to the State of New York, there is no basis for limiting New Jersey's
eligibility for reallotted FY 1982 funds if the §205(k) funds remain unobligat-
ed. Only New York, to which the funds were allotted, could be subject to this
limitation.
211
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The Urgent Supplemental Appropriations Act, 1982, Pub.L.
No. 97-216 further evidences Congress' intent that funds for
the convention center project be distinguished from New
York's regular FY 1982 allotment. The appropriation act directs
that the § 205(k) allotment be made up of:
an amount equal to one-third of the total cost
from the amount made available under this para-
graph to the State of New York, one-third from
the amount made available to the State of New
Jersey, and one-third from the amount made avail-
able to the remaining States, ....
Pursuant to this provision and § 205(k) EPA established a sepa-
rate allotment of $2,799,000, made up of $933,000 from the
total FY 1982 appropriation for construction grants and
$933,000 each from the New York and New Jersey allotments.
47 Fed. Reg. 42024 (Sept. 23, 1982). This allotment is designat-
ed as "New York Convention Center" on the allotment table
in the notice of allotment. 47 Fed. Reg. 42025.
Although it is clear that the § 205(k) allotment is separate
from the regular New York allotment made pursuant to
§ 205(c), neither the language of § 205(k), the appropriation act
language, nor the legislative history of the respective provisions
addresses the question of whether these funds are subject to
the reallotment requirements of § 205(d). However, in viewing
the purpose of § 205(k) together with that of § 205(d), it is
reasonable to conclude that Congress did not anticipate that
the failure to obligate § 205(k) funds would subject those funds
to reallotment or would prevent New York from otherwise
participating in reallotment.
The reallotment process is designed to adjust the distribution
of construction grant funds among the States to better reflect
the actual needs of the States for currently available funds.3
Presumably, States with unobligated funds at the end of the
period of availability are without an immediate need to receive
additional funds; otherwise those States would have obligated
their entire allotment. Thus, by prohibiting States contributing
funds to reallotment from receiving reallotted funds, § 205(d)
3 See general discussion of allotment and reallotment, H.R. Rep. 911, 92d Cong.,
2d Sess. 92-94 (1972); S. Rep. 1236, 92d Cong., 2d Sess. 113-14 (1972) (confer-
ence report).
212
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ensures that only States immediately able to use the reallotted
funds receive the additional monies.
If New York does not obligate the § 205(k) funds, it will not
be because New York did not have sufficient need for all
available construction grant funds in the State. Rather, New
York will not have obligated the funds because the one project
for which the funds could be used is no longer necessary.
Therefore to conclude that § 205(d) requires the reallotment of
those funds, precluding New York from receiving a share of
the reallotted FY 1982 funds, would be contrary to the purpose
of § 205(d).
I conclude, therefore, that §205(d) does not require the real-
lotment of unobligated §205(k) funds at the end of FY 1983.
Because the § 205(k) allotment will not be a part of the unob-
ligated FY 1982 funds being reallotted, New York will not, by
virtue of these funds, be a "State which failed to obligate any
of the funds being reallotted," and thus will not be precluded
from receiving a share of the reallotted funds. CWA, § 205(d).
B. Disposition of § 205(k) Allotment
Having established that funds remaining in the § 205(k) allot-
ment are not subject to reallotment, it must be determined
whether any other requirements govern the disposition of these
funds.
These funds are "no-year" funds, i.e., available until expend-
ed. Thus, the issue arises as to whether 31 U.S.C. § 1555 re-
quiring certain unobligated no-year funds to revert to the
Treasury applies. Specifically, § 1555 provides:
(a) An unobligated balance of any appropriation
for an indefinite period shall be withdrawn in the
way provided in section 1552(a)(2) of this title
[providing for reversion to the Treasury] when the
head of the agency concerned decides that the
purposes for which the appropriation was made
have been carried out or when no disbursement is made
against the appropriation for 2 consecutive fiscal years. (Em-
phasis added.)
The Comptroller General addressed the applicability of 31
U.S.C. § 1555 to funds set aside in the Interior Department
Appropriation Act, 1954, and reappropriated for a specific pur-
pose in the Interior Department Appropriation Act, 1955. 39
Comp. Gen. 244 (1959). The Interior Department argued that
213
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these funds were part of its 1954 appropriation, against which
disbursement had been made, and therefore the funds did not
have to be returned to the Treasury. The Comptroller General
held that because the funds had been reappropriated by Con-
gress for FY 1955, they formed a separate appropriation against
which no disbursements were made. The Comptroller General
concluded that the funds had to be redeposited into the gener-
al fund of the Treasury. 39 Comp. Gen. at 245-46.
Unlike the Interior Department funds, the funds allotted
under § 205(k) do not constitute a separate appropriation. An
allotment is not a separate appropriation; it is a distribution of
appropriated funds. The § 205(k) funds were appropriated by
the Urgent Supplemental Appropriations Act, 1982, Pub.L. No.
97-216, in the appropriation entitled "Construction Grants" in
which all funds "[f]or necessary expenses to carry out Title 11
of the Federal Water Pollution Control Act" are included. All
FY 1982 funds for construction grants, against which many
disbursements have been made, were appropriated by Congress
in that provision. Consequently, I conclude that 31 U.S.C.
§ 1555 does not require that the § 205(k) funds revert to the
Treasury.
As the § 205(k) funds are not subject to the reallotment re-
quirements of § 205(d) or to the disposition provisions of 31
U.S.C. § 1555, there is nothing that requires these funds to be
removed from the § 205(k) allotment by October 1, 1983. The
funds were appropriated to remain available until expended,
and the duration of this separate allotment is unspecified.
Therefore, the Administrator may maintain this allotment until
the need for the convention center project is finally deter-
mined. If it is ultimately determined that the interceptor
project will not be necessary, the Administrator may exercise
his discretion in deciding how best to allocate the funds.
The Administrator's discretion in determining the use of the
funds must be exercised consistently with the purposes of the
appropriation. Funds appropriated by Congress must "be ap-
plied solely to the objects" for which they were appropriated.
31 U.S.C. §13011. Because these funds are part of the Title H
construction grants program and were taken from the regular
construction grants allotments in a manner specified by the ap-
propriation act, application of these funds most consistent with
the appropriation act would be to distribute the funds to the
sources from which they were derived, i.e., one-third of the al-
214
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lotment among all the States and one-third each to New York
and New Jersey. In keeping with the construction grants regu-
lation governing reallotment, 40 C.F.R. § 35.2010, these funds
should be treated in the same manner as the most recent allot-
ment as of the date the funds are issued for obligation in the
respective States.
215
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INDEX
Page
Active mill tailings standards
Atomic Energy Act: 28
Administrative Procedure Act
Applicability to EPA actions under the Clean Air Act
§113: 8
Publication of rules: 28
Appropriations Act of 1984
§410 interpreted: 140
Atomic Energy Act of 1954
Active mill tailings standards: 28
Applicability of Federal and State laws regulating haz-
ardous chemical wastes to Department of Energy fa-
cilities: 60
Applicability of Resource Conservation and Recovery
Act to Department of Energy facilities operated
under: 55
Presidential exception of Department of Energy facili-
ties from Federal and State laws regulating hazardous
chemical wastes: 60
§275 interpreted: 28
State authority over atomic energy: 60
Attorneys
Combination of functions: 8
Insulated from review: 8
Best available technology economically achievable Guide-
lines: 96
Best conventional pollutant control technology Guide-
lines: 96
Best practicable control technology currently available
Guidelines: 96
Bethlehem Steel Corp. v. EPA
Clean Air Act § 113(e) interpreted: 8
Channelization and stream maintenance
217
-------
Applicability of §404 of the Clean Water Act: 132
Chemical wastes
EPA regulation of under the Resource Conservation
and Recovery Act: 55
Clean Air Act
Attainment deadlines: 22
Compliance with Part D plan: 1
Construction moratorium under: 22
Delayed Compliance Order: 1
Extensions of compliance dates: 1
Nonattainment area: 1
Part D plans: 1
Part D requirements: 13, 22
Restrictions on new source construction: 13
Sanctions: 13, 22
§107(d) interpreted: 1
§ 110 interpreted: 13, 22
§110(a)(3) interpreted: 1
§ 110(c) interpreted: 1
§110(i) interpreted: 1
§ 113(d) interpreted: 1, 8
§ 113(e) interpreted: 8
§ 172(a)(l) interpreted: 13, 22
§ 176(a) interpreted: 13
§316(b) interpreted: 13
State Implementation Plan: 13
Transportation grants: 13
Clean Water Act
Allocation under the Act to New York City Conven-
tion Center Project: 209
Applicability of §404 to channelization and stream
maintenance: 132
Applicability to incineration of hazardous wastes at
sea: 69
Authority of EPA to allow the Office of Surface
Mining or States implementing the Surface Mining
Control and Reclamation Act of 1977 to issue Nation-
al Pollutant Discharge Elimination System permits
under the Act in the absence of affirmative EPA con-
currence: 113
Authority of EPA to approve partial State § 404 pro-
grams under: 101
218
-------
Authority of EPA to approve partial State National
Pollutant Discharge Elimination System programs
under: 101
Basic legal requirements concerning effluent guidelines
under: 96
Eligibility of Department of Defense sewage treate-
ment plants for variances under: 120
40 C.F.R. 25.2(a)(l) interpreted: 93
40 C.F.R. 25.2(c)(l) interpreted: 93
Jurisdiction over springs in Ash Meadows, Nevada: 136
liability of vessel owner for wastes spilled at sea: 69
Relationship of §302 and § 301(b)(l)(c): 107
Requirement that guidelines consider impacts on water
quality in the broad ecological sense: 93, 121
§ 101(g) interpreted: 121
§101(k) interpreted: 209
§ 205(a) interpreted: 96
§ 301(b)(l)(C) interpreted: 107
§302 interpreted: 107
§303 interpreted: 121
§ 303(c) interpreted: 93
§304(b) interpreted: 96
§ 313(a) interpreted: 142
§ 402 interpreted: 87, 113
§402(a)(l) interpreted: 113
§ 402(b) interpreted: 101, 142
§ 402(c) interpreted: 142
§402(c)(l) interpreted: 101
§ 403(c) interpreted: 121
§ 404 interpreted: 101, 132
§ 404(b)(l) guidelines interpreted: 121
§404(f) interpreted: 144
§§ 404(f)(l)(A)-(F) interpreted: 144
§501(b) interpreted: 113
§ 502(7) interpreted: 136
Waivers for Federal facilities under §301(h): 120
Comprehensive Environmental Response, Compensation,
and Liability Act
"Facility" and "vessel" defined: 69
Incineration of hazardous wastes at sea: 69
Jurisdictional limits in ocean waters: 69
219
-------
Justice Department's views on joint and several liabil-
ity: 33
Liability under the Act for releases of hazardous sub-
stances in amounts less than "reportable quantities": 53
Limitations on liability for wastes spilled at sea: 69
§101(9) interpreted: 69
§102(h) interpreted: 53
§104 interpreted: 41
§107 interpreted: 33
§107(h) interpreted: 69
§ 114(a) interpreted: 69
Standards of liability: 33
Use of Hazardous Response Trust Fund monies: 41
Confidential business information
Use during criminal investigations and trials: 199
Constuction grant funds
Allocation under the Clean Water Act to the New
York City Convention Center Project: 209
Construction moratorium
State Implementation Plans: 22
Corps of Engineers
Authority in applying Clean Water Act programs to
discharges of solid waste in wetlands: 87
Council on Environmental Quality
Implementing regulations of: 41
Criminal trials
Use of confidential business information during: 199
Delayed Compliance Order
Clean Air Act: 1
Department of Defense
Eligibility of sewage treatment plants for variances
under the Clean Water Act: 120
Department of Energy
Applicability of Federal and State laws to the Depart-
ment facilities operated under the Atomic Energy Act
of 1954: ;..; 60
Applicability of the Resource Conservation and Re-
covery Act to: 55
Department of the Interior
220
-------
Authority of EPA to allow the Office of Surface
Mining or States implementing the Surface Mining
Control and Reclamation Act of 1977 to issue Nation-
al Pollutant Discharge Elimination System permits
under the Clean Water Act in absence of affirmative
EPA concurrence: 113
Department of Transportation
Funding cutoffs under the Clean Air Act: 13
Dredge and fill permit program
Authority of EPA to approve partial State §404 pro-
grams under the Clean Water Act: 101
Enforcement attorneys
See: Attorneys: 8
Environmental Impact Statement
Requirement for: 41
EPA laboratories
Health and safety procedures at: 204
Ethylene dibromide
Tolerance issues relating to: 159
Farming operations
Applicability of the Clean Water Act §404 to: 144
Federal Food, Drug, and Cosmetic Act
Data review and safety determinations: 159
§408 interpreted: 159
§409 interpreted: 159
Relationship of tolerance provisions of to Federal In-
secticide, Fungicide, and Rodenticide Act: 159
Tolerance-setting process: 159
Federal Insecticide, Fungicide, and Rodenticide Act
Relation to the tolerance provisions of the Federal,
Food, Drug, and Cosmetic Act: 159
Suspension and cancellation actions under: 159
Federal Register Act
Publication as promulgation: 28
Fill material
"Fishable, swimmable" water
Defined: 107
Food and Drug Administration
Enforcement authority and action levels: 159
Forest Service
State National Pollutant Discharge Elimination System
control over property and operations of under: 142
221
-------
Freedom of Information Act
Status of Issues Information System under: 207
Gulf Coast Coalition
Authority of EPA to pay expenses for forum on in-
cineration at sea: 140
Hazardous chemical wastes
Applicability of Federal and State laws to Department
of Energy facilities operated under the Atomic Energy
Act of 1954: 60
Hazardous Response Trust Fund
Support of removal and remedial actions: 41
Hazadous substances
Liability for release of: 33
Hazardous wastes
Incineration of at sea: 69
Incineration at sea
Authority of EPA to pay expenses for forums on: 140
Hazardous wastes: 69
Injury to EPA laboratory employees
EPA and EPA manager liability for: 204
Investigations
Disclosure by EPA of confidential business informa-
tion to other agencies: 199
Iron-producing operation
See: Steel-producing operations 8
Issues Information System
Status under the Freedom of Information Act: 207
Liability
For release of hazardous substances: 33
Of generator of spilled wastes at sea: 69
Of vessel owner for spilled wastes at sea: 69
Under the Comprehensive Environmental Response,
Compensation, and Liability Act, for releases of haz-
ardous substances in amounts less than "reportable
quantities": 53
Limitiation of Shipowner's Liability Act
Applicability to incineration of hazardous wastes at
sea: 69
Marine Protection, Research, and Sanctuaries Act
Regulatory proceeding under: 140
National Environmental Policy Act
222
-------
Applicability of Environment Impact Statement re-
quirements of § 102(2)(C) to removal or remedial ac-
tions under § 104 of the Comprehensive Environmen-
tal Response, Compensation, and Liability Act: 41
Removal and remedial actions: 41
§102(2)(C) interpreted: 41
National Pollutant Discharge Elimination Systems
Authority of EPA to allow the Office of Surface
Mining or States implementing the Surface Mining
Control and Reclamation Act of 1977 to issue Nation-
al Pollutant Discharge Elimination Systems permits
under the Clean Water Act in the absence of affirma-
tive EPA concurrence: 101, 113
Permit requirements: 87
State approval of a partial Program: 142
State control over Federal facilities: 142
National security
Control of hazardous chemical waste under the Re-
source Conservation and Recovery Act: 60
New York City Convention Center Project
Construction grant funds allotted for: 209
Nonattainment area
State: I
Nonfederal parties
Authority of EPA to pay expenses related to inter-
vention in regulatory and adjudication proceedings: 140
Nuclear wastes
EPA regulation of under the Resource Conservation
and Recovery Act: 55
Occupational Safety and Health Act
§ 4(b)(l) interpreted: 178
Office of Surface Mining
Authority of EPA to allow the Office or States im-
plementing the Surface Mining Control and Reclama-
tion Act of 1977 to issue National Pollutant Discharge
Elimination Act permits under the Clean Water Act
in absence of affirmative EPA concurrence: 113
Opinion of the Attorney General
EPA's authority to determine extent of waters of the
United States under § 404 of the Clean Water Act: 87
Part D plans
See: Clean Air Act 1
223
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"Public participation" regulations
Applicability of Part 25 to the approval of variance
from water quality standards: 93
Raw agricultural commodity
Adulteration defined: 159
Resource Conservation and Recovery Act
Applicability to Department of Energy facilities: 55, 60
Applicability to discharges of solid waste in wet-
lands: 87
Applicability to incineration of hazardous wastes at
sea: 69
Liability of vessel owner for wastes spilled at sea: 69
§ 6001 interpreted: 60
Secretary of the Army
Authority to deterine what kind of permit a discharge
of solid waste in waters of the United States re-
quires: 87
Sewage treatment
Eligibility of Department of Defense sewage treatment
plants for variances: 120
Funding withheld under the Clean Water Act: 13
Solid waste
Jurisdiction of the Clean Water Act over discharges in
wetlands: 87
Spilled wastes at sea
Liability of generator: 69
Liability of vessel owner: 69
Standards of liability
Under the Comprehensive Environmental Response,
Compensation, and Liability Act: 33
State
Nonattainment area: 1
State Implementation Plan
Under the Clean Air Act: 1
Construction moratorium: 22
State revision to its: 000
Steel Industry Compliance Extension Act
Relief under: 1
Steel-producing operations
Compliance with emission requirements: 8
Stretch-out extension: 8
Steel stretch-out extensions
224
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EPA's enforcement function: 8
Surface Mining Control and Reclamation Act of 1977
Authority of EPA to allow the Office of Surface
Mining or States implementing the Act to issue Na-
tional Pollutant Discharge Elimination System permits
under the Clean Water Act in the absence of affirma-
tive EPA concurrence: 113
Toxic Substances Control Act
Referral by EPA of chemical control issues to another
Federal agency: 178
Relationship to other Federal programs under § 9: 167
§6 interpreted: 178
§7 interpreted: 178
§ 9(a) interpreted: 167, 178
§9(a)(l) interpreted: 178
§9(a)(2) interpreted: 167
§ 9(c) interpreted: 178
§9(d) interpreted: 178
Uranium Mill Tailings Radiation Control Act
Active mill tailings rules: 28
Water quality standards
Applicability of the "public participation" requirement
of the Clean Water Act: 93
Authority of EPA to impose effluent limitations to
meet water quality standards imposed after July 1,
1977: 107
Requirement that guidelines consider impacts on water
quality in the broad ecological sense: 121
Variance: 93
"Waters of the United States"
Defined: 136, 144
40 C.F.R. §230.3(s) interpreted: 136
Wetlands
Jurisdiction of the Clean Water Act over discharges of
solid waste in: 87
225
*U.S. GOVERNMENT PRINTING OFFICE : 1987 0 - 165-922
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U.S. Environmental Protection Agency.
Riglon V, Library
230 South Dearborn Streat^
6060.4
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