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REGION X
Revised Edition • April 1973
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91OR731O2
ENVIRONMENTAL PROTECTION AGENCY
REGION X
SEATTLE WASHINGTON
Guidelines for Preparation of Environmental Statements
for
Reviewing and Commenting on Environmental
Statements Prepared by Other Federal Agencies
APRIL 1973
REGION X-l
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U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION X
g ^^ r, 1200 SIXTH AVENUE
I t^MM^7 1 SEATTLE, WASHINGTON 98101
Q V\I / J %
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CONTENTS
INTRODUCTION
SECTION I
SECTION II
SECTION III
SECTION IV
SECTION V
SECTION VI
1
National Environmental Policy Act 7
Content of Environmental Impact Statements 15
General Guidelines 21
Guidelines for Specific Projects
A. Highway Projects
B. Dredging and Spoil Disposal
C. Land Management
D. Airports
E. Water Resource Development
F. Comprehensive Planning
G. Radi ati on
H. Pesticide Projects
Regional Review Procedures
Attachments
35
35
51
61
75
83
99
103
109
117
123
A. Clean Air Amendments of 1970, Public
Law 91-604
B. Public Law 91-258, Air and Water Quality
C. Council on Environmental Quality Guidelines
D. CEQ Memorandum to Federal Agencies on
Procedures for Improving Environmental
Impact Statements
E. OMB Memorandum—State and Local Agency Review
of Impact Statements
F. Omb Circular No. A-95
G. Executive Order 11507--Prevention, Control,
and Abatement of Air and Water Pollution at
Federal Facilities
H. Executive Order 11514--Protection and
Enhancement of Environmental Quality
I. Executive Order 11296--Evaluation of Flood
Hazard in Locating Federally Owned or Financed
Buildings, Roads, and Other Facilities, and in
Disposing of Federal Lands and Properties
J. NEPA and the Courts
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INTRODUCTION
Region X of the U.S. Environmental Protection Agency (EPA)
has objectives to assist other government agencies in developing
an environmental ethic for their planning and action programs and
to assure that environmental values receive equal consideration
with economics and need in the Federal decision making process.
A principal means to accomplish these objectives is to call
attention to environmental relationships which may not have been
given adequate considerations during initial planning. The vehicle
for such comments is the Environmental Impact Statement (EIS)
review. Environmental issues must certainly be approached and
considered in the early planning stages of a project, not when a
situation develops that hits toward a "boiling point."
In June, 1971, Region X issued interim guidelines to illustrate
the types of information that would be looked for in an environmental
impact statement. In the two years since the guidelines were
issued, Region X has reviewed hundreds of impact statements that
have been prepared by Federal agencies within the region to comply
with the National Environmental Policy Act of 1969 (NEPA). In an
effort to assist Federal agencies in meeting the requirements of
NEPA, we at the EPA Region X office have conducted and participated
in a number of workshops and training sessions in cooperation with
the U.S. Civil Service Commission and with colleges and universities
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2
within the region. As a result of our experiences, we have revised
and updated the Environmental Impact Statement Guidelines to further
assist those engaged in the preparation of impact statements. These
guidelines insure that we consider the most important ecological
principles when evaluating possible courses of action or inaction.
We have heard demands to amend NEPA and we have seen proposed
new legislation. Our experiences with NEPA have been numerous but
nevertheless, NEPA is working in the Northwest. It is proving to
be an effective and reasonable way to curb pollution and disruption
of our environment. Many Federal and State agencies have reassessed
their activities and planning programs in accordance with NEPA
directives. Some problems have been eliminated and some are nearly
overcome. Although the Environmental Impact Statement requirement
is still young, it is yet the most wide-ranging and comprehensive
pollution control program authorized by Congress. It is a powerful
and costly process which must be protected and judiciously used
to insure environmental clean-up and proper land use planning.
The best insurance for maintaining momentum and public
confidence in NEPA is to continue to develop and enforce the Act
while using judgment in its application. NEPA will continue to be
strengthened with each new action initiated by citizen organizations.
The courts are involved to a greater degree each day in the
interpretation of the Act. It seems safe to assume that judicial
actions will play a major role in shaping the future application
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3
of NEPA. NEPA has vanguarded new values in the Northwest;
values which give priority to quality of life and long-term
ecosystem stability. Compliance demands basic changes in
societal standards, attitudes and actions that have tended to
assume that profit, economic growth, and technological
expansions are always good, even at the expense of environmental
quality of life. There are ethical and aesthetic premises that
equal, if not transcend, economics. Our attention is called to
values which base our lives in harmony and balance with the earth,
and the future of life, on the highest ecological concepts.
Ecosystem stability depends on heterogeneity. Any action that
makes things uniform tends to threaten future balances. NEPA has
been instrumental in bringing to public awareness the complexity
of the pattern of relations between people and their environment.
We must protect and preserve generally prevailing good water
and air quality. We cannot develop projects in the Northwest
haphazardly and without regard to the consequences. We must
acknowledge the necessity and the value of leaving some ecological
systems undisturbed. A habitat, once destroyed, is gone forever.
We must concern ourselves with the prevention of ecological disasters
so that costly clean-up will not be necessary. The work cut out for
us in the Northwest requires solutions from government, labor and
industry. Political friction, profit motives, and arbitrary mandates
make the job more difficult. Experience has shown that unwise
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4
projects impose heavy costs and inflict damage to the environment
and to the quality of life. We have neglected the warnings too
long, and now we have begun to pay the high price of corrective
action.
Environmental concern is not a passing national fancy.
NEPA has set in motion events that will have a long-term impact
on our environment. Environmental problems have taken on the
national agenda alongside traditional concerns of social justice
and quantitative prosperity. The American people want to safeguard
the national heritage and restore an ecological balance jeopardized
by imprudence. It is being acknowledged that the science of
ecology must be utilized immediately and with care for far
reaching, permanent and profound results. For engineering
expertise to be the means for developing a quality life is a
massive challenge. It is a challenge worthy of the highest
dedication, and it is a challenge which must be met if we are to
secure a liveable world for ourselves and for future life. The
success of NEPA requires full exposure, public involvement,
conviction, coordination, integrity, participation, and partnership:
no silent partners, no secrets, no deals. Each of us must
participate in these areas of joint concern with our fullest
capabilities if we are to stop pollution and exploitation.
Carefully planned and prepared Environmental Impact Statements
must be the unvarying rule if we are to protect the environment.
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The cornerstone of these objectives is a cogent guideline
which should be followed during the preparation and review of
Environmental Impact Statements.
The EIS review in Region X is designed to minimize the
possibility of damage to the environment. For this reason, we use
a multiple-disciplinary review system for each of the impact
statements submitted to the regional office for review. Chart No.
1 illustrates the Region X system for review of draft statements
and notes the various EPA disciplines involved in the preparation
of our own impact statements. Impact statements are examined by
specialists with expertise in air quality, water quality,
engineering, biology, land use management, noise abatement, solid
waste disposal, pesticides, economics and radiation health. Each
person with an interest in the proposal has an opportunity to
comment. The EIS program staff will incorporate the various
comments into a response from the Region X Environmental Protection
Agency- These EPA responses are available to all agencies and to
the public.
We ask that Federal, State, County and City administrators
and planners alert themselves to the times and accept the role of
stewardship for our natural and social resources. Today, and what
we do today, constrains what we can and cannot do tomorrow and
determines what tomorrow will be like. These guidelines insist on
a projection of consequences in the future. Both spirit and
performance must be attuned to the National Environmental Policy
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Act. For institutions to be effective, they must respond to the
challenges confronting them. They must do the job that is expecte
by the people and necessary to the environment. The task is
important. It is certainly a task that reflects one of the great
social concerns of our time. The Guidelines are dedicated to
these objectives.
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NATIONAL ENVIRONMENTAL POLICY ACT
SECTION I
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Public Law 91-190
91st Congress, S. 1075
January 1, 1970
63 STAT. 852
To establish a national policy for the environment, to provide for the establish-
ment of a Council on Environmental Quality, and for other purposes.
PURPOSE 1969.
National En-
vironmental
Polioy Act of
SEC. 2. The purposes of this Act are: To declare a national policy
which will encourage productive and enjoyable harmony between man
and his environment; to promote efforts which will prevent or elimi-
nate damage to the environment and biosphere and stimulate the
health and welfare of man; to enrich the understanding of the eco-
logical systems and natural resources important to the Nation; and to
establish a Council on Environmental Quality.
TITLE I
DECLARATION OF NATIONAL ENVIRONMENTAL POLICY
SEC. 101. (a) The Congress, recognizing the profound impact of Policies and
man's activity on the interrelations of all components of the natural goals.
environment, particularly the profound influences of population
growth, high-density urbanization, industrial expansion, resource
exploitation, and new and expanding technological advances and
recognizing further the critical importance of restoring and maintain-
ing environmental quality to the overall welfare and development of
man, declares that it is the continuing policy of the Federal Govern-
ment, in cooperation with State and local governments, and other con-
cerned public and private organizations, to use all practicable means
and measures, including financial and technical assistance, in a man-
ner calculated to foster and promote the general welfare, to create and
maintain conditions under which man and nature can exist in
productive harmony, and fulfill the social, economic, and other
requirements of present and future generations of Americans.
(b) In order to carry out the policy set forth in this Act, it is the
continuing responsibility of the Federal Government to use all prac-
ticable means, consistent with other essential considerations of
national policy, to improve and coordinate Federal plans, functions,
programs, and resources to the end that the Nation may—
(1) fulfill the responsibilities of each generation as trustee of
the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and
esthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environ-
ment without degradation, risk to health or safety, or other unde-
sirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects
of our national heritage, and maintain, wherever possible, an
environment which supports diversity and variety of individual
choice;
(5) achieve a balance between population and resource use
which will permit high standards or living and a wide sharing of
life's amenities; and
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Pub. Law 91-190
- Z -
63 STAT. 853
January 1, 1970
(6) enhance the quality of renewable resources and approach
the maximum attainable recycling of depletable resources.
(c) The Congress recognizes that each person should enjoy a health-
ful environment and that each person has a responsibility to contribute
to the preservation and enhancement of the environment.
Administration. SEC. 102. The Congress authorizes and directs that, to the fullest
extent possible: (1) the policies, regulations, and public laws of the
United States shdll be interpreted and administered in accordance
with the policies set forth in this Act, and (2) all agencies of the Fed-
eral Government shall—
(A) utilize a systematic, interdisciplinary approach which will
insure the integrated use of the natural and social sciences and
the environmental design arts in planning and in decisionmaking
which may have an impact on man's environment;
(B) identify and develop methods and procedures, in con-
sultation with the Council on Environmental Quality established
by title II of this Act, which will insure that presently unquanti-
fied environmental amenities and values may be given appropriate
consideration in decisionmaking along with economic and tech-
nical considerations;
(C) include in every recommendation or report on proposals
for legislation and other major Federal actions significantly af-
fecting the quality of the human environment, a detailed state-
ment by the responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented,
(iii) alternatives to the proposed action,
(iv) the relationship between local short-term uses of
man's environment and the maintenance and enhancement of
long-term productivity, and
(v) any irreversible and irretrievable commitments of re-
sources which would be involved in the proposed action
should it be implemented.
Prior to making any detailed statement, the responsible Federal
official shall consult with and obtain the comments of any Fed-
eral agency which has jurisdiction by law or special expertise with
respect to any environmental impact involved. Copies of such
statement and the comments and views of the appropriate Federal,
State, and local agencies, which are authorized to develop and en-
force environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the pub-
lic as provided by section 552 of title 5. United States Code, and
shall accompany the proposal through the existing agency review
processes;
(D) study, develc/p, and describe appropriate alternatives to
recommended courses of action in any proposal which involves
unresolved conflicts concerning alternative uses of available re-
sources ;
(E) recognize the worldwide and long-range character of en-
vironmental problems and, where consistent with the foreie-n
policy of the United States, lend appropriate support to initiatives
resolutions, and programs designed to maximize internationfll
cooperation in anticipating and preventing a decline in the qualitv
of mankind's world environment; 4u»"iy
(F) make available to States, counties, municipalities institn
tions and individuals, advice and information usefu iStormI'
maintaining, and enhancing the quality of the environment g'
Copies of state-
ments, eto.javail-
ability.
81 Stat. 54.
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January 1, 1970 - 3 - Pub. Law 91-190
63 5TAT. 654,
(G) initiate and utilize ecological information in the planning
and development of resource-oriented projects; and
(H) assist the Council on Environmental Quality established
by title II of this Act.
SEC. 103. All agencies of the Federal Government shall review Review.
their present statutory authority, administrative regulations, and cur-
rent policies and procedures for the purpose of determining whether
there are any deficiencies or inconsistencies therein which prohibit
full compliance with the purposes and provisions of this Act and shall
propose to the President not later than July 1, 1971, such measures as
may be necessary to bring their authority and policies into conform-
ity with the intent, purposes, and procedures set forth in this Act.
SEC. 104. Nothing in Section 102 or 103 shall in any way affect the
specific statutory obligations of any Federal agency (1) to comply
with criteria or standards of environmental quality, (2) to coordinate
or consult with any other Federal or State agency, or (3) to act, or
refrain from actingcontingent upon the recommendations or certifi-
cation of anyother f ederal or State agency.
SEC. 105. The policies and goals set forth in this Act are supplemen-
tary to those set forth in existing authorizations of Federal agencies.
TITLE II
COUNCIL ON ENVIRONMENTAL QUALITY
SEC. 201. The President shall transmit to the Congress annually Rep0rt to
beginning July 1, 1970, an Environmental Quality Report (herein- Congress.
after referred to as the "report") which shall set forth (1) the status
and condition of the major natural, manmade, or altered environ-
mental classes of the Nation, including, but not limited to, the air,
the aquatic, including marinej estuarine, and fresh water, and the
terrestrial environment, including, but not limited to, the forest, dry-
land, wetland, range, urban, suburban, and rural environment; (2)
current and foreseeable trends in the quality, management and utiliza-
tion of such environments and the effects of those trends on the social.
economic, and other requirements of the Nation; (3) the adequacy of
available natural resources for fulfilling human and economic require-
ments of the Nation in the light of expected population pressures; (4)
a review of the programs and activities (including regulatory ac-
tivities) of the Federal Gpvernmentj the State and local governments,
and nongovernmental entities or individuals, with particular reference
to their effect on the environment and on the conservation, develop-
ment and utilization of natural resources; and (5) a program for
remedying the deficiencies of existing programs and activities, to-
gether with recommendations for legislation.
SEC. 202. There is created in the Executive Office of the President Council on
a Council on Environmental Quality (hereinafter referred to as the Environmental
"Council"). The Council shall be composed of three members who shall Quality.
be appointed by the President to serve at his pleasure, by and with
the aavice and consent of the Senate. The President shall designate
one of the members of the Council to serve as Chairman. Each mem-
ber shall be a person who, as a result of his training, experience, and
attainments, is exceptionally well qualified to analyze and interpret
environmental trends and information of all kinds: to appraise pro-
grams and activities of the Federal Government in the light of the
policy set forth in title I of this Act; to be conscious of and responsive
to the scientific, economic, social, esthetic, and cultural needs and in-
terests of the Nation; and to formulate and recommend national
policies to promote the improvement of the quality of the environment.
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Pub. Law 91-190 - 4 - January 1. 1970
83 STAT. 855
SEO. 203. The Council may employ such officers and
may be necessary to carry out its functions under this Act. In
the Council may employ and fix the compensation of such ex?erts .
.
consultants as may be necessary for the carrying out of its ^ run ci lous
under this Act, in accordance with section 3109 of title 5, United otaies
BO stat. 416. Code (but without regard to the last sentence thereof).
Dutiaa and SEC. 204. It shall be the duty and function of the Council—
funotions. (l) to assist and advise the President in the preparation 01 trie
Environmental Quality Report required by section 201 ;
(2) to jjather timely and authoritative information concerning
the conditions and trends in the quality of the environment both
current and prospective, to analyze and interpret such informa-
tion for the purpose of determining whether such conditions ana
trends are interfering, or are likely to interfere, with the achieve-
ment of the policy set forth in title I of this Act, and to compile
and submit to the President studies relating to such conditions
and trends ;
(3) to review and appraise the various programs and activities
of the Federal Government in the light of the policy set forth in
title I of this Act for the purpose of determining the extent to
which such programs and activities are contributing to the
achievement of such policy, and to make recommendations to the
President with respect thereto ;
(4) to develop and recommend to the President national poli-
cies to foster and promote the improvement of environmental
quality to meet the conservation, social, economic, health, and
other requirements and goals of the Nation ;
(5) to conduct investigations, studies, surveys, research, and
analyses relating to ecological systems and environmental quality ;
(6) to document and define changes in the natural environment,
including the plant and animal systems, and to accumulate neces-
sary data and other information for a continuing analysis of these
changes or trends and an interpretation of their underlying
causes ;
(7) to report at least once each year to the President on the
state and condition of the environment; and
(8) to make and furnish such studies, reports thereon, and
recommendations with respect to matters of policy and legisla-
tion as the President may request.
SEC. 205. In exercising its powers, functions,, and duties under this
Act, the Council shall —
( I ) consult with the Citizens' Advisory Committee on Environ-
mental Quality established by Executive Order numbered 11472,
34 P. R. 8693. dated May 29, 1969, and with such representatives of science,
industry, agriculture, labor, conservation organizations, State
and local governments and other groups, as it deems advisable;
and
(2) utilize, to the fullest extent possible, the services, facilities
and information (including statistical information) of public and
private agencies and organizations, and individuals, in order that
duplication of ^ffort and_ expense may be avoided, thus assuring
that the Council's activities will not unnecessarily overlap or con-
flict with similar activities authorized by law and performed bv
established agencies. J
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January 1, 1970 - 5 - Pub. Law 91-190
83 STAT. 856
SEO. 206. Members of the Council shall serve full time and the Tenure and
Chairman of the Council shall be compensated at the rate provided compensation.
for Level II of the Executive Schedule Pay Rates (5 U.S.C. 5313). so stat. 460,
The other members of the Council shall be compensated at the rate 461>
provided for Level IV or the Executive Schedule Pay Rates (5
U.S.C.5315). 81 stat- 638-
Sup. 207. There are authorized to be appropriated to carry out the Appropriations.
provisions of this Act not to exceed $300,000 for fiscal year 1970,
$700,000 for fiscal year 1971, and $1,000,000 for each fiscal year
thereafter.
Approved January 1, 1970.
LEGISLATIVE HISTORY;
HOUSE REPORTSi No. 91-378, 91-378, pt. 2,accompanying H. R. 12549
(Comm. on Merchant Marine & Fisheries) and 91-765
(Comm. of Conference).
SENATE REPORT No. 91-296 (Coram. on Interior & Insular Affairs).
CONGRESSIONAL RECORD, Vol. 115 (1969)I
July lOi Considered and passed Senate.
Sept.23i Considered and passed House, amended, in lieu of
H. R. 12549.
Oot. 8i Senate disagreed to House amendments} agreed to
conference.
Deo. 20i Senate agreed to conference report.
Deo. 22i House agreed to conference report.
6PO 37-1 SB
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CONTENT OF ENVIRONMENTAL STATEMENTS*
SECTION II
* The following section "Content of Environmental Statements" is
a Regional interpretation of Section 102(2)(c) of the National
Environmental Policy Act. It must be realized that this
interpretation and these guidelines do not constitute EPA policy,
nor are they requirements under the National Environmental Policy
Act. They are based solely on the experience of EPA's Region X.
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CONTENT OF ENVIRONMENTAL STATEMENTS
(Referring to Section 102 (2)(c) of PL-91-190)
Point (1) requires a description of primary and secondary
impact on the environment including impacts on aesthetics, and
aquatic and terrestrial ecosystems.
This requires a detailed description of the proposed action.
It must include specifics of area involved, resources involved,
what physical changes are proposed, what ecological systems will
be altered and in what time frame these changes will occur. For
example, a proposal for a reservoir project, power plant, or other
facility, must include quantities of water stored, amounts and
schedules of releases, changes in water quality including
temperature, aquatic resources affected, tail water fluctuations,
diversion points and amounts, quality of return flows if
irrigation uses are involved, any exchange-of-flow arrangements,
resource losses in reservoir area, and any other physical change
which will have a significant impact. If a hydroelectric plant
is to be constructed by a public utility company subject to
license by the Federal government then information on such a
facility should be included in the description.
This section also requires a description of the environmental
interrelationship in the direct project area and the total affected
area __ however extensive it may be. A major action, such as a
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storage reservoir, a pipeline, mining or logging operation, road
construction, and recreation development or navigation works may
not only affect air, soil, vegetation, and water quality in the
immediate project area but may also be the inducement needed for
industrial, recreational, or agricultural development with
attendant environmental impacts.
Point (2) requires a description of any probable impact on the
environment, including impact on ecological systems such as wildlife,
fish, and marine life.
The CEQ Guidelines state that significant actions include
those which may have both beneficial and detrimental effects
"even if, on the balance, the agency believes that the effect will
be beneficial." Therefore, the agencies proposing action must
consider and report all alterations to existing conditions whether
or not they are deemed beneficial or detrimental. Since the
Environmental Protection Agency is directly responsible for
reviewing and commenting on air and water quality, solid wastes
management, pesticides, noise, and radiation, the statements must
include the anticipated changes in environmental quality in terms
of the parameters commonly used to evaluate each of these areas.
Point (3) requires the responsible agency to study, develop
and describe appropriate alternatives to recommended courses of
action in any proposal which involves unresolved conflicts
concerning alternative uses of available resources. Sufficient
analysis of such alternatives and their costs and impact on the
environment should accompany the proposed action through the
agency review process in order not to foreclose prematurely options
which might have less detrimental effects.
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This requires not only complete alternatives which would
accomplish the objective with less impact, but also non-structural
alternatives and those that include elimination of certain "high
environmental impact" aspects of the proposed action. Most actions
involve a number of potential areas where an imaginative approach
could lessen adverse environmental impacts while still meeting a
majority of the projected needs. An environmental statement should
describe these alternatives in such a manner that reviewers can
independently judge if the environmental impact results from trying
to gain maximum economic return or are inherent to the whole
project.
Point (4) requires an assessment of the relationship between
local short-term uses of man's environment and the maintenance and
enhancement of long-term environmental productivity. The agency
is required to assess their proposed action for cumulative and
long-term effects on the environment.
The project or action must be evaluated in terms of use of
renewable and non-renewable resources. In effect, the proposing
agency must show who is paying the "environmental cost,"
the people who presently gain the benefits or future generations
who may only be left with the cost. Most significant resource
based actions have a long-term effect since there is a foreclosure
of choices for future generations. For example, filling estuaries
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may provide additional land space for development but foreclose
future choice of use and eventually impair the ability of the
estuaries to support its normal biota.
Point (5) requires description of any irreversible and
irretrievable commitment of resources.
For example, construction of a storage reservoir, filling or
dredging of estuaries, construction of highways and pipelines are,
for practical purposes, irretrievable commitments since such
actions generally commit future generations to continue similar
use. Also, appropriation of water through water rights, channel
aligning, construction of major industrial operations, all are
basically irreversible since the cost is such that removal is
unlikely. Irreversible damage can also result from accidents
such as oil spills. The risk of such occurrences should be
discussed.
Point (6). The Council on Environmental Quality Guidelines
include a Point 6 indicating, where appropriate, a discussion of
problems and objections raised by local entities in the review
process should be included.
The purpose of this is twofold. It encourages the proposing
agency to contact and communicate with these groups and it
provides reviewers a reference to groups who may have personal
knowledge of the impact of the proposal.
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GENERAL GUIDELINES
SECTION III
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The following are general comments directed toward EPA's six
legislated areas of expertise. These are to be used in conjunction
with the comments on specific types of Federal actions (Sect. IV)
to stimulate environmental awareness and to aid in assessment of
the broad range of impacts. These comments are not to be used as
a checklist; they are only designed as guidelines. We have not
included a separate section specifically devoted to adverse
impacts, but rather have used a broad category to cover all types
and severity of environmental impacts. The reason for this
approach is that we feel NEPA intended the impact statement to
provide enough information that adverse impacts will be clearly
evident. This does not mean that adverse impacts should not be
identified as such, but rather that all impacts should be
presented in sufficient detail to allow the reviewer to independently
determine the severity of these impacts.
A. Water Quality
1. The Federal Water Pollution Control Act of 1967, as
amended, requires the individual states to set water quality
standards to protect the beneficial uses of water. After being
proposed by the states, these standards were submitted to the
Department of Interior for approval. Standards generally take the
form of regulations which set required levels of certain water
quality criteria such as dissolved oxygen, total coliform
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organisms, temperature, and other parameters. The water quality
standards of each state are promulgated and available from that
state. The 1972 amendments to the Federal Water Pollution Act
require the states to examine their water quality standards by
April 18, 1973 and to revise them as necessary.
2. For the reviewer to assess the effects of a project on the
water quality, the impact statement should include detailed information
on the present biological, chemical, and hydrologic characteristics
of the water body.
a. Biological factors include flora and fauna that exist
in or are dependent on the water body. The objective is to relate
the water body to the local environment and to depict its importance
in the ecosystem of the project area.
b. Chemical parameters of interest include the criteria
included in the state water quality standards as well as any other
parameters which may be of significance in assessing the project's
impacts on water. This is important since it is often the changes
in micronutrients or other factors which affect biological growth
which can significantly affect the water quality of the stream after
construction of the project.
c. Hydrologic characteristics include such information as
high and low streamflows, occurrence of floods, flood plain
characteristics, groundwater flows, tributaries, natural drainage
channels, and alterations to natural hydrologic conditions which
will result from the project's construction and operation.
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3. The statement should provide detailed information on the
expected effects of the project on water quality, in terms of the
physical, chemical, and biological changes which will occur due to
the project.
4. The statement should assess the impacts of the project on
water quality, in terms of applicable state water quality criteria,
and should present sufficient information to allow the reviewer to
decide whether any of these impacts can be considered adverse.
Specific impacts to the identified beneficial uses of water, such
as swimming, fish propagation, and water supply, should be stated.
5. If the project's construction or operation will result in
conditions which violate applicable water quality standards, these
conditions should be spelled out in detail and should be analyzed
in terms of the reason for their occurrence and possible methods
to mitigate potential adverse effects of such violations.
6. Water quality should also be related in the statement to
the existing ecosystems and the changes which will occur as a
result of the project.
7. If the proposed action will affect drinking water supply,
the impact statement should so state. U.S. Public Health Service
Drinking Water Standards which apply to the water supply should
be stated and compared to water quality resulting under post-project
conditions.
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B. Air Quality
1. What are the types and quantities of air pollutants that
will be emitted as a result of the proposed action or alternatives
to the proposed action? Inventories of pollutant emissions should
be as detailed as possible including the point of pollutant discharge
into the ambient air and stack parameters and concentrations if
applicable.
2. Will the proposed action or alternatives to the proposed
action result either directly (primary impact) or indirectly
(secondary impact) in air pollutant concentrations exceeding
national ambient air quality standards promulgated by the
Administrator of the Environmental Protection Agency pursuant to
Section 109 of the 1970 amendments to the Clean Air Act? Present
standards are published in the April 30, 1971, issue of the Federal
Register, pages 8186-8201. The procedures used for forecasting
ambient pollutant concentrations should be described in detail.
3. Will the proposed action or alternatives to the proposed
action result either directly or indirectly in air pollutant
concentrations exceeding State or local ambient air quality standards
which are more stringent than Federal standards or which are for
pollutants for which Federal standards have not been established?
As in 2., the procedures used for forecasting ambient pollutant
concentrations should be fully described.
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4. Is the proposed action consistent with air quality
management measures included in State-adopted plans for achieving
and maintaining national ambient air quality standards? Plans for
the four States within Region X are available for review at the
EPA Regional Office or at the office of the relevant State agencies:
Alaska -- Department of Environmental Conservation
Idaho -- Department of Environmental Protection and Health
Oregon -- Department of Environmental Quality
Washington -- Department of Ecology
5. Will the proposed action or alternatives to the proposed
action result in the violation of State and/or local air pollution
control emission regulations?
6. Is the proposed action in conformance with applicable
Federal standards of performance for new stationary sources, as
defined by Section 111 of the 1970 amendments to the Clean Air Act?
Federal new source performance standards for steam generators,
Portland cement plants, sulfuric acid plants, nitric acid plants
and municipal incinerators are published in the December 23, 1971,
issue of the Federal Register, pages 24876-24895. EPA expects to
promulgate during 1973 new source performance standards for other
emission source categories.
7. Is the proposed action in conformance with applicable
Federal emission standards for hazardous air pollutants, as defined
in Section 112 of the 1970 amendments to the Clean Air Act?
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EPA expects to adopt standards for asbestos, beryllium, and mercury
during 1973.
8. Does the alternative action selected for implementation
minimize the extent of degradation of ambient air quality?
9. What consultation with State or local air pollution control
agencies has occurred during planning of the proposed action and
during preparation of the impact statement? If these agencies
prepared written comments on the proposed action, these comments
should be submitted as part of the impact statement.
C. Noise
The Noise Control Act of 1972 requires the EPA to prepare a
criteria document regarding the effects of noise by August 1973
and to publish information on the levels of noise necessary to
protect the public health by November 1973. The Act also requires
EPA to set standards for several classes of equipment such as motor
vehicles and construction equipment. Both the documents and the
standards may lead to changes in these guidelines.
1. The following information is needed to evaluate the noise
impact of the proposed action and the alternatives:
a. The existing and anticipated land uses near the project
site or route that have a sensitivity to noise. (Particularly
facilities in which speech or sleep occurs such as residences,
motels, hotels, hospitals, schools, as well as recreational areas
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such as parks, campgrounds, nature preserves). What is the zoning
and what does the comprehensive plan anticipate as the land use
for undeveloped areas?
b. The existing noise levels adjacent to the project site
or route. Sites should be selected both for their proximity to
the projected noise source as well as for their noise sensitivity.
L]Q, Lgg and Lgg levels should be given in dbA units as well as the
noise characteristics at the identified test sites. If the noise
contains strong low frequency components, dbC scale measurements
should also be made. Where necessary strong pure-tone components
should be identified through full or one-third octave band
measurements. The levels need not be presented as noise level
contours. Methodology for determining these levels and
qualifications of the investigator should be indicated.
c. The noise levels anticipated in these areas emanating
from a completed project. LIQ, L^g and Lgg levels in dbA and/or
dbC units should be documented for the same test sites at which
existing levels were measured.. (Peak noise levels should be
determined because of their importance for sleep interference.)
One statistical level should be presented as noise level contours.
Methodology (noise prediction model) for determining these levels
should be indicated, as well as experimental verification of the
accuracy of the noise prediction model. Estimates of the maximum
noise at nearest sensitive uses for each kind of construction
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equipment to be used should be stated. The numbers of each type
of equipment should also be given.
d. The criteria used to determine the impact of the
predicted noise levels.
(1) What increase is considered tolerable?
(2) What levels are considered reasonable for various
uses?
(3) Upon what basis is this criteria established (i.e.
sleep, speech, task interference or the right to a quiet
environment)? The reference for the selected criteria should be
cited.
(4) State and municipal standards or ordinances which
apply should be cited.
e. What abatement means will be utilized to reduce noise
from the completed project; what levels of attenuation will be
achieved (abatement methods include barriers, berms, depression
of the site, etc.)? The effectiveness of the abatement means should
be demonstrated by the use of accepted noise prediction techniques.
(1) What abatement means will be utilized to reduce
noise during construction (i.e. acoustical modifications of
construction equipment, regulation of hours and days of construction,
noise specifications for all equipment used on the project)?
(2) What plans have been made to monitor the noise once
the project is completed?
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f. What facilities will not be protected by the above
abatement measures; what impact might this lack of protection
have?
(1) Has consideration been given to procuring the
additional land as a buffer zone or compensating for infringement
of the use of the property?
(2) A cost benefit study of the trade off between noise
reduction and land costs should be made where appropriate.
2. Recommended Criteria
a. Speech Communication
In residential areas or other areas where conversation
out-of-doors is anticipated, it is desirable to be able to converse
at distances up to 10 feet. As indicated in EPA-NTID 300.7
Effects of Noise on People, page 49, Figure 14, L5Q levels should
not exceed 55dBA. This would provide interior l_50 levels of
approximately 45dBA assuming open windows for ventilation.
b. Sleep Interference
For sleeping purposes maximum levels allowed are
suggested peak levels since it is the peaks which cause arousal.
EPA-NTID 300.7 Effects of Noise on People, page 68, Figure 17,
indicates 50% of the people can be protected from awakening if
interior peaks (L10) do not exceed 50dBA. With windows open for
ventilation, this suggests L]0 outside of 60dBA to protect sleep.
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Summary: Speech Communication L$Q outside 55dBA
Sleep Interference L-JQ outside SOdBA
Note: Highway Research Board Report #117, page 30, Table 11, may
also be used as a guide to recommended criteria.
c. Permissable Increase
Although a completed facility may not create levels in
excess of those recommended, consideration must be given on a site
by site basis to the increase from existing levels. EPA-NTID 300.3
Community Noise, Chapter 5, indicates that the degree of annoyance
experienced from intrusive sounds depends upon the noise level
increase above pre-existing levels as well as upon the existing
levels. Therefore some consideration must be given to the sites
where levels will be increased substantially even if they do not
exceed recommended maximum level specifications. As a general
statement increases can be divided into three ranges, related to
expected community response:
up to 5dBA increase - few complaints if gradual increase
5-10dBA increase - more complaints especially if
conflict with sleeping hours
over lOdBA increase - substantial number of complaints
Generally no attention is needed if the increase is
under 5dBA. Some consideration should be given to additional
abatement measures or alternate routing or compensation if the
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range increase is 5-IOdBA. If the increase is over TOdBA, the
impact is considered serious and warrants close attention.
D. Solid Waste
Projects that will result in creation of solid waste, either
during construction or as a result of operation of the completed
facility, should address the following information.
1. The quantities and composition of solid waste which will
be generated both in the construction process and as a result of
operation of the facility.
2. Will any hazardous wastes be produced as a result of the
proposed action?
3. Discuss the forecast for long term future waste loads
resulting from the project. That is, what additional waste loads
from population influx can be anticipated? Increased solid waste
loads may overload existing facilities for handling residential,
commercial and industrial wastes. Have local waste authorities
been made fully aware of the new waste loads that will result from
a rapid increase in population?
4. What plan has been developed for the storage, collection
and disposal of all the different types of waste that will be
generated?
a. Where and how will wastes be stored?
b. When will collections be made?
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c. What is disposal method?
5. Has the potential for recycling or re-use of wastes
generated by the project been fully investigated?
E. Radiation
The Atomic Energy Commission, as the licensing agency, has
issued general guidance for the preparation of environmental
reports for nuclear power plants. EPA reviewed this guidance and
is in general agreement with the specific projections contained in
the guide. A copy of the guide may be obtained from the AEC
Directorate of Regulatory Standards, Washington, D.C. 20545.
F. Pesticides
The use of pesticides is a widespread practice included as a
component of many projects or may be proposed as an independent
project. To avoid repetition, we have included discussion of the
general impacts of pesticides under the heading "Pesticides
Projects" (Sect. IV, page 109). An outline of EPA's concerns can
be found in this section. We ask the reader to review this
section and to keep in mind that the concerns expressed relate to
pesticides projects of any scale; the points raised apply equally
well to routine use of pesticides for clearing of brush along
highway routes to eradication of agricultural pests on an area-wide
basis.
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GUIDELINES FOR SPECIFIC PROJECTS
SECTION IV
HIGHWAY PROJECTS
SECTION IV-A
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The following are comments and questions directed toward
environmental impacts of highway projects. These comments indicate
the types of information needed in an impact statement but by no
means do they include all of the types of information needed to
review the statement. They are to be used as a guide or indication
of basic information which will allow a reviewer an opportunity to
assess environmental impacts and to adequately review the proposed
project. Reference should also be made to Section III, page 22
of the Guidelines for comments which are applicable to highway
projects.
I. Description of the Project
A. Describe the physical features of the highway in general
terms. Include the following types of information:
1. Configuration of the roadway.
2. Location of corridor.
3. Depressed or elevated sections of the roadway.
4. Areas where the grade will exceed 3%.
5. Areas of cut and fill and rip-rap.
6. Speed limits.
7. User volumes — at present and at ultimate capacity—and
indicate the percentage which are trucks.
8. Locations of exits and entrances to the proposed highway
including interchanges.
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9. Presence of any barriers (formed by road profile, by a
solid wall or embankment, by a continuous row of buildings, or by
the terrain itself).
B. Describe the corridor selected:
1. Topography.
2. Meteorology, with respect to conditions which are
conducive to trapping of air pollutants.
3. Areas of proposed facility where significant air
pollutant buildups may occur:
(a) Grades.
(b) Interchanges.
(c) Slow zones.
(d) Exits and dispersion of traffic onto slower-moving
city streets.
(e) Tunnels, toll gates, other obstructions to flow.
C. The impact statement should include detailed pictures or
graphs of all water bodies and drainage channels within the
project area.
D. Describe construction work that may take place in or
adjacent to water bodies, including the placement of structures
sach as pilings, bridges or culverts.
E. Describe soil conditions and areas of potential erosion
which will be affected by construction and operation of the
project.
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F. Describe the amount of culverting or channelization of
water courses which will take place as a result of the project.
Include areas which will have to be rip-rapped or protected against
erosion.
G. Extensively describe any construction which might take
place in a designated flood plain area. Describe how the project
concurs with House Document No. 465, a report by the task force
on Federal Flood Control Policy. See attachment I, Executive
Order 11296.
H. Describe any construction operations which may cause water
quality degradation, such as gravel washing or borrow pits adjacent
to water bodies.
I. Indicate the ultimate fate of drainage from the new highway;
indicate the changes that the facility will cause in natural
drainage patterns in the project area.
J. Describe applicable Federal, State and local ambient air
quality standards.
K. Describe state-adopted plans for achieving and maintaining
national ambient air quality standards.
L. Describe the present air quality of the area, particularly
with respect to known air pollution problems and their causes, and
the combinations of volume, topography and climate which intensify
these problems.
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M. Describe measures to be taken to assure that air pollution
from construction materials processing does not exceed levels
specified in State and local regulations.
N. The general discussion of noise presented earlier should
be considered for all highway projects. The maximum (hourly)
traffic generated noise level should be utilized for predicting
noise levels from the completed project. The impact of these levels
should be evaluated on the basis of sensitivity of the adjacent use
as well as upon the level itself.
0. In addition to noise levels during operation and use of the
completed facility, attention should be given to noise generated
during the construction period.
1. What length of time is anticipated for construction?
2. What facilities will be impacted in this period?
3. What provisions have been made for minimizing the noise?
(a) Noise limits included in specification of equipment
to be used.
(b) Operational limits to be met by acoustical jousings
or shields, limitation of hours and days of construction activity,
limitations of numbers of pieces of equipment used at one time.
P. What provisions have been made for monitoring the air,
water and noise pollution during construction?
Q. In addition to the general issues mentioned above (Section
III, page 33) which should be addressed for all projects which
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generate solid waste, highway construction projects should address
the highway litter problem along the road as well as in roadside
parks. Litter receptacle provisions should be designed into the
overall construction plan. Scheduling for regular pickup of these
wastes must be anticipated.
II. Environmental Impacts
A. The statement should describe the present water quality of
streams and water bodies adjacent to the project and should provide
a prediction of the highway's impact on water quality.
B. State information on the quantity and quality of runoff
water from the project and predict the impact of this runoff on the
receiving water.
C. Address the impacts which will occur as a result of using
de-icers or sand on road surfaces. Include impacts from oils and
chemicals which may accumulate on the highway facility.
D. Discuss impacts on water bodies as a result of dredging
and filling for highway structures.
E. Indicate methods to prevent debris from reaching water
bodies.
F. Evaluation of air pollution impacts of highway projects.
In the following paragraphs techniques available for forecasting
the air quality consequences are briefly described and general
guidelines indicating the level of analysis appropriate for
various categories of highway projects are presented. More
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detailed information may be obtained from the Air Quality Management
Section of Region X.
Although the state of the art for evaluating the impact of
proposed highway projects is currently not advanced, techniques
are available to make such determinations. The most common of these
techniques involves the use of mathematical models of pollutant
dispersion. These models use as inputs motor vehicle emissions
and meteorological data and yield as outputs estimates of pollutant
concentrations. Estimates of motor vehicle emissions for use in
dispersion modeling can be determined using the procedures
described in the most recent version of EPA publication AP-42,
"Compilation of Air Pollutant Emission Factors," available from
the Office of Technical Information and Publications, Office of Air
Programs, EPA, Research Triangle Park, North Carolina 27711. The
necessary meteorological data may be obtained from the National
Weather Records Center in Ashville, North Carolina, and from some
State and local air pollution control agencies.
The types of mathematical models available for estimating
concentrations of pollutants of which motor vehicles are a major
source vary in complexity and in accuracy. Models for estimating
the concentrations of particulates and carbon monoxide, relatively
inert pollutants, are presently the most accurate and the most
widely available.
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Two other pollutants, hydrocarbons and nitrogen oxides, of
which motor vehicles are a primary source react in the atmosphere
in the presence of sunlight to produce photochemical oxidants.
Mathematical models for forecasting the concentrations of
hydrocarbons, nitrogen oxides, and oxidants are still in a research
stage. Such models will probably be available for general use in
approximately a year.
Table 1 is offered as a general guide for determining an
adequate level of analysis for estimating the primary air quality
consequences of a proposed highway project. In Table 1 a suggested
level of analysis is indicated for project categories based on
the magnitude of the proposed project and on the severity of the
air pollution problem in the area to be served by the project.
Under the 1970 amendments to the Clean Air Act, States are
divided into a number of Air Quality Control Regions (AQCR's).
These AQCR's are given priority designations based on measured
ambient pollutant concentrations or, in the absence of pollutant
measurements, on population. For the pollutants of which motor
vehicles are a major source there are two priority designations,
Priority I and Priority III. The criteria for the priority
classification are published on page 15488 of the August 14, 1971,
Federal Register. Additional information on the geographic
boundaries of AQCR's and their priority designations may be
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TABLE 1. LEVEL OF ANALYSIS ADEQUATE FOR ESTIMATING THE AIR QUALITY CONSEQUENCES OF PROPOSED HIGHWAY PROJECTS.
Project category
1. New major highway in urbanizing
area of AQCR where transportation
control strategies are required.
2. Major new highway in urbanizing
area of Priority I AQCR.
3. New minor highway or highway
capacity improvement in AQCR where
transportation control strategies
are required.
4. New major highway in urbanizing
area of Priority III AQCR.
5. New major highway in rural
portion of Priority I AQCR.
6. New minor highway or highway
capacity improvement in urbanizing
area of Priority III AQCR.
7. New major highway in rural
portion of Priority III AQCR.
8. New minor highway in rural
portion of Priority III AQCR.
Geographic area
of analysis
Areawi de
Corridor of new highway or
highway capacity improvement
and corridor of other major
highways or arterial s
significantly affected by the
proposed project.
Corridor
Example of applicable
dispersion model
APRAC 1-A
HI WAY
Qualitative assessment of
corridor alternative best in
terms of meteorological and
topographical characteristics.
Air quality and meteorological
monitoring
Concurrent monitoring of carbon
monoxide, nitrogen oxides, oxidants,
wind speed and direction.
Carbon monoxide monitoring.
Carbon monoxide monitoring only
where extreme meteorological
or topographic conditions
inhibit pollutant dispersion.
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obtained from the Air Quality Management Section of Region X or
from State or local air pollution control agencies.
In reviewing the State-adopted plans for implementing national
ambient air quality standards, the Administrator of EPA found that
in a number of AQCR's the reductions in pollutant emissions
achieved through the Federal motor vehicle emission control
program and through control of stationary sources to the greatest
extent feasible would be insufficient to meet the standards by the
1975 deadlines set forth in the 1970 amendments to the Clean Air
Act. In these AQCR's additional measures, termed "transportation
control strategies," for reducing motor vehicle emissions are
required. States must submit the transportation control strategies
for EPA evaluation and approval by April 15, 1973. The
State-submitted strategies must be approved or an EPA strategy
promulgated by August 15, 1973.
In Region X the AQCR's containing the metropolitan areas of
Fairbanks, Portland, Seattle, and Spokane require transportation
control strategies. Environmental impact statements for highway
projects proposed for the urbanized portions (as defined by
regional transportation studies) of these areas should be based on
analyses as rigorous and complete as currently available evaluative
techniques permit. Agencies planning highway projects in these
four areas should work closely with the State and local agencies
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responsible for implementing measures for achieving national
ambient air quality standards.
The desirable geographic scope of the highway impact analysis
for each of the project categories is indicated in the second
column of Table 1. Any highway project from the widening of an
existing arterial to the construction of a new freeway will affect
the other elements of the transportation system of which the proposed
project will be a part. The air quality impact of the proposed
project thus will always extend in varying degrees beyond the
project corridor. A major highway project proposed in an urbanizing
area where relatively high pollutant concentrations already exist
(project categories 1 and 2 in Table 1) could significantly affect,
directly and indirectly, the air quality in a large portion of that
area. The effect on air quality of a minor highway in an area with
low ambient concentrations of pollutants (project category 8) will
probably be limited almost entirely to the project corridor and
will not be as significant in the corridors of highways or arterials
intersecting the proposed project.
Examples of dispersion models applicable to areawide and corridor
analyses are listed in column 3 of Table 1. The two models,
APRAC 1-A and HIWAY, were both developed by or under the sponsorship
of EPA; other models of comparable accuracy are available. APRAC
1-A may be used for forecasting carbon monoxide concentrations
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resulting from vehicles traveling a network of streets and
highways. HIWAY is designed to predict pollutant concentrations
from vehicles traveling a single highway.
The last column of Table 1 indicates the air quality and
meteorological monitoring desirable for each project category.
Generally, sufficient air quality and wind parameter measurements
are not available within the corridor of a proposed project.
G. Noise impacts of highways should be evaluated using
criteria similar to those described above (Section III, page 28).
Include details on the methodology used and predict the noise levels
generated during construction and operation of the project.
H. Discuss the broad range of secondary impacts that will
result from the proposed project. For example, what are the
possibilities of increased water usage, additional homes, industries
and recreation uses if the project is implemented?
I. Identify any adverse impacts which occur in any of these
sectors of environmental concern, and describe their nature, the
severity of the problem, standards or criteria violated, and any
possible mitigation methods which could be employed to minimize
these adverse impacts.
III. Alternatives
A. Discuss in detail all alternatives, including the
alternative of no action.
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B. Discuss alternatives of scope or size of project.
C. Address alternative corridors or highway locations with
special attention to projects proposed for location in flood plains.
D. Discuss alternatives in sufficient detail to provide a
reviewer the opportunity to realize secondary or long-range impacts
on environmental quality for each alternative.
E. Discuss alternative methods of construction if the methods
could result in fewer environmental impacts. For example, compare
bridges against culverts, and major cut-and-fill operations with
alternative locations which would minimize the land disturbance.
F. In the discussion of alternatives, in addition to other
routes or roadway configurations, alternate means of transportation
should be considered and evaluated even if the agency proposing
the project does not have the authority to carry out the alternative
G. Describe in detail the various corridor alternatives
considered and discuss:
1. The air pollution potential for each.
2. Favorable and unfavorable factors of each alternative
relative to generation of air pollutants.
3. Why was the selected corridor chosen over the
alternatives?
H. Do the corridor alternatives selected and the design
alternatives proposed minimize the pollutant concentrations to which
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sensitive receptors (e.g., the occupants of schools, hospitals,
nursing homes) are exposed?
I. Were the air quality consequences of non-highway
alternatives evaluated and compared with those of the highway
alternatives?
IV. Relationship Between Short-Term Uses and Long-Term Productivity
A. Discuss the project's short-term gain in relation to the
loss of long-term environmental resources.
B. Discuss need for the project and immediate economic
benefits.
V. Irreversible and Irretrievable Commitment of Resources
Discuss all commitments of resources, including:
A. Permanent alteration of water bodies.
B. Recreation areas lost due to project.
C. Secondary stresses such as urbanization and loss of open
space, and the continued commitment to a private-vehicle-operated
transportation system.
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DREDGING AND SPOIL DISPOSAL
SECTION IV-B
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Dredging
Dredging is the removal of earth from the bottom of a stream,
lake, river, bay or other water body for the purpose of deepening
a navigation channel. Projects involving dredging activities are
often accompanied by temporary turbidity and resultant effects
on water quality. The following comments are broadly divided
into the two main components of a dredging project: (1) the
dredging operation itself; (2) subsequent disposal of dredged
material (Spoil). These comments are directed toward the
environmental impacts of each operation and are to be used as a
guide for the types of information needed in an environmental
impact statement.
I. Description
A. Describe and predict the effects of dredging activity on
water quality.
B. Describe the bottom characteristics and benthic communities
in the project area.
C. Describe secondary changes which may occur from
sedimentation and water quality degradation due to disturbances
from dredging.
D. Describe the method of dredging to be used.
E. State the quantity of material to be removed.
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F. Perform and describe an analysis of bottom characteristics
in the dredging area. The Environmental Protection Agency's
Region X has set forth criteria for performing such an analysis
in their July 1971 report, "The Effects of Dredging on Water
Quality in the Northwest." The analysis should include descriptions
of water quality, soil samples and results of other sampling
programs as called for in the July 1971 report.
G. Describe any extraneous material such as submerged cables,
piles, pipelines, pipes and other trash which must be removed
during the course of construction. What method will be used for
disposal?
H. Describe any clearing and snagging debris to be removed
during construction operations.
II. Environmental Impacts
A. Examine the impacts on water quality due to construction
and subsequent maintenance of the project.
B. Discuss impacts initially resulting from dredging, impacts
on receiving waters due to spoil disposal, and impacts to the deep
water disposal area.
C. Discuss impacts resulting from effects such as a possible
increase of salt water wedge and leaching of pollutants through
disposal area dike.
D. Discuss impacts to water due to turbidity, both temporary
and periodical.
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E. Include provisions set forth to those performing
construction activities which will reduce adverse environmental
impacts and will keep erosion, turbidity, and siltation at the
lowest possible level.
F. State all procedures to be used to minimize impacts, such
as coordinating dredging activities with fishery agencies to
minimize unavoidable water quality degradation. In order to
effectively coordinate these activities, however, the composition
of materials to be released into the water and the duration of
resultant turbidities must be known.
Ill. Alternatives
A. Discuss in detail all alternatives to the proposed project
including the alternative of no action.
B. Indicate need for project in relation to size of area to
be dredged.
C. Suggest alternative means of construction which would
prevent or minimize water quality degradation using EPA standards
for guidance.
D. State in detail impacts resulting in alternative locations
for the proposed project.
IV. Relationship Between Short-Term Uses vs. Long-Term Productivity
A. Will project alter the natural characteristics of a water
course for a short-term economic gain?
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B. What will be the long-term gain from the proposed project?
Is this gain worth the environmental cost?
V. Irreversible and Irretrievable Commitment of Resources
A. Discuss the commitment of all resources.
B. Will the project result in the commitment of the water
body to a single-use purpose such as navigation at the expense of
long-range environmental values?
Spoil Disposal
Spoil disposal is the process of disposal of material removed
by dredging by placing such material on dry upland areas >
adjacent wetlands or by disposal into deep water areas. Unless
properly controlled, landfills may destroy the natural character
of the land, create unnatural heavy erosion and silting problems
and diminish the existing water surface. The most important
point to consider in dredging activities is the preparation of a
comprehensive plan of spoil disposal to insure adequate environ-
mental protection during the construction and operation of the
project. The following are specific comments and questions
dealing with spoil disposal projects.
I. Description
A. Describe characteristics and location of the proposed
spoil disposal site.
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B. Is there a comprehensive plan for disposal sites which
takes into account the accumulative effect over time and the
decreasing amount of suitable sites for disposal?
C. Describe the present land use of spoil disposal site.
D. Describe characteristics of the material to be disposed
including:
1. Nature and quality of material.
2. Dewatering properties of material to be disposed.
3. Compactability of material and settling rates of
material to be disposed.
4. Disposal schedule—to insure that operations do not
degrade water quality during times of anadromous fish migration.
E. When the project involves land disposal discuss the
following:
1. Method of disposal to be utilized, i.e., pipeline
discharge, barge, hopper (underway or stationary).
2. What type of leachates will be produced from the
spoil material and what is planned for protection of the
groundwater?
3. Methods to insure that spoil water does not adversely
affect water quality both during construction and after completion
of the project.
4. Provisions for monitoring during discharge—water
quality, sediment transport, precautions to prevent "short"
circuiting dumping.
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5. Consider and discuss the following for water disposal:
a. In addition to discussing the characteristics of
the site, will EPA criteria be satisfied?
b. Describe methods to be used for water disposal,
including volumes and site selection.
c. Describe the water characteristics at the site.
II. Environmental Impacts
A. Discuss methods to control runoff and erosion from land
disposal.
B. Discuss effects on water quality, such as:
1. Temporary turbidity.
2. Possible DO depletion due to agitation of organic
material.
C. Discuss impacts to aquatic life.
D. Discuss effects on hydrologic patterns and possible
interference with littoral drift patterns and circulation.
E. Discuss the impacts on fill areas, i.e., tide lands,
shoreline areas, estuaries.
F. Discuss impacts resulting from increased noise levels.
III. Alternatives
A. Discuss all alternatives including the no action alternative
B. Discuss alternative types and methods of dredging and
disposal, such as pipeline discharge, barging, or hopper methods.
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C. Discuss alternatives to dredging.
D. Discuss alternative areas of sites for spoil disposal.
E. Volume of dredging or size of project should be fully
considered.
F. Discuss impact of port docking patterns upon the demand
for dredging. Can alternative patterns produce the amount of
dredging required to support port operations?
IV. Relationship Between Short-Term Use vs. Long-Term Productivity
A. Will project alter the natural characteristics of a water
course for a short-term economic gain?
B. Accumulative effects on natural characteristics of water
bodies. This includes secondary long-term stresses on the project
area.
V. Irreversible and Irretrievable Commitment of Resources
A. Discuss the impacts due to a commitment of a natural water
body to an artificial, single-use purpose such as a small boat
marina, marine and navigation channels, etc.
B. Effects project will have on commiting an area causing a
possible loss of wildlife habitat and disruption of wildlife
activities.
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LAND MANAGEMENT
SECTION IV-C
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The two agencies most involved in land use management are the
U.S. Forest Service and the U.S. Bureau of Land Management. Most
of our past experience in EIS review has been with Forest Service
impact statements, so the following comments based on this
experience are more directed toward the type of impact statements
we have received from the Forest Service. Keep in mind, however,
that these comments may be extrapolated to the Bureau of Land
Management's environmental assessment and planning process as
well as other specific types of projects, such as grazing and
mining.
An agency whose function is to manage lands is involved with
every aspect of land use. Decisions must be made which correspond
to both public and private needs and provide for these increasing
demands. Areas not set aside for nor qualifying as wilderness
areas must be carefully considered and studied so that decisions
can be directed toward productive land use. Environmental impacts
which will occur if a proposed use is initiated are important
factors in such decisions. The agency proposing a land use must
conscientiously survey an area's productivity as it relates to
environmental costs. Such uses include recreational areas,
municipal watersheds, wildlife areas, timber harvestings, grazing
and mining.
An agency provides the essential information for proposed land
use by initiating a broad scale, long-term use plan which outlines
tentative management approaches for an area. The subsequent plan,
often referred to as a planning unit or management framework plan,
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discusses benefits which may be derived from an area. A definition
of a planning unit and a description of general guidelines for the
preparation of an environmental impact statement for a planning
unit follows. In addition to the basic planning unit guidelines,
we have included general comments and questions for two types of
projects which may be considered in a planning unit. These
illustrative projects, recreation areas and timber sales, are only
two of the multi-uses that constitute unit planning, although such
projects may at some time be considered separately.
Planning Units
A planning unit describes long-range multiple use objectives
and policies for a specific land tract, including the allocation
and values of resources. The plan provides guidance to a district
manager for an area based on existing inventories and knowledge of
how a land tract can be managed, utilized and protected. It
addresses such resources as recreation, timber, watersheds, mining,
and wildlife. The compatibility of these resources to each other
and to existing conditions defines the suitability of activities
that will be allowed. A planning unit may be considered as an
initial concept that will be developed into precise descriptions of
proposed activities.
Once a detailed planning unit for an area has been devised, an
environmental impact statement can be prepared. Specific details
of the proposed land use plan and its probable impacts are essential
to an evaluation of an environmental impact statement.
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Planning Unit General Guidelines
I. Description
A. Describe in qualitative and quantitative terms all biological
resources and water resources. This discussion should include how
the biotic communities have adopted to the physical environment,
and should also include the hydrologic cycle of adjacent water
bodies.
B. Describe the soil characteristics and geology in the
project area.
C. Describe all natural resources in the project area including
wilderness areas. The statement should recognize that these
wilderness areas are a diminishing resource.
D. Describe existing air quality and any applicable standards
or regulations.
E. Include graphic and pictorial information.
F. Describe meteorological conditions in the area.
G. Describe past, present, and proposed land use.
H. Describe accessibility to planning area. Include
transportation plans.
II. Environmental Impacts
A. Discuss impacts which may occur to water quality, air
quality, noise, solid waste disposal and pesticide use.
B. Discuss the impacts the project will have on the physical
environment such as soils, geologic formations, hydrology, drainage
patterns, etc.
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C. Discuss methodology to be used to minimize adverse
environmental impacts.
III. Alternatives
A. Discuss the full range of management alternatives considered
in the course of planning the action.
B. Discuss why the proposed alternative was chosen.
C. Discuss alternatives in sufficient detail so reviewers may
realize secondary or long-term environmental impacts.
IV. Short-Term Uses vs. Long-Term Productivity
A. Discuss environmental cost as it relates to short-term
uses and long-term productivity.
B. Discuss how actions taken now will limit the number of
choices left for future generations.
V. Irreversible and Irretrievable Commitment of Resources
Discuss resources to be utilized and what the replacement
potential of these resources is.
Timber Sale
The following are guidelines to be used for the writing of an
EIS on timber sales. The action is the final component in the
timber management plan.
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I. Description
A. Describe the timber sale area and include a sale layout
map.
B. Describe the types and quantity of timber to be harvested
including logging methods to be utilized.
C. Describe the general features of the timber sale area such
as land forms, geology and soils which may require special
harvesting techniques.
D. Describe all proposed road construction.
1. Describe locations of culverts and bridges.
2. Describe measures that will be used to minimize
environmental impacts.
E. Describe water bodies located in the project area (see
Sect. Ill, page 23).
F. Predict the quantity of slash and state method of disposal.
II. Environmental Impacts
A. Discuss impacts on water quality and quantity during and
after completion of the proposed project. Address impacts which
may occur to the biotic community, giving special consideration to
any expected changes to aquatic systems as a result of increased
sediment, temperature, or potential water flow obstructions.
Special attention should be given to impacts on streams from
disruption of stream banks, channel modifications, runoff and
stream crossings.
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B. Discuss impact to air quality as a result of temporary
equipment use and slash burning techniques.
C. State existing noise levels and expected noise levels
during construction.
1. Include expected noise levels over transportation routes
and distances of these routes.
2. Discuss any requirements placed on logging equipment to
minimize the increase in noise levels.
D. Discuss the effects timber harvesting will have on wildlife
habitats with special attention to endangered species.
E. Describe borrow areas for road construction and methods to
revegetate these areas after construction.
III. Alternatives
A. Discuss alternative harvesting methods (i.e., selective
harvesting, cable logging, clear cutting, skyline logging, and
helicopter logging) and the environmental impacts associated with
each.
B. Discuss alternatives to specific measures which could
minimize environmental impacts, i.e. road locations, bridge vs.
culvert, etc.
C. Illustrate alternative trucking routes which might lessen
noise impacts.
D. Discuss alternatives in relation to the size of the operation.
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E. Discuss alternative land uses of the designated area.
IV. Short-Term Uses vs. Long-Term Productivity
A. Address short-term use benefits and relate them to
environmental losses.
B. Discuss the long-term productivity associated with the
project.
V. Irreversible and Irretrievable Commitment of Resources
A. Discuss the quality, quantity, location, and accessibility
of those renewable and nonrenewable resources to be utilized by
the proposed action.
B. Identify the environmental cost of losing any irreversible
resources.
C. Discuss effects of committing land to timber harvesting use.
Recreation Areas
Recreation is one of the components of multiple use forest
management. The term "recreation area" refers to a broad range of
uses from preservation and enjoyment of the natural environment
(as provided by the National Wilderness and Wild and Scenic Rivers
Systems) to highly developed recreation areas such as ski resorts.
It is the latter type of recreation area which places the greatest
stress on the environment and which requires the inclusion of
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careful planning and environmental safeguards to preserve the delicate
balance between man and nature. The following refers to those
recreational areas such as campsites, winter, and summer resorts.
I. Description
A. Illustrate the proposed facility and the topography of the
area by including graphs or pictures.
B. Describe the geology and soil characteristics of the area.
C. Describe the biotic community. List types of vegetation
and animals including their present ecological relationship. Identify
any rare or endangered species in the area.
D. Describe the quantity, quality and characteristic uses of
water bodies in the area.
E. Describe the location and placement of any facilities
associated with the project, i.e. base facilities, lift terminals,
and parking lots.
F. Describe the expected uses of the new facility. Discuss
seasonal uses. Will recreation vehicles be allowed?
G. Describe potable water supply.
H. Describe the methods included in the project to provide
waste treatment. Sufficient information must be provided to
determine whether the planned treatment facility will provide the
waste treatment necessary to prevent stream degradation. Indicate
the design capacity of any planned treatment plant. In view of
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the seasonal, transient nature of the users of the recreational
facility, how will adequate waste disposal be maintained under such
varying load conditions? Will emergency storage be necessary to
avoid spillage into adjacent water bodies if the treatment
facility fails?
I. Discuss the ultimate disposal of wastes generated by users
of the facility. Indicate the types and volumes of such wastes.
Consideration of disposal methods should include all practicable
methods to dispose of liquid and solid wastes and should be
considered in sufficient detail to allow the reviewer to decide
whether adequate environmental protection features have been
included. Will existing solid waste plans be affected by the new
facility?
II. Environmental Impacts
A. Discuss the impacts which will occur to the ecosystems in
the project area.
B. Address all impacts on water and air quality due to
construction and maintenance of the proposed project.
C. Discuss impacts of noise generated by the project. Include
present and predicted noise levels due to the proposed activity.
D. Discuss impact on soils and geology in the area. Details
should be included on the possible effects soil erosion and
turbidity will have on existing water bodies and the affected
ecosystem.
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E. Discuss the secondary impacts accompanying the proposed
project. Recreation areas create many new demands in and around an
area. Discuss any predicted impacts as a result of these new
demands.
F. Describe all controls to be incorporated into the project
to prevent or reduce any environmental impacts. Specific details
should be included on the method to prevent soil erosion, excessive
noise levels, air, and water degradation. The statement should
also discuss any Federal agency supervision that will be performed
to insure that all environmental control requirements will be met.
III. Alternatives
A. Discuss the no action alternative.
B. Discuss alternative locations and impacts for the proposed
project.
C. Discuss alternatives related to the size and magnitude of
the proposed action.
D. Discuss alternative locations of facilities which might
lessen the environmental impacts.
IV. Short-Term Uses vs. Long-Term Productivity
A. Address the short-term benefits and relate them to
environmental losses.
B. Discuss the environmental trade offs involved in converting
an area to a single purpose resource.
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C. Discuss gains from long-term productivity of the area.
V. Irreversible and Irretrievable Commitment of Resources
Discuss the quantity, quality, location and accessibility of
those renewable and nonrenewable resources to be utilized by the
proposed action. For example, converting a multiple purpose area
to a single purpose use may be irretrievable.
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AIRPORTS
SECTION IV-D
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In general, the features of airports are amplifications of
the corresponding features of highway projects. Air quality, solid
waste, and noise are of similar concern; it is the magnitude or
scope of the different projects which will determine the degree of
impact. Rather than duplicate the general comments on Air Quality,
Solid Waste and Noise here, we ask the reader to refer to the
Highway sections on these areas for general guidance. The
following comments are directed more towards specific details to
be incorporated in the description of the proposed airport project
to allow an assessment of the impacts following the highway
guidelines indicated above.
The Noise Control Act of 1972 requires EPA to study existing
aircraft/airport standards, and report the findings to Congress by
August 1973. The results of this study may lead to changes in
presently accepted prediction methods and standards. Therefore,
the study may lead to changes in these guidelines.
I. Description
A. Describe the project location and indicate the existing and
anticipated number and type of aircraft, including military, using
the field at nighttime (10 p.m.-7 a.m.).
B. Indicate the existing and anticipated number and type of
aircraft, including military, using the field at daytime (7 a.m.-
10 p.m.). Cite reference for traffic projections.
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C. Indicate existing and proposed runway capacity, aircraft
mix, taxiway capacity, gate capacity, and runway separation and
orientation.
D. Indicate the existing and anticipated approach, departure,
and holding patterns.
E. Include NEF (Noise Exposure Forecast) or CNR (Composite
Noise Rating) maps. Indicate information utilized and assumptions
made in developing these contours.
F. Indicate the location of any residences, schools, hospitals,
parks or other land uses sensitive to noise within the NEF 30
contour or the CNR 100 contour.
G. Indicate the zoning of the land within the NEF 30 and CNR
100 contours.
H. Noise levels from engine test areas and/or run-up facilities
should be given.
I. If new runways are involved, there should be a noise
impact evaluation of all feasible runway alignments.
J. There should be a discussion of operational alternatives
that could lessen the noise impact, even if such operations may
not be within the jurisdiction of the agency issuing the EIS.
K. Describe present disposal plans for liquid and solid
wastes generated from terminal operations as well as aircraft
operations. Detail the effects of disposal of sanitary and
industrial wastes on nearby municipal treatment plants. Disposal
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of solid wastes within two miles of runways should be prohibited
to minimize potential for aircraft/bird strikes.
L. Describe quantities and types of solid wastes accumulated
during preparation of the land and during construction activities.
Describe locations and particular data on physical structures to
be removed or relocated. Describe the planned method of disposal
of all solid wastes generated by construction of the project.
M. Describe any dredging or land filling activities necessary
as part of the project. Describe sources of fill, disposal sites
for excess material, and methods to safeguard water quality. Refer
to the section "Dredging and Spoil Disposal" (page 51 ) for further
details.
N. Include an evaluation of the consequences of the proposed
action on the air quality around other airports in the same
metropolitan area.
0. Describe the design and operating procedures proposed
for the new airport or airport expansion. Will these procedures
'minimize the extent of air quality degradation?
P. Will all the stationary sources of air pollutant emission
associated with the proposed airport or airport expansion meet
applicable emission regulations?
Q. During any construction phase of the proposed action,
procedures must be followed which will minimize the quantities
of pollutants emitted into the ambient air. Are the procedures
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consistent with Federal Aviation Administration Advisory Circular
No. 150/5370-7, "Airport Construction Controls to Prevent Air and
Water Pollution," and with other more stringent Federal, State or
local regulations?
II. Environmental Impacts
A. Describe the primary and secondary air quality
impacts (e.g., emissions from land use developments stimulated
by the proposed action) resulting from the project. Will these
impacts prevent attainment and maintenance of Federal, State or
local ambient air quality standards?
B. The level of analysis employed for evaluating the impact of
any proposed action involving new airports or airport expansions
should reflect the magnitude of the action, the meteorological
and topographic characteristics of alternative locations and the
severity of the air pollution problem in the area where the action
is proposed. The priority designations given the Air Quality
Control Regions into which all States are divided provide an index
of the air pollution problem severity (see page 42 ). Mathematical
models of air pollutant dispersion can be used to forecast the
changes in air quality resulting from a new airport or airport
expansion. (See the brief discussion of dispersion modeling under
the guidelines section describing air quality impact evaluation
techniques for highway projects, page 42). Estimates of air
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pollutant emissions from aircraft, aircraft ground service
vehicles, airport access traffic, aircraft fuel distribution, and
airport-related stationary sources such as heating plants can be
made using information contained in two EPA publications: AP-42,
"Compilation of Air Pollutant Emission Factors," and APTD-1135,
"Guide for Compiling a Comprehensive Emission Inventory." Both
publications are available from the Office of Technical Information
and Publications, Office of Air Programs, EPA, Research Triangle
Park, North Carolina 27711. These can also be used in estimating
the air pollutants from the land development forecast to result
from the proposed airport or airport expansion.
Relatively detailed analysis of the air quality impacts of
large metropolitan airports have been made (see, for example, "An
Air Pollution Impact Methodology for Airports and Attendant Land
Use" prepared for EPA by the Argonne National Laboratory Center for
Environmental Studies under Interagency Agreement EPA-IAG-OMICD
and published January, 1973).
III. Alternatives
A. Discuss the "no-project" alternative.
B. Discuss alternative sizes and scope of the proposed
project.
C. If the proposed action is a new airport, have the air
quality impacts of other alternatives, including expansion of
existing airports, been considered? Conversely, if the proposed
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action is an expansion of an existing airport, have the air quality
impacts of a new airport been evaluated?
IV. Relationship Between Short-Term Uses vs. Long-Term Productivity
A. Discuss the need for the project. Include planning
consideration given to directing non-scheduled aircraft to satellite
airports if applicable.
B. Discuss the projects short-term use and relate it to
long-term productivity.
C. Discuss the land use commitment and how it relates to
committing future generations.
V. Irreversible and Irretrievable Commitment of Resources
A. Describe the commitment of resources involved in construction
of the project.
B. Discuss the availability of these resources.
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WATER RESOURCE DEVELOPMENT
SECTION IV-E
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Multiple-Purpose Storage
Multiple-purpose storage refers to the capture and storage of
water for a set of specific functions as opposed to a single-purpose
use of the water. Functions often incorporated into multiple-purpose
projects include storage for power, navigation, flood control,
recreation, fish and wildlife enhancement, and water supply.
I. Description
A. Describe the project setting.
B. Describe project functions in a way that a reviewer can
assess the impacts of each separable project purpose.
C. Describe the condition of the water shed, including:
1. Soil and geology characteristics.
2. Livestock areas and agricultural lands.
3. Towns, industries and waste treatment facilities.
4. Discharge points and nonpoint sources of waste
discharge.
5. Logging areas, mining or other land management and
resource utilization activities.
6. Existing or potential modifications to the natural
hydrology of the water body, existing impoundments.
D. Water Quality.
1. Describe the hydrologic characteristics of the water
body—flow ranges, etc.
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2. Flooding characteristics and flood recurrence intervals.
E. Water Quality Description
1. Describe the quality of inflowing water, recognizing
that quality is a function of condition of upstream watershed.
Identify sources of pollutants (municipal and industrial, feedlots,
agricultural areas).
2. Describe present water quality parameters under conditions
of varying flow, specifically low flow.
3. Describe fully the present sediment load carried by the
water. Describe all areas within the project watershed which
exhibit erosion potential or may contribute turbidity or sediment
due to construction and operation of the project.
F. Describe project design; include pictures and charts of
major project features.
G. Describe the project operation.
1. Schedule of releases for each project function.
2. Water level fluctuations.
3. Levels and areas of conservation and flood control
pools.
4. Other pertinent information as needed to allow reviewer
to assess impacts of project operation.
II. Environmental Impacts
A. It is important to recognize the complexity of the changes
that can occur in water quality due to impoundment and artificial
management of a river. These changes can be broadly classed as:
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1. Changes which might occur in the water due to the
presence of the project, including water quality changes due to
impoundment such as D.O. depletion in bottom layers, seasonal
temperature stratifications, effect on sediment transport, warming
trends, potential eutrophication.
2. Changes which might occur in water quality due to
project operation. For instance, operation of a reservoir for flood
control can prolong the release of turbid water later in the year
than normal and can appreciably alter temperature regime of the
stream for a distance below the dam. Similarly, elimination of
high velocity flood flows can disrupt the flushing action of the
river and can lead to increased sediment accumulation and resultant
effects on aquatic life.
III. Alternatives
Show evidence of an environmental study for all practicable
alternatives, including:
A. The alternative of "no project."
B. Scope of project.
C. Location.
D. Preservation of river. Describe the potential for
inclusion of the river in the National Wild and Scenic Rivers
System or a similar state system to preserve the natural values of
the river.
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E. Alternative methods of accomplishing each proposed project
function. For instance, in the case of flood control, show that
adequate consideration has been given to non-structural alternatives
such as flood plain management or zoning.
IV. Relationship of Short-Term Uses vs. Long-Term Productivity
A. Effects project will have on natural value of free-flowing
rivers, which must be considered diminishing resources themselves.
B. Potential long-term decreases in environmental productivity
due to artificial control of basin hydrology for short-term economic
gain.
C. Indicate how the project will agree with the goals and
aims of House Document No. 89-465 by the Presidential Task Force on
Federal Flood Control.
V. Irreversible and Irretrievable Commitment of Resources
A. Effects of connecting a free-flowing river to an operated
and artificially managed water body.
B. Potential commitment of river's flood plain for development.
Levees, Dikes and Bank Stabilization Projects
Levees and dikes are generally single-purpose flood protection
structures built adjacent to the banks of streams susceptible to
flooding. Bank stabilization projects include such features as
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reduction of erosion from riverbanks and removal of natural
growth and debris from channels to allow passage of greater flows.
I. Description
A. Detailed description of location and size of project.
B. Detailed description of project and facilities required to
construct and operate facility.
C. Describe existing water quality at site.
D. Describe construction methods to be used with description
of methods to be employed to prevent environmental damage.
E. Describe coordination with fishery agencies to avoid
turbidity during times of anadromous fish migration in project area.
II. Environmental Impacts
A. Effects on water quality due to construction and operation.
B. Effects on wildlife of reduction of riparian habitat.
C. Mitigation methods for turbidity.
D. Effects of increased velocity due to channelization of
f1ood f1ows .
E. Effect on natural drainage systems.
III. Alternatives
A. No project.
B. Structural vs. non-structural methods of satisfying project
goals, such as (in the case of flood damage reduction):
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1. Flood plain management.
2. Flood plain zoning.
3. Flood insurance.
C. Site locations, such as levees set back from riverbanks as
opposed to levees, immediately adjacent to banks.
IV. Relationship of Short-Term Use vs. Long-Term Productivity
Long-term effects of reducing flooding, recognizing the
beneficial effects of flooding on flood plain soil fertility.
V. Irreversible and Irretrievable Commitment of Resources
A. Loss of wildlife habitat due to diking and filling for
levees.
B. Commitment of material and equipment.
C. Commitment of recreation areas or possible recreation areas
Irri gati on
Irrigation is the practice of applying water to land by
controlled artificial means to promote growth of selected crops in
areas in which the natural hydro!ogic cycle may preclude such
growth.
I. Description
A. Location and size of project.
B. Describe source of water.
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C. Amount of water to be supplied per acre and method of
application.
D. Describe crops to be irrigated.
E. Describe transport systems to be utilized to minimize water
losses; describe needs to implement irrigation methods which best
utilize water resources.
F. Describe present nature of project lands, soil types,
vegetative cover, erosion potential, areas of salt-affected soils,
other pertinent information.
II. Environmental Impacts
A. Predict amount and locations of runoff to be expected.
B. Predict water quality of irrigation return flows. Consider
parameters such as:
1. Nutrient loading.
2. D.O., temperature, pesticides, total solids.
3. Quality of both surface and subsurface flows.
4. Salinity.
5. Sediment loading and turbidity.
C. Evaluate the impacts of irrigation flows on quality of the
receiving water, in terms of the same parameters.
D. Low flow problems associated with irrigation diversions.
III. Alternatives
A, No project.
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B. Alternative sources of water, such as reservoir storage vs.
ground water for irrigation purposes, and interbasin transfers.
Include sufficient information for each alternative to allow
assessment of the impacts of each.
C. Alternatives to insure the most efficient use of water.
1. Sprinkler irrigation or similar methods of water
application.
2. Covered conveyance systems.
3. Water management to minimize the adverse effects of
irrigation return flows.
IV. Relationship of Short-Term Use vs. Long-Term_ Productivity
A. Insure that the conversion of land to irrigated monoculture
will be the best and highest land use.
B. Long-term effects on adjacent life-support systems.
V. Irreversible and Irretrievable Commitment of Resources
A. Amount of land committed for single-purpose resource.
B. Amount of water to be committed compared to economic gain.
Small Boat Basins
Small boat basins are facilities which provide boat launching,
storage, supplies and services for small pleasure craft.
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I. Description
A. Describe features of the project and project area.
B. Describe size of project.
C. Detailed charts of moorage spaces, floats, or piers and
related features.
D. Map showing areas of fill placement and dredging area.
E. Describe facilities and zoning ordinances in project area.
F. Describe how the proposed marina fits into a comprehensive
plan for land use.
G. Our past experience with small boat basins shows that
considerable care must be taken in the project design to allow
adequate circulation and flushing within the basin and prevent the
development of areas of stagnant or brackish water with resultant
concentrations of pollutants. This then should be fully described
in relation to existing water circulation patterns.
II. Environmental Impacts
Environmental Impacts of wastes generated by the project.
A. Sanitary wastes.
1. In view of the recent EPA regulations regarding
the use of holding tanks for sanitary wastes generated by watercraft,
the statement should describe facilities included for the collection,
treatment and disposal of domestic sewage and other liquid wastes
generated by users of the small boat basin.
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2. Indicate number of users and quantity of wastes
to be generated.
3. Detail collection methods such as pump-out facilities.
4. Ultimate disposal of waste should be indicated—where
will wastes go after being pumped out? If into a nearby municipal
treatment system, the EIS should analyze effects on system's
ability to handle such wastes. The statement should clarify the
possibility of connecting pump-out facilities to existing sewer
lines and the effect on the system's ability to process additional
wastes.
5. Sanitary wastes generated by onshore users. Indicate
sanitary facilities provided to adequately treat and dispose of
domestic wastes in conformance with Federal and state water pollution
control regulations.
B. Oil and Hazardous Materials.
1. Methods to minimize the possibility of oil spillage
into basin are of concern and should be considered.
2. Prevention of spills by both enforcement of applicable
regulations and operational controls should be instituted to prevent
water quality degradation.
3. During marina construction operation, recommend that
the sponsor develop and enforce regulations regarding care in the
handling and movement of petroleum products and other hazardous
materials to prevent spillage.
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4. Determine the pollution potential of any material used
in project construction and evaluate the effect of that pollution.
Constituents of natural materials used for construction or beach
control may cause excessive turbidity or silting. Pollutants in
the material, or on the material in the case of treated pilings,
may be transferred to the water.
C. Venting of Bilge Water.
The venting of any bilge water within the harbor confines
can result in water quality deterioration and should be rigidly
controlled.
D. Circulation, Flushing, and Water Movement.
1. Indicate impacts on existing patterns of circulation
and water movement, should the project be implemented.
2. State the impacts which may be caused by interference
of planned structure on water movement:
a. Effects of construction of breakwaters on currents.
b. Analyze changes resulting from planned structures
and alignments and resultant effects—areas of little water movement;
changes in drift pattern, stagnant areas.
3. Circulation or flushing in a small boat basin may be
impeded, resulting in stagnant water and increased concentration of
pollutants.
a. Indicate tidal volume (tidal prism).
b. Analysis of flushing action, dispersion due to
tidal movement.
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96
c. Analyze under worst conditions--!'.e., very low tidal
range and high use of facility.
d. Will disruption of the potential existing weak
circulation in the bay preclude adequate flushing of the small boat
basin and result in water quality degradation?
III. Alternatives
A. No project.
B. Alternative design.
C. Alternative placement and dredging spoils.
D. Alternative location and size.
E. Floating Breakwaters as Alternatives.
1. Designs incorporating floating breakwaters or
structures on piles with openings to allow sufficient circulation
would minimize water quality problems associated with the basin.
2. Floating breakwaters are generally more satisfactory
environmentally than fixed breakwaters in the same location.
3. Considering often weak tidal action of many areas and
thus questionable water circulation, it is important that the
design include any measures necessary to insure adequate flushing
and minimal interference with water circulation and exchange with
the outside channel.
4. May be possible to allow adequate circulation if the
planned facilities are floating or on piles to allow water movement
through and underneath the structures.
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97
F. Alternatives to Insure the Control of Wastes.
In view of potential water quality problems resulting
from disruption of the harbor circulation and lack of flushing
action, the importance of developing and enforcing stringent
regulations cannot be overemphasized.
IV. Relationship of Short-Term Uses vs. Long-Term Productivity
Short-term economic gains vs. the loss of long-term environmental
productivity.
V. Irreversible and Irretrievable Commitment of Resources
A. Development of the estuaries and coastal waters for boat
basins, beach protection, navigation and other facilities not only
removes valuable land from production, but also may interfere with
production in other areas through modification of circulation and
littoral drift patterns. In addition, there is a potential for
water quality control problems developing.
B. Define the fish and wildlife habitat areas of primary
importance needed to maintain or increase the present population.
Determine the impact on hard-shelled clam resources, fish feeding,
rearing and migration areas, eel grass areas and existing beaches
as a result of each alternative. Determine the effect on the
aesthetics of the area.
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COMPREHENSIVE PLANNING
SECTION IV^F.
-------
Comprehensive land use planning is necessary to minimize
the adverse environmental effects of any type of resource
development. An environmental evaluation cannot be considered
complete without a consideration of the direct and secondary
effects of the project on the surrounding land use.
One must be aware of the constraints under which planning may
be progressing due to existing land-use plans, framework studies,
etc., but also the planner must recognize the need for comprehensive
planning and for adequate analysis of developments so as to minimize
adverse environmental effects and interference with natural
processes. We suggest that projects be considered in an overall
plan of development which allows for the secondary impacts of the
specific proposal in such a way as to insure rational land use and
to best protect the natural environment. For instance, in the case
of a project such as a small boat basin, we suggest that the project
be considered in an overall plan of development of small boat
marinas to avoid the haphazard construction of marinas at random
locations.
Since the proposed project will likely provide the impetus in
the area of substantial increases in commercial enterprises,
traffic, and the demand for public services, the sponsor should
indicate how the project fits into a master plan for community
development. The EIS should describe the position of the specific
project in such a plan and should indicate similar developments in
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102
the area, and any projects in the planning stage so as to allow
judgment of a number of projects to be developed in the area. The
statement should provide information on the relation of this
project to ongoing studies in the same vicinity.
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RADIATION
SECTION IV-G
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EPA uses the following guidance in the review of environmental
impact statements for nuclear power plants (see Radiation General)
OBJECTIVES OF THE PROPOSED FACILITY
Requirement for power
Demand characteristics
Power supply
System demand and resource capability comparison
Input and output diagram
Report from Regional Reliability Council
Other primary objectives
Consequences of delay
THE SITE
Site location and layout
Regional demography, land and water use
Regional historic and natural landmarks
Geology
Hydrology
Meteorology
Ecology
Background radiological characteristics
Other environmental features
THE PLANT
External appearance
Reactor and steam-electric system
Plant water use
Heat dissipation system
Radwaste system
Chemical and biocide systems
Radioactive materials inventory
Transmission facilities
ENVIRONMENTAL EFFECTS OF SITE PREPARATION, PLANT AND TRANSMISSION
FACILITIES CONSTRUCTION
Site preparation and plant construction
Transmission facilities construction
Resources committed
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106
ENVIRONMENTAL EFFECTS OF PLANT OPERATION
Effects of operation of heat dissipation system
Radiological impact on biota other than man
Exposure pathways
Radioactivity in environment
Dose rate estimates
Radiological impact on man
Exposure pathways
Liquid effluents
Gaseous effluents
Direct radiation
Radiation from facility
Transportation of radioactive materials
Other exposure pathways
Summary of annual radiation doses
Effects of chemical and biocide discharges
Effects of sanitary and other waste discharges
Effects of operation and maintenance of the transmission system
Other effects
Resources committed
EFFLUENT AND ENVIRONMENTAL MEASUREMENTS AND MONITORING PROGRAMS
Applicant's pre-operational environmental programs
Surface waters
Ground Water
Air
Land
Radiological surveys
Applicant's proposed operational monitoring programs
Radiological monitoring
Chemical effluent .monitoring
Thermal effluent monitoring
Meteorological monitoring
Ecological monitoring
Related environmental measurement and monitoring programs
ENVIRONMENTAL EFFECTS OF ACCIDENTS
Plant accidents
Transportation accidents
Other accidents
ECONOMIC AND SOCIAL EFFECTS OF PLANT CONSTRUCTION AND OPERATION
Value of delivered products
Income
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107
Employment
Taxes
Externalities
Other effects
ALTERNATIVE ENERGY SOURCES AND SITES
Alternatives not requiring the creation of new generating capacity
Alternatives requiring the creation of new generating capacity
Selection of candidate regions
Selection of candidate site-plant alternatives
Comparison of practicable alternatives and the proposed facility
PLANT DESIGN ALTERNATIVES
Cooling system (exclusive of intake and discharge)
Intake system
Discharge system
Chemical systems
Biocide systems
Sanitary waste system
Liquid radwaste systems
Gaseous radwaste systems
Transmission facilities
Other systems
The proposed plant
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PESTICIDE PROJECTS
SECTION IV-H
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The following items would pertain to any type of pesticide
use and should be included in the Environmental Impact Statement.
I. Describe the problem or situation.
A. What is the pest (e.g., grasshoppers, sagebrush)?
B. What is the affected species or areal type (e.g., specific
crop, grazing lands)?
C. What is location and area of infestation?
D. What is the severity or degree of infestation on a
measurable basis (e.g., percent of acreage involved, insect larva
counts, etc.)?
E. If possible, determine the expected longevity of the
infestation (e.g., insect larval emergence periods, sagebrush
growth cycle).
F. Report all sensitive areas within the problem zone (e.g.,
water bodies, human populations, domestic crops or animals).
G. What criteria will be used to identify the specific areas
to be treated (e.g., insect egg counts, noxious weeds per unit
area, sensitive areas)?
II. Define the intended goal in terms of accomplishment.
A. Is goal total eradication or controlled growth?
B. If goal is controlled growth (e.g., sagebrush control),
what is expected re-growth time cycle?
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112
C. How will accomplishment level(s) be monitored (e.g., insect
egg, larva or adult counts, aerial or ground vegetation surveys)?
III. What are all the alternative control methods? Each of the
alternative controls considered should be separately described in
detail using a common format for each individual method, such as:
A. Chemical alternatives.
1. Identify each pesticide by trade name; active ingredient(s)
by chemical name and percentage active component; and EPA registration
number, if applicable.
2. Define each proposed method of application and rate
(e.g., aerial, fixed-wing, and pounds actual/acre).
3. What is disposal method for empty pesticide containers?
4. Describe adverse environmental effects which cannot be
avoided such as:
a. Primary or immediate effects (e.g., fish kills, bee
kill, valuable crop damage).
b. Secondary or long-term effects (e.g., build up of
persistent pesticides in soil profile; leaching into water supplies
and uptake by biota).
c. How will each level of effect (immediate and long-
term) influence the productivity of the environment.
5. What beneficial impacts will probably occur on both
short- and long-term bases.
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113
6. Describe any irreversible and/or irretrievable
commitments of resources which may result from this method of
control. Discuss any risks of such occurances in view of potential
damages from pesticide accidents (spills, etc.)
7. Project cost analysis of pesticide and its application.
B. Mechanical Alternatives.
1. Identify the method of control (e.g., burning, chaining)
2. Describe adverse environmental effects which cannot
be avoided, such as:
a. Primary or immediate effects (e.g., air pollution,
escaped fire, destruction of valuable plants).
b. Secondary or long-term effects (e.g., erosion,
establishment of noxious plant life).
c. How will each level of effect influence the
productivity of the environment?
3. What beneficial impacts would probably occur on both
short- and long-term bases?
4. Describe any irreversible and/or irretrievable
commitments of resources which may result from this method of
control.
5. Project cost analysis of the mechanical method.
C. Biological Alternatives.
Consider and discuss all factors listed under "Chemical
Alternatives" which could pertain to biological control methods.
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114
D. Alternatives of Integrated Controls.
If feasible, discuss the potentials of using an integrated
system of control using pesticide and mechanical methods combined
to reduce the quantity of chemical required. Consider the total
impact of this control method on the environment.
E. Alternative of No Control.
Discuss the probable effects of not taking any active
measures. Particular consideration should be given to short- and
long-term effects regarding the productivity of the environment.
IV. Based upon evaluation of all alternatives, which control
method is proposed and why?
A. If pesticide, identify proposed control product by trade
and chemical name.
B. Discuss factors which resulted in choice of control method
(e.g., benefits vs. risks, costs, etc.).
V. What is the legal status of the pesticide?
A. Is the product EPA registered?
1. What is EPA registration number?
2. What label directions apply to the intended use?
B. Is the product used under a temporary or experimental use
permit?
1. If so, is the permit issued by EPA or a State (identify)?
2. What is permit number and date of issue?
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115
C. Is the product manufactured by or for yourself?
1. If so, a complete formula should be given by chemical
names.
2. Manufacturing methods and quality controls should be
defined.
3. A copy of the product label should be attached to the
EIS.
D. Describe any tests your agency would make to determine the
quality and identity of the pesticide in use.
E. Will the proposed pesticide use comply with all applicable
Federal, State and local regulations?
VI. What safety precautions will be taken regarding personnel
exposure and accidental environmental contamination (spills, etc.)
resulting from the pesticide use?
VII. How will final evaluation of goal accomplishments be made and
reported?
VIII. Discuss support and/or any oppositions to the proposed actions
which have been raised by any Federal, State or local agency, private
or public organizations, industry or individuals.
Date developed in response to the above questions should permit
an objective review of a pesticide oriented Environmental Impact
Statement.
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REGIONAL REVIEW PROCEDURES
SECTION V
-------
Accompanying each EPA review is a project rating which
briefly describes EPA's assessment of the environmental impacts
associated with the proposed action or project. Because this
"project rating" is based largely on the material presented in the
statement a second rating is given evaluating the adequacy of the
EIS. The following is a copy of the rating system used by EPA
with brief definitions of each rating category.
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120
RATING SYSTEM
1. Project rating (LO, ER, or EU).
UD (Lack of Objections). EPA has no objections to the proposed
action as described in the draft impact statement or suggests
only minor changes in the proposed action.
£R (Environmental Reservations). EPA has reservations concerning
the environmental effects of certain aspects of the proposed
action. EPA believes that further study of suggested
alternatives or modifications is required and has asked the
originating Federal agency to reassess these aspects.
EU (Environmentally Unsatisfactory). EPA believes that the
proposed action is unsatisfactory because of its potentially
harmful effect on the environment. Furthermore, the Agency
believes that the potential safeguards which might be utilized
may not adequately protect the environment from hazards arising
from this action. The Agency recommends that alternatives to
the action be analyzed further (including the possibility of
no action at all).
2. Adequacy of document (1, 2, or 3).
Category 1 (Adequate). The draft impact statement adequately
sets forth the environmental impact of the proposed project or
action as well as alternatives reasonably available to the
project or action.
Category 2 (Insufficient Information). EPA believes that the
draft impact statement does not contain sufficient information
to assess fully the environmental impact of the proposed project
or action. However, from the information submitted, the Agency
is able to make a preliminary determination of the impact on
the environment. EPA has requested that the originator provide
the information that was not included in the draft statement.
Category 3 (Inadequate). EPA believes that the draft impact
statement does not adequately assess the environmental impact of
the proposed project or action, or that the statement
inadequately analyzes reasonably available alternatives. The
Agency has requested more information and analysis concerning
the potential environmental hazards and has asked that
substantial revision be made to the impact statement.
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CHART NO I
PROCEDURES FOR REVIEWING IMPACT STATEMENTS
U S ENVIRONMENTAL PROTECTION AGENCY
REGION X
draft EIS •••-
information requests
EIS OFFICE
logged in
logs to
headquarters
weekly
A
r\
v
EIS COORDINATOR
1 analyze for EIS
program or
combined review
2 route to program(s)
with established
due dates
(W Jaspers)
<;
dir
rep
>
ect
lies
program elements
NOISE
"~ A Frankel
__ AIR
G Young
H WATER RESOURCES
H Geren
1 SOLID WASTE
1 D Hansen
1 RADIATION HEALTH
1 J Cowan
1 PESTICIDES
^ R Poss
H AQUATICS ESTUARIES
R Wagner
H DREDGING 4 FILLS
R Lee
HLAND 4 WATER
MANAGEMENT
H Geren
H ENVIRONMENTAL
EMERGENCY
J Willmann
H STATE 4 LOCAL
PLANNING
L McKee
H ECONOMIC ANALYSES
R Coughlin
non
STATE FISH &
GAME AGENCIES ETC
FEDERAL AGENCIES
COLLEGES &
UNIVERSITIES
[\
v
program repl
-25 days
EIS COORDINATOR
W Jaspers
206-442-1595
NERC
Corvallis, Oregon
CONSERVATION
GROUPS
INDIVIDUALS
CONCERNED
if programs input
changed return
for review
HEADQUARTERS
{202} 755-0920
!
ASST REG ADM/
MANAGEMENT
[\
I/ H kay
(206) 442 - 1233
i
ADMINISTRATOR
REGIONAL
J Agee
PUBLIC
special interest groups
AGENCIES CONCERNED
PUBLIC AFFAIRS
) requesting agency
april 1973
-------
ATTACHMENTS
SECTION VI
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ATTACHMENT A
CLEAN AIR AMENDMENTS OF 1970
PUB. LAW 91-604
-------
Public Law 91-604
91st Congress, H. R. 17255
December 31, 1970
84 STAT. 1676
To amend the Clean Air Act to provide for a more effective program to improve
the quality of the Nation's air.
Be it enacted by the Senate and Floitse of Representatives of the
United States of America in Congress assembled, That this Act may
je cited as the ''Clean Air Amendments of 1970''.
RESEARCH
Clean Air
Amendments
of 1970.
SEC. 2. (a) Section 103 of the Clean Air Act (42 U.S.C. 1857, et
seq.) is amended by adding at the end thereof the following new 81 stat. 486.
subsection: 42 use I857b.
''(f) (1) In carrying out research pursuant to this Act, the Admin-
istrator shall give special emphasis to research on the short- and long-
term effects of air pollutants on public health and welfare. In the
furtherance of such research, he shall conduct an accelerated research
program—
"(A) to improve knowledge of the contribution of air pol-
lutants to the occurrence of adverse effects on health, including, but
not limited to, behavioral, physiological, toxicological, and bio-
chemical effects; and
"(B) to improve knowledge of the short-and long-term effects
of air pollutants on welfare.
"(2) In carrying out the provisions of this subsection the Admin-
istrator may—
"(A) conduct epidemiological studies of the effects of air pol-
lutants on mortality and morbidity;
"(B) conduct clinical and laboratory studies on the immuno-
logic, biochemical, physiological, and the toxicological effects
including carcinogenic, teratogenic, and mutagenic effects of air
pollutants j
"(C) utilize, on a reimbursable basis, the facilities of existing
Federal scientific laboratories and research centers;
"(D) utilize the authority contained in paragraphs (1) through
(4) of subsection (b) ; and
"(E) consult with other appropriate Federal agencies to assure
that research or studies conducted pursuant to this subsection will
be coordinated with research and studies of such other Federal
agencies.
"(3) In entering into contracts under this subsection, the Adminis-
trator is authorized to contract for a term not to exceed 10 years in
duration. For the purposes of this paragraph, there are authorized
to be appropriated $15,000,000. Such amounts as are appropriated
shall remain available until expended and shall be in addition to any
other appropriations under this Act."
(b) Section 104(a) (1) of the Clean Air Act is amended to read as 42 use I857b-l.
follows:
"(1) conduct and accelerate research programs directed toward
development of improved, low-cost techniques for—
" (A) control of combustion byproducts of fuels,
"(B) removal of potential air pollutants from fuels prior
to combustion,
" (C) control of emissions from the evaporation of fuels,
" (D) improving the efficiency of fuels combustion so as to
decrease atmospheric emissions, and
"(E) producing synthetic or new fuels which, when used,
result in decreased atmospheric emissions."
54-031 O - 71
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84 STAT. 1677
Pub. Law 91-604
- 2 -
December 31, 1970
81 stat. 487. (c) Section IW(a) (2) of the Clean Air Act is amended by striding
42 use I857b-i. "and (B)" and inserting in lieu thereof the following: (B) part ot
the cost of programs to develop low emission alternatives to the pres-
ent internal combustion engine; (C) the cost to purchase vehicles and
vehicle engines, or portions thereof, for research, development, and
testing purposes; and (D)".
STATE AND REGIONAL GRANT PROGRAMS
42 use I857o. SEC. 3. (a) Section 105(a) (1) of the Clean Air Act is amended to
read as follows:
"GRANTS FOR SUPPORT OF AIR POLLUTION PLANNING AND CONTROL
PROGRAMS
"SEC. 105. (a) (1) (A) The Administrator may make grants to air
pollution control agencies in an amount up to two-thirds of the cost
of planning, developing, establishing, or improving, and up to one-
half of the cost of maintaining, programs for the prevention and con-
trol of air pollution or implementation of national primary and
secondary ambient air quality standards.
"(B) Subject to subparagraph (C), the Administrator may make
grants to air pollution control agencies within the meaning of
42 use I857h. paragraph (1), (2), or (4) of section 302(b) in an amount up to
three-fourths of the cost of planning, developing, establishing, or
improving, and up to three-fifths of the cost of maintaining, any pro-
gram for the prevention and control of air pollution or implementa-
tion of national primary and secondary ambient air quality standards
in an area that includes two or more municipalities, whether in the
same or different States.
"(C) With respect to any air quality control region or portion
thereof for which there is an applicable implementation plan under
section 110, grants under subparagraph (B) may be made only to air
pollution control agencies which have substantial responsibilities for
carrying out such applicable implementation plan."
(b) (1) Section 105 of the Clean Air Act is further amended by
adding at the end thereof the following new subsection:
"(d) The Administrator, with the concurrence of any recipient of
a grant under this section, may reduce the payments to such recipient
by the amount of the pay, allowances, traveling expenses, and any
other costs in connection with the detail of any officer or employee to the
42 use 1857g. recipient under section 301 of this Act, when such detail is for the
convenience of, and at the request of, such recipient and for the pur-
pose of carrying out the provisions of this Act. The amount by which
such payments have been reduced shall be available for payment of
such costs by the Administrator, but shall, for the purpose of deter-
mining the amount of any grant to a recipient under subsection (a)
of this section, be deemed to have been paid to such agency."
(2) Section 301 (b) of the Clean Air Act is amended (A) by strik-
ing out "Public Health Service" and inserting in lieu thereof "Envir-
onmental Protection Agency" and (B) by striking out the second
sentence thereof.
42 use I857o-i. (c) Section 106 of the Clean Air Act is amended to read as follows:
"INTERSTATE AIR QUALITY AGENCIES OR COMMISSIONS
"SEC. 106. For the purpose of developing implementation plans for
any interstate air quality control region designated pursuant to section
Post, p> 1678. 107, the Administrator is authorized to pay, for two years, up to 100
' per centum of the air quality planning program costs of any agency
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December 31, 1970
- 3 -
Pub. Law 91-604
84 STAT. 1678
designated by the Governors of the affected States, which agency shall
be capable of recommending to the Governors plans for implementation
of national primary and secondary ambient air quality standards and
shall include representation from the States and appropriate political
subdivisions within the air quality control region. After the initial
two-year period the Administrator is authorized to make grants to such
agency in an amount up to three-fourths of the air quality planning
program costs of such agency."
AMBIENT AIR QUALITY AND EMISSION STANDARDS
SEC. 4. (a) The Clean Air Act is amended by striking out section 107; 81 stat. 490.
by redesignating sections 108, 109, 110, and 111 as 115, 116, 117, and 42 use i857o-2.
118, respectively; and by inserting after section 106 the following new 42 usc I857d-
sections: I857f.
"AIR QUALITY CONTROL REGIONS
"SEC. 107. (a) Each State shall have the primary responsibility for
assuring air quality within the entire geographic area comprising such
State by submitting an implementation plan for such State which will
specify the manner in which national primary and secondary ambient
air quality standards will be achieved and maintained within each air
quality control region in such State.
"(b) For purposes of developing and carrying out implementation
plans under section 110— Post» P- 168°-
" (1) an air quality control region designated under this section
before the date of enactment of the Clean Air Amendments of
1970, or a region designated after such date under subsection (c),
shall be an air quality control region; and
"(2) the portion of such State which is not part of any such
designated region shall be an air quality control region, but such
portion may oe subdivided by the State into two or more air
quality control regions with the approval of the Administrator.
"(c) The Administrator shall, within 90 days after the date of
enactment of the Clean Air Amendments of 1970, after consultation
with appropriate State and local authorities, designate as an air
quality control region any interstate area or major intrastate area
which he deems necessary or appropriate for the attainment and
maintenance of ambient air quality standards. The Administrator
shall immediately notify the Governors of the affected States of any
designation made under this subsection.
"AIR QUALITY CRITERIA AND CONTROL TECHNIQUES
"SEC. 108. (a) (1) For the purpose of establishing national primary
and secondary ambient air quality standards, the Administrator shall
within 30 days after the date of enactment of the Clean Air Amend-
ments of 1970 publish, and shall from time to time thereafter revise, a
list which includes each air pollutant—
"(A) which in his judgment has an adverse effect on public
health or welfare;
"(B) the presence of which in the ambient air results from
numerous or diverse mobile or stationary sources; and
"(C) for which air quality criteria had not been issued before
the date of enactment of the Clean Air Amendments of 1970, but
for which he plans to issue air quality criteria under this section.
" (2) The Administrator shall issue air quality criteria for an air
pollutant within 12 months after he has included such pollutant in a
fist under paragraph (1). Air quality criteria for an air pollutant shall
accurately reflect the latest scientific knowledge useful in indicating
Air pollutant
list, publica-
tion.
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84 STAT. 1679
Pub. Law 91-604
- 4 -
December 31, 1970
Standing
consulting
committees,
establishment.
Publication
in Federal
Register.
the kind and extent of all identifiable effects on public health or welfare
which may be expected from the presence of such pollutant in the
ambient air, in varying quantities. The criteria for an air pollutant, to
' the extent practicable, shall include information on—
"(A) those variable factors (including atmospheric conditions)
which of themselves or in combination with other factors may alter
the effects on public health or welfare of such air pollutant;
"(B) the types of air pollutants which, when present in the
atmosphere, may interact with such pollutant to produce an
adverse effect on public health or welfare; and
" (C) any known or anticipated adverse effects on welfare.
"(b) (1) Simultaneously with the issuance of criteria under subsec-
tion (a), the Administrator shall, after consultation with appropriate
advisory committees and Federal departments and agencies, issue to
the States and appropriate air pollution control agencies information
on air pollution control techniques, which information shall include
data relating to the technology and costs of emission control. Such
information shall include such data as are available on available tech-
nology and alternative methods of prevention and control of air pollu-
tion. Such information shall also include data on alternative fuels,
processes, and operating methods which will result in elimination or
significant reduction of emissions.
"(2) In order to assist in the development of information on pollu-
tion control techniques, the Administrator may establish a standing
consulting committee for each air pollutant included in a list pub-
lished pursuant to subsection (a)(l), which shall be comprised of
technically qualified individuals representative of State and local
governments, industry, and the academic community. Each such com-
mittee shall submit, as appropriate, to the Administrator informa-
tion related to that required by paragraph (1).
"(c) The Administrator shall from time to time review, and, as
appropriate, modify, and reissue any criteria or information on con-
trol techniques issued pursuant to this section.
"(d) The issuance of air quality criteria and information on air
pollution control techniques shall be announced in the Federal Register
and copies shall be made available to the general public.
"NATIONAL AMBIENT AIR QUALITY STANDARDS
"SEC. 109. (a)(l) The Administrator—
"(A) within 30 days after the date of enactment of the Clean
Air Amendments of 1970, shall publish proposed regulations pre-
scribing a national primary ambient air quality standard and a
national secondary ambient air quality standard for each air
pollutant for which air quality criteria have been issued prior to
such date of enactment; and
"(B) after a reasonable time for interested persons to submit
written comments thereon (but no later than 90 days after the
initial publication of such proposed standards) shall by regulation
promulgate such proposed national primary and secondary ambi-
ent air quality standards with such modifications as he deems
appropriate.
" (2) With respect to any air pollutant for which air quality criteria
are issued after the date of enactment of the Clean Air Amendments
of 1970, the Administrator shall publish, simultaneously with the
issuance of such criteria and information, proposed national primary
and secondary ambient air quality standards for any such pollutant.
The procedure provided for in paragraph (1) (B) of this subsection
shall apply to the promulgation of such standards.
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December 31, 1970
- 5 -
Pub. Law 91-604
84 STAT. 1680
"(b) (1) National primary ambient air quality standards, prescribed
under subsection (a) shall be ambient air quality standards the attain-
ment and maintenance of which in the judgment of the Administrator,
based on such criteria and allowing an adequate margin of safety,
are requisite to protect the public health. Such primary standards
may be revised in the same manner as promulgated.
(2) Any national secondary ambient air quality standard pre-
scribed under subsection (a) shall specify a level of air quality the
attainment and maintenance of which in the judgment of the Admin-
istrator, based on such criteria, is requisite to protect the public welfare
from any known or anticipated adverse effects associated with the
presence of such air pollutant in the ambient air. Such secondary
standards may be revised in the same manner as promulgated.
"IMPLEMENTATION PLANS
"SEC. 110. (a) (1) Each State shall, after reasonable notice and
public hearings, adopt and submit to the Administrator, within nine
months after the promulgation of a national primary ambient air
quality standard (or any revision thereof) under section 109 for any
air pollutant, a plan which provides for implementation, maintenance,
and enforcement of such primary standard in each air quality control
region (or portion thereof) within such State. In addition, such State
shall adopt and submit to the Administrator (either as a part of a
plan submitted under the preceding sentence or separately) within
nine months after the promulgation of a national ambient air quality
secondary standard (or revision thereof), a plan which provides for
implementation, maintenance, and enforcement of such secondary
standard in each air quality control region (or portion thereof) within
such State. Unless a separate public hearing is provided, each State
shall consider its plan implementing such secondary standard at the
hearing required by the first sentence of this paragraph.
"(2) The Administrator shall, within four months after the date
required for submission of a plan under paragraph (1), approve or
disapprove such plan or each portion thereof. The Administrator
shall approve such plan, or any portion thereof, if he determines that
it was adopted after reasonable notice and hearing and that—
" (A) (i) in the case of a plan implementing a national primary
ambient air quality standard, it provides for the attainment of
such primary standard as expeditiously as practicable but (sub-
ject to subsection (e)) in no case later than three years from the
date of approval of such plan (or any revision thereof to take
account of a revised primary standard) ; and (ii) in the case of
a plan implementing a national secondary ambient air quality
standard, it specifies a reasonable time at which such secondary
standard will be attained;
"(B) it includes emission limitations, schedules, and timetables
for compliance with such limitations, and such other measures as
may be necessary to insure attainment and maintenance of such
primary or secondary standard, including, but not limited to,
land-use and transportation controls;
"(C) it includes provision for establishment and operation of
appropriate devices, methods, systems, and procedures necessary
to (i) monitor, compile, and analyze data on ambient air quality
and, (ii) upon request, make such data available to the
Administrator;
" (D) it includes a procedure, meeting the requirements of para-
graph (4), for review (prior to construction or modification) of
the location of new sources to which a standard of performance
will apply;
p. 1679.
Review.
-------
84 STAT.1681
Pub. Law 91-604
- 6 -
December 31, 1970
Extension.
Proposed
regulations,
publication.
"(E) it contains adequate provisions for intergovernmental
cooperation, including measures necessary to insure that emis-
sions of air pollutants from sources located in any air quality
control region will not interfere with the attainment or mainte-
nance of such primary or secondary standard in any portion of
such region outside of such State or in any other air quality
control region;
"(F) it provides (i) necessary assurances that the State will
have adequate personnel, funding, and authority to carry out
such implementation plan, (ii) requirements for installation of
equipment by owners or operators of stationary sources to monitor
emissions from such sources, (iii) for periodic reports on the
nature and amounts of such emissions; (iv) that such reports
shall be correlated by the State agency with any emission limita-
tions or standards established pursuant to this Act, which reports
shall be available at reasonable times for public inspection; and
(v) for authority comparable to that in section 303, and adequate
contingency plans to implement such authority:
"(G) it provides, to the extent necessary and practicable, for
periodic inspection and testing of motor vehicles to enforce com-
pliance with applicable emission standards; and
"(H) it provides for revision, after public hearings, of such
plan (i) from time to time as may be necessary to take account
of revisions of such national primary or secondary ambient air
quality standard or the availability of improved or more expedi-
tious methods of achieving such primary or secondary standard;
or (ii) whenever the Administrator finds on the basis of informa-
tion available to him that the plan is substantially inadequate
to achieve the national ambient air quality primary or secondary
standard which it implements.
"(3)The Administrator shall approve any revision of an implemen-
tation plan applicable to an air quality control region if he determines
that it meets the requirements of paragraph (2) and has been adopted
by the State after reasonable notice and public hearings.
" (4) The procedure referred to in paragraph (2) (D) for review,
prior to construction or modification, of the location of new sources
shall (A) provide for adequate authority to prevent the construction
or modification of any new source to which a standard of performance
under section 111 will apply at any location which the State deter-
mines will prevent the attainment or maintenance within any air
quality control region (or portion thereof) within such State of a na-
tional ambient air quality primary or secondary standard, and (B)
require that prior to commencing construction or modification of any
such source, the owner or operator thereof shall submit to such State
such information as may be necessary to permit the State to make a
determination under clause (A).
"(b) The Administrator may, wherever he determines necessary,
extend the period for submission of any plan or portion thereof which
implements a national secondary ambient air quality standard for
a period not to exceed 18 months from the date otherwise required
for submission of such plan.
"(c) The Administrator shall, after consideration of any State
hearing record, promptly prepare and publish proposed regulations
setting forth an implementation plan, or portion thereof, for a State
if—
"(1) the State fails to submit an implementation plan for any
national ambient air quality primary or secondary standard
within the time prescribed,
" (2) the plan, or any portion thereof, submitted for such State
-------
December 31, 1970 - 7 - Pub. Law 91-604
is determined by the Administrator not to be in accordance with
the requirements of this section, or
"(3) the State fails, within 60 days after notification by the
Administrator or such longer period as he may prescribe, to
revise an implementation plan as required pursuant to a pro-
vision of its plan referred to in subsection (a) (2) (H).
If such State held no public hearing associated with respect to such Hearings.
plan (or revision thereof), the Administrator shall provide oppor-
tunity for such hearing within such State on any proposed regulation.
The Administrator shall, within six months after the date required
for submission of such plan (or revision thereof), promulgate any such
regulations unless, prior to such promulgation, such State has adopted
and submitted a plan (or revision) which the Administrator deter-
mines to be in accordance with the requirements of this section.
a(d) For purposes of this Act, an applicable implementation plan
is the. implementation plan, or most recent revision thereof, which has
been approved under subsection (a) or promulgated under subsection
(c) and which implements a national primary or secondary ambient
air quality standard in a State.
"(e) (1) Upon application of a Governor of a State at the time of
submission of any plan implementing a national ambient air quality
primary standard, the Administrator may (subject to paragraph (2))
extend the three-year period referred to in subsection (a) (2) (A) (i)
for not more than two years for an air quality control region if after
review of such plan the Administrator determines that—
"(A) one or more emission sources (or classes of moving
sources) are unable to comply with the requirements of such plan
which implement such primary standard because the necessary
technology or other alternatives are not available or will not be
available soon enough to permit compliance within such three-
year period, and
" (B) the State has considered and applied as a part of its plan
reasonably available alternative means of attaining such primary
standard and has justifiably concluded that attainment of such
primary standard within the three years cannot be achieved.
"(2) The Administrator may grant an extension under paragraph
(1) only if he determines that the State plan provides for—
"(A) application of the requirements of the plan which imple-
ment such primary standard to all emission sources in such region
other than the sources (or classes) described in paragraph (1)(A)
within the three-year period, and
" (B) such interim measures of control of the sources (or classes)
described in paragraph (1) (A) as the Administrator determines
to be reasonable under the circumstances.
" (f) (1) Prior to the date on which any stationary source or class of
moving sources is required to comply with any requirement of an appli-
cable implementation plan the Governor of the State to which such
plan applies may apply to the Administrator to postpone the appli-
cability of such requirement to such source (or class) for not more
than one year. If the Administrator determines that—
"(A) good faith efforts have been made to comply with such
requirement before such date,
"(B) such source (or class) is unable to comply with such
requirement because the necessary technology or other alter-
native methods of control are not available or have not been
available for a sufficient period of time,
"(C) any available alternative operating procedures and
interim control measures have reduced or will reduce the impact
of such source on public health, and
-------
84 STAT.
Pub. Law 91-604
- 8 -
December 31, 1970
Notice,
hearing.
Judicial
review.
72 Stat. 941;
80 Stat. 1323.
Post, p. 1707.
Definitions.
"(D) the continued operation of such source is essential to
national security or to the public health or welfare.
then the Administrator shall grant a postponement of such
requirement.
"(2) (A) Any determination under paragraph (1) shall (i) be
made on the record after notice to interested persons and opportunity
for hearing, (ii) be based upon a fair evaluation of the entire record at
such hearing, and (iii) include a statement setting forth in detail the
findings and conclusions upon which the determination is based.
"(B) Any determination made pursuant to this paragraph shall
be subject to judicial review by the United States court of appeals for
the circuit which includes such State upon the filing in such court
within 30 days from the date of such decision of a petition by any
interested person praying that the decision be modified or set aside
in whole or in part. A copy of the petition shall forthwith be sent by
registered or certified mail to the Administrator and thereupon the
Administrator shall certify and file in such court the record upon
which the final decision complained of was issued, as provided in sec-
tion 2112 of title 28, United States Code. Upon the filing of such peti-
tion the court shall have jurisdiction to affirm or set aside the
determination complained of in whole or in part. The findings of the
Administrator with respect to questions of fact (including each deter-
mination made under subparagraphs (A), (B), (C), and (D) of
paragraph (1)) shall be sustained if based upon a fair evaluation
of the entire record at such hearing.
"(C) Proceedings before the court under this paragraph shall take
precedence over all the other causes of action on the docket and shall be
assigned for hearing and decision at the earliest practicable date and
expedited in every way.
"(D) Section 307(a) (relating to subpenas) shall be applicable to
any proceeding under this subsection.
"STANDARDS OF PKRFORMANCE FOR NEW STATIONARY SOURCES
"SEC. 111. (a) For purposes of this section:
"(1) The term 'standard of performance' means a standard for
emissions of air pollutants which reflects the degree of emission
limitation achievable through the application of the best system
of emission reduction which (taking into account the cost of
achieving such reduction) the Administrator determines - has
been adequately demonstrated.
"(2) The term 'new source' means any stationary source, the
construction or modification of .which is commenced after the
publication of regulations (or, if earlier, proposed regulations)
prescribing a standard of performance under this section which
will be applicable to such source.
"(3) The term 'stationary source' means any building, struc-
ture, facility, or installation which emits or may emit any air
pollutant.
"(4) The term 'modification' means any physical change in, or
change in the method of operation of, a stationary source which
increases the amount of any air pollutant emitted by such source
or which results in the emission of any air pollutant not previously
emitted.
" (5) The term 'owner or operator' means any person who owns,
leases, operates, controls, or supervises a stationary source.
"(6) The term 'existing source' means any stationary source
other than a new source.
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December 31, 1970
- 9 -
Pub. Law 91-604
84 STAT. 1684
"(b)(l)(A) The Administrator shall, within 90 days after the date List of
of enactment of the Clean Air Amendments of 1970, publish (and from categories,
time to time thereafter shall revise) a list of categories of stationary publication
sources. He shall include a category of sources in such list if he deter-
mines it may contribute significantly to air pollution which causes or
contributes to the endangerment of public health or welfare.
"(B) Within 120 days after the inclusion of a category of station-
ary sources in a list under subparagraph (A), the Administrator shall
propose regulations, establishing Federal standards of performance
for new sources within such category. The Administrator shall afford
interested persons an opportunity for written comment on such pro-
posed regulations. After considering such comments, he shall pro-
mulgate, within 90 days after such publication, such standards with
such modifications as he deems appropriate. The Administrator may,
from time to time, revise such standards following the procedure
required by this subsection for promulgation of such standards. Stand-
ards of performance or revisions thereof shall become effective upon
promulgation.
"(2) The Administrator may distinguish among classes, types, and
sizes within categories of new sources for the purpose of establishing
such standards.
"(3) The Administrator shall, from time to time, issue information
on pollution control techniques for categories of new sources and air
pollutants subject to the provisions of this section.
"(4) The provisions of this section shall apply to any new source
owned or operated by the United States.
"(c) (1) Each State may develop and submit to the Administrator
a procedure for implementing and enforcing standards of performance
for new sources located in such State. If the Administrator finds the
State procedure is adequate, he shall delegate to such State any
authority he has under this Act to implement and enforce such stand-
ards (except with respect to new sources owned or operated by the
United States).
"(2) Nothing in this subsection shall prohibit the Administrator
from enforcing any applicable standard of performance under this
section.
"(d) (1) The Administrator shall prescribe regulations which shall
establish a procedure similar to that provided by section 110 under Ar
which each State shall submit to the Administrator a plan which
(A) establishes emission standards for any existing source for any air
pollutant (i) for which air quality criteria have not been issued or
which is not included on a list published under section 108(a) or 112
(b) (1) (A) but (ii) to which a standard of performance under sub- AT
section (b) would apply if such existing source were a new source, £c
and (B) provides for the implementation and enforcement of such
emission standards.
"(2) The Administrator shall have the same authority—
"(A) to prescribe a plan for a State in cases where the State
fails to submit a satisfactory plan as he would have under section
110 (c) in the case of failure to submit an implementation plan,
and
"(B) to enforce the provisions of such plan in cases where the
State fails to enforce them as he would have under sections 113
and 114 with respect to an implementation plan. p<
"(e) After the effective date of standards of performance promul- ~
gated under this section, it shall be unlawful for any owner or operator
of any new source to operate such source in violation of any standard
of performance applicable to such source.
p. 1680.
1678;
1685.
p. 1686.
-------
84 STAT. 1685
Pub. Law 91-604
- 10 -
December 31, 1970
"NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
Definitions. "'SEC. 112. (a) For purposes of this section—
"(1) The term 'hazardous air pollutant' means an air pollutant
to which no ambient air quality standard is applicable and which
in the judgment of the Administrator may cause, or contribute
to, an increase in mortality or an increase in serious irreversible,
or incapacitating reversible, illness.
"(2) The term 'new source' means a stationary source the
construction or modification of which is commenced after the
Administrator proposes regulations under this section estab-
lishing an emission standard which will be applicable to such
source.
"(3) The terms 'stationary source', 'modification', 'owner or
operator' and 'existing source' shall have the same meaning as
Ante, p. 1683. such terms have under section 111 (a).
list, pubiioa- " (b) (1) (A) The Administrator shall, within 90 days after the date
tion. of enactment of the Clean Air Amendments of 1970, publish (and
shall from time to time thereafter revise) a list which includes each
hazardous air pollutant for which he intends to establish an emission
standard under this section.
Proposed "(B) Within 180 days after the inclusion of any air pollutant in
regulations; such list, the Administrator shall publish proposed regulations estab-
hearing. lishing emission standards for such pollutant together with a notice
of a public hearing within thirty days. Not later than 180 days after
such publication, the Administrator shall prescribe an emission stand-
ard for such pollutant, unless he finds, on the basis of information
presented at such hearings, that such pollutant clearly is not a hazard-
ous air pollutant. The Administrator shall establish any such standard
at the level which in his judgment provides an ample margin of safety
to protect the public health from such hazardous air pollutant.
"(C) Any emission standard established pursuant to this section
shall become effective upon promulgation.
"(2) The Administrator shall, from time to time, issue information
on pollution control techniques for air pollutants subject to the pro-
visions of this section.
;i(c)(l) After the effective date of any emission standard under
this section—
"(A) no person may construct any new source or modify any
existing source which, in the Administrator's judgment, will emit
an air pollutant to which such standard applies unless the Admin-
istrator finds that such source if properly operated will not cause
emissions in violation of such standard, and
"(B) no air pollutant to which such standard applies may be
emitted from any stationary source in violation of such standard,
except that in the case of an existing source—
"(i) such standard shall not apply until 90 days after its
effective date, and
"(ii) the Administrator may grant a waiver permitting
such source a period of up to two years after the effective date
of a standard to comply with the standard, if he finds that
such period is necessary for the installation of controls and
that steps will be taken during the period of the waiver to
assure that the health of persons will be protected from
imminent endangerment.
Presidential "(2) The President may exempt any stationary source from corn-
exemption, pldance with paragraph (1) for a period of not more than two years
if he finds that the technology to implement such standards is not
available and the operation of such source is required for reasons of
Extensi on. national security. An exemption under this paragraph may be extended
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December 31, 1970
- 11 -
Pub. Law 91-604
84 STAT. 1686
for one or more additional periods, each period not to exceed two years.
The President shall make a report to Congress with respect to each Report to
exemption (or extension thereof) made under this paragraph. congress.
"(d) (1) Each State may develop and submit to the Administrator
a procedure for implementing and enforcing emission standards for
hazardous air pollutants for stationary sources located in such State.
If the Administrator finds the State procedure is adequate, he shall
delegate to such State any authority he has under this Act to imple-
ment and enforce such standards (except with respect to stationary
sources owned or operated by the United States).
"(2) Nothing in this subsection shall prohibit the Administrator
from enforcing any applicable emission standard under this section.
"FEDERAL ENFORCEMENT
"SEC. 113. (a) (1) Whenever, on the basis of any information avail- violations.
able to him, the Administrator finds that any person is in violation of
any requirement of an applicable implementation plan, the Admin-
istrator shall notify the person in violation of the plan and the State
in which the plan applies of such finding. If such violation extends Compliance
beyond the 30th day after the date of the Administrator's notification, order.
the Administrator may issue an order requiring such person to comply
with the requirements of such plan or he may bring a civil action in
accordance with subsection (b).
"(2) "Whenever, on the basis of information available to him, the
Administrator finds that violations of an applicable implementation
plan are so widespread that such violations appear to result from a
failure of the State in which the plan applies to enforce the plan
effectively, he shall so notify the State. If the Administrator finds such
failure extends beyond the 30th day after such notice, he shall give
public notice of such finding. During the period beginning with such
public notice and ending when such State satisfies the Administrator
that it will enforce such plan (hereafter referred to in this section as
•period of federally assumed enforcement'), the Administrator may
enforce any requirement of such plan with respect to any person—
"(A) by issuing an order to comply with such requirement, or
"(B) by bringing a civil action under subsection (b).
'•(3) Whenever, on the basis of any information available to him,
the Administrator finds that any person is in violation of section 111
(e) (relating to new source performance standards) or 112(c) (relat- Ante, pp. 1684,
ing to standards for hazardous emissions), or is in violation of any 1685.
requirement of section 114 (relating to inspections, etc.), he may issue Post, p. 1687.
an order requiring such person to comply with such section or require-
ment, or he may bring a civil action in accordance with subsection (b).
"(4) An order issued under this subsection (other than an order
relating to a violation of section 112) shall not take effect until the
person to whom it is issued has had an opportunity to confer with the
Administrator concerning the alleged violation. A copy of any order
issued under this subsection shall be sent to the State air pollution
control agency of any State in which the violation occurs. Any order
issued under this subsection shall state with reasonable specificity the
nature of the violation, specify a time for compliance which the Admin-
istrator determines is reasonable, taking into account the serious-
ness of the violation and any good faith efforts to comply with
applicable requirements. In any case in which an order under this
subsection (or notice to a violator under paragraph (1)) is issued
to a corporation, a copy of such order (or notice) shall be issued to
appropriate corporate officers.
-------
84 STAT. 1687
Pub. Law 91-604
- 12 -
December 31, 1970
Ante, pp. 1683,
1685.
Infra.
Notice; U. S.
district court.
Penalty.
Ante.
1680.
Post, p. 1705.
"(b) The Administrator may commence a civil action for appro-
priate relief, including a permanent or temporary injunction, when-
ever any person—
" (1) violates or fails or refuses to comply with any order issued
under subsection (a); or
"(2) violates any requirement of an applicable implementation
plan during any period of Federally assumed enforcement more
than 30 days after having been notified by the Administrator
under subsection (a) (1) of a finding that such person is violating
such requirement; or
"(3) violates section 111 (e) or 112 (c) ; or
"(4) fails or refuses to comply with any requirement of section
114-
Any action under this subsection may be brought in the district court
of the United States for the district in which the defendant is located
or resides or is doing business, and such court shall have jurisdiction
to restrain such violation and to require compliance. Notice of the
commencement of such action shall be given to the appropriate State
air pollution control agency.
" (c) (1) Any person who knowingly—
"(A) violates any requirement of an applicable implementa-
tion plan during any period of Federally assumed enforcement
more than 30 days after having been notified by the Adminis-
trator under subsection (a) (1) that such person is violating such
requirement, or
"(B) violates or fails or refuses to comply with any order
issued by the Administrator under subsection (a), or
li(C) violates section lll(e) or section 112(c).
shall be punished by a fine of not more than $25,000 per day of viola-
tion, or by imprisonment for not more than one year, or by both. If
the conviction is for a violation committed after the first conviction of
such person under this paragraph, punishment shall be by a fine of
not more than $50,000 per day of violation, or by imprisonment for
not more than two years, or by both.
"(2) Any person who knowingly makes any false statement, repre-
sentation, or certification in any application, record, report, plan, or
other document filed or required to be maintained under this Act or
who falsifies, tampers with, or knowingly renders inaccurate any moni-
toring device or method required to be maintained under this Act,
shall upon conviction, be punished by a fine of not more than $10,000,
or by imprisonment for not more than six months, or by both.
''INSPECTIONS, MONITORING, AND ENTRY
"SEC. 114. (a) For the purpose (i) of developing or assisting in the
development of any implementation plan under section HOorlll(d),
any standard of performance under section 111, or any emission
standard under section 112, (ii) of determining whether any person
is in violation of any such standard or any requirement of such a
plan, or (iii) carrying out section 303—
"(1) the Administrator may require the owner or operator
of any emission source to (A) establish and maintain such records,
(B) make such reports, (C) install, use, and maintain such mon-
itoring equipment or methods, (D) sample such emissions (in
accordance with such methods, at such locations, at such intervals.
and in such manner as the Administrator shall prescribe), and
(E) provide such other information as he may reasonably
require; and
"(2) the Administrator or his authorized representative, upon
presentation of his credentials—
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December 31, 1970
- 13 -
Pub. Law 91-604
84 STAT. 1688
"(A) shall have a right of entry to, upon, or through any
premises in which an emission source is located or in which
any records required to be maintained under paragraph (1)
of this section are located, and
" (B) may at reasonable times have access to and copy any
records, inspect any monitoring equipment or method
required under paragraph (1), and sample any emissions
which the owner or operator of such source is required to
sample under paragraph (1).
"(b) (1) Each State may develop and submit to the Administrator Authority,
a procedure for carrying out this section in such State. If the Admin- delegation
istrator finds the State, procedure is adequate, he may delegate to such to State.
State any authority he has to carry out this section (except with respect
to new sources owned or operated by the United States).
•'(2) Nothing in this subsection shall prohibit the Administrator
from carrying out this section in a State.
" (c) Any records, reports or information obtained under subsection Confidential
(a) shall be available to the public, except that upon a showing satis- information.
factory to the Administrator by any person that records, reports, or
information, or particular part thereof, (other than emission data) to
which the Administrator has access under this section if made public,
would divulge methods or processes entitled to protection as trade
secrets of such person, the Administrator shall consider such record,
report, or information or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18 of the United
States Code, except that such record, report, or information may be 52 stat. 791.
disclosed to other officers, employees, or authorized representatives
of the United States concerned with carrying out this Act or when
relevant in any proceeding under this Act."
(b) Section 115 of the Clean Air Act (as so redesignated by sub- el stat. 491.
section (a) of this section) is amended as follows: 42 use I857d.
(1) Strike out the section heading and inserting in lieu thereof Ante, p. 1678.
"ABATEMENT BY MEANS OF CONFERENCE PROCEDURE IN CERTAIN
CASES".
(2) Insert "and which is covered by subsection (b) or (c)"
after "persons" in subsection (a).
(3) Strike out subsections (b), (c), and (k).
(4) Redesignate subsections (d)(l) (A), (B), and (C) as
paragraphs (1), (2), and (3) of subsection (b), respectively.
(5) Insert after subsection (b) (3) (as so redesignated) the
following:
"(4) A conference may not be called under this subsection with
respect to an air pollutant for which (at tlie time the conference is
called) a national primary or secondary ambient air quality standard
is in effect under section 109." Ante, p. 1679.
(6) Redesignate subsection (d)(l)(D) as subsection (c),and
strike out "subparagraph" each place it appears therein and insert
in lieu thereof "subsection''.
(7) Redesignate subsections (d) (2) and (d) (3) as subsections
(d) (1) and (d) (2),respectively.
(8) Strike out "such conference" in subsection (d) (1) (as so
redesignated) and inserting in lieu thereof "any conference under
this section".
(9) Strike out "under subparagraph (D) of subsection (d)"
in subsection (g)(l) and inserting in lieu thereof "subsection
(c)"-
54-031 O - 71 - Z
-------
84 STAT. 1689
Pub. Law 91-604
- 14 -
December 31, 1970
pp.
1683,
Ante,
1685.
81 Stat. 486
42 USC 1857b
81 Stat. 497;
Ante, p. 1678.
42 USC 1857d-l.
81 Stat. 501.
42 USC 1857f-
6a.
Post, pp. 1694,
1698, 1704.
42 usc I857d. (10) Add at the end thereof the following new subsection :
"(k) No order or judgment under this section; or settlement, com-
promise, or agreement respecting any action under this section
(whether or not entered or made before the date of enactment of the
Clean Air Amendments of 1970) shall relieve any person of any obli-
gation to comply with any requirement of an applicable implementa-
tion plan, or with any standard prescribed under section 111 or 112."
(2) Section 103(e) of the Clean Air Act is amended by striking out
"section 108(a)" and inserting in lieu thereof "section 115"; and by
striking out "subsections (d), (e), and (f) of section 108" and insert-
ing in lieu thereof "subsections (b), (c), (d), (e), and (f) of section
115".
(c) Section 116 of the Clean Air Act (as so redesignated by sub-
section (a) of this section) is amended to read as follows:
"RETENTION OF STATE AUTHORITY
"SEC. 116. Except as otherwise provided in sections 209, 211 (c) (4),
and 233 (preempting certain State regulation of moving sources)
nothing in this Act shall preclude or deny the right of any State or
political subdivision thereof to adopt or enforce (1^ any standard or
limitation respecting emissions of air pollutants or (2) any require-
ment respecting control or abatement of air pollution; except that if
an emission standard or limitation is in effect under an applicable
implementation plan or under section 111 or 112, such State or polit-
ical subdivision may not adopt or enforce any emission standard or
limitation which is less stringent than the standard or limitation
under such plan or section."
(d) The Clean Air Act is amended by adding at the end of section
81 Stat. 498. 117 (as so redesignated by subsection (a) of this section) the follow-
42 usc I857e. ing new subsection :
"(f) Prior to—
"(1) issuing criteria for an air pollutant under section 103(a)
('•*),
"(2) publishing any list under section lll(b)(l)(A) or 112
"(3) publishing any standard under section lll(b) (1) (B) or
section 112(b) (1) (B), or
Post, p. 1690. "(4) publishing any regulation under section 202(a),
the Administrator shall, to the maximum extent practicable within the
time provided, consult with appropriate advisory committees, inde-
pendent experts, and Federal departments and agencies."
FEDERAL FACILITIES
81 stat. 499. SEC. 5. Section 118 of the Clean Air Act (as so redesignated by sec-
42 usc I857f. tion4(a) of this Act) isamended to read as follows:
"CONTROL OF POLLUTION FROM FEDERAL FACILITIES
''SEC. 118. Each department, agency, and instrumentality of the
executive, legislative, and judicial branches of the Federal Government
(1) having jurisdiction over any property or facility, or (2) engaged
in any activity resulting, or which may result, in the discharge of air
pollutants, shall comply with Federal, State, interstate, and local
requirements respecting control and abatement of air pollution to the
Exemption. same extent that any person is subject to such requirements. The
President may exempt any emission source of any department, agency,
or instrumentality in the executive branch from compliance with
such a requirement if he determines it to be in the paramount interest
-------
December 31, 1970
- 15 -
Pub. Law 91-604
84 STAT. 1690
of the United States to do so, except that no exemption may be
granted from section 111, and an exemption from section 112 may be
granted only in accordance with section 112(c). No such exemption 1685-
shall be granted clue to lack of appropriation unless the President
shall have specifically requested such appropriation as a part of the
budgetary process and the Congress shall have failed to make available
such requested appropriation. Any exemption shall be for a period
not in excess of one year, but additional exemptions may be granted
for periods of not to exceed one year upon the President's making
a new determination. The President shall report each January to the
Congress all exemptions from the requirements of this section granted
during the preceding calendar year, together with his reason for
granting each such exemption.''
PP« 1683»
Report to
Congress.
MOTOR VEHICLE EMISSION STANDARDS
SEC. 6. (a) Section 202 of the Clean Air Act is amended to read as 81 stat. 499.
follows: 42 USC 1857f-l.
"ESTABLISHMENT OF STANDARDS
"SEC. 202. (a) Except as otherwise provided in subsection (b)— Air pollutant
"(1) The Administrator shall by regulation prescribe (and emissions.
from time to time revise) in accordance with the provisions of this
section, standards applicable to the emission of any air pollutant
from any class or classes of new motor vehicles or new motor
vehicle engines, which in his judgment causes or contributes to,
or is likely to cause or to contribute to, air pollution which
endangers the public health or welfare. Such standards shall be
applicable to such vehicles and engines for their useful life (as
determined under subsection (d)), whether such vehicles and
engines are designed as complete systems or incorporated devices
to prevent or control such pollution.
"(2) Any regulation prescribed under this subsection (and
any revision thereof) shall take effect after such period as the
Administrator finds necessary to permit the development and
application of the requisite technology, giving appropriate con-
sideration to the cost of compliance within such period.
''(b) (1) (A) The regulations under subsection (a) applicable to Model year
emissions of carbon monoxide and hydrocarbons from light duty 1975, reduction
vehicles and engines manufactured during or after model year 1975 requirement.
shall contain standards which require a reduction of at least 90 per
centum from emissions of carbon monoxide and hydrocarbons allow-
able under the standards under this section applicable to light duty
vehicles and engines manufactured in model year 1970.
"(B) The regulations under subsection (a) applicable to emissions Model year
of oxides of nitrogen from light duty vehicles and engines manufac- 1976, reduction
tured during or after model year 1970 shall contain standards which requirement.
require a reduction of at least 90 per centum from the average of
emissions of oxides of nitrogen actually measured from light duty
vehicles manufactured during model year 1971 which are not subject
to any Federal or State emission standard for oxides of nitrogen.
Such average of emissions shall be determined by the Administrator
on the basis of measurements made by him.
"(2) Emission standards under paragraph (1), and measurement Promulgation,
techniques on which such standards are based (if not promulgated date.
prior to the date of enactment of the Clean Air Amendments of 1970),
shall be prescribed by regulation within 180 days after such date.
-------
84 STAT. 1691
Pub. Law 91-604
- 16 -
December 31, 1970
"Model year."
"Light duty
vehicles and
engines."
Report to
Congress.
Post, p. 1707.
Standards,
effective date
suspension;
application.
Interim
standards.
"(3) For purposes of this part—
" (A) (i) The term 'model year' with reference to any specific
calendar year means the manufacturer's annual production period
(as determined by the Administrator) which includes January 1
of such calendar year. If the manufacturer has no annual pro-
duction period, the term 'model year' shall mean the calendar
year.
"(ii) For the purpose of assuring that vehicles and engines
manufactured before the beginning of a model year were not
manufactured for purposes of circumventing the effective date
of a standard required to be prescribed by subsection (b), the
Administrator may prescribe regulations defining 'model year'
otherwise than as provided in clause (i).
"(B) The term 'light duty vehicles and engines' means new
light duty motor vehicles and new light duty motor vehicle
engines, as determined under regulations of the Administrator.
"(4) On July 1 of 1971, and of each year thereafter, the Admin-
istrator shall report to the Congress with respect to the development
of systems necessary to implement the emission standards established
pursuant to this section. Such reports shall include information
regarding the continuing effects of such air pollutants subject to stand-
ards under this section on the public health and welfare, the extent
and progress of efforts being made to develop the necessary systems,
the costs associated with development and application of such systems,
and following such hearings as he may deem advisable, any recom-
mendations for additional congressional action necessary to achieve
the purposes of this Act. In gathering information for the purposes
of this paragraph and in connection with any hearing, the provisions
of section 307 (a) (relating to subpenas) shall apply.
"(5) (A) At any time after January 1, 1972, any manufacturer
may file with the Administrator an application requesting the sus-
pension for one year only of the effective date of any emission standard
required by paragraph (1)(A) with respect to such manufacturer.
The Administrator shall make his determination with respect to any
such application within 60 days. If he determines, in accordance
with the provisions of this subsection, that such suspension should
be granted, he shall simultaneously with such determination prescribe
by regulation interim emission standards which shall apply (in lieu
of the standards required to be prescribed by paragraph (1) (A)) to
emissions of carbon monoxide or hydrocarbons (or both) from such
vehicles and engines manufactured during model year 1975.
" (B) At any time after January 1,1973, any manufacturer may file
with the Administrator an application requesting the suspension for
one year only of the effective date of any emission standard required
by paragraph (1) (B) with respect to such manufacturer. The
Administrator shall make his determination with respect to any such
application within 60 days. If he determines, in accordance with
the provisions of this subsection, that such suspension should be
granted, he shall simultaneously with such determination prescribe
by regulation interim emission standards which shall apply (in lieu
of the standards required to be prescribed by paragraph (1) (B)) to
emissions of oxides of nitrogen from such vehicles and engines manu-
factured during model year 1976.
"(C) Any interim standards prescribed under this paragraph shall
reflect the greatest degree of emission control which is achievable by
application of technology which the Administrator determines is
available, giving appropriate consideration to the cost of applying
such technology within the period of time available to manufacturers.
-------
December 31, 1970
- 17 -
Pub. Law 91-604
84 STAT. 1692
"(D) Within 60 days after receipt of the application for any such Hearing.
suspension, and after public hearing, the Administrator shall issue a
decision granting or refusing such suspension. The Administrator shall
grant such suspension only if he determines that (i) such suspension
is essential to the public interest or the public health and welfare of
the United States, (ii) all good faith efforts have been made to meet
the standards established by this subsection, (iii) the applicant has
established that effective control technology, processes, operating
methods, or other alternatives are not available or have not been
available for a sufficient period of time to achieve compliance prior
to the effective date of such standards, and (iv) the study and investi-
gation of the National Academy of Sciences conducted pursuant to
subsection (c) and other information available to him has not indi-
cated that technology, processes, or other alternatives are available
to meet such standards.
''(E) Nothing in this paragraph shall extend the effective date of prohibition.
any emission standard required to be prescribed under this subsection
for more than one year.
"(c)(l) The Administrator shall undertake to enter into appro- Feasibility
priate arrangements with the National Academy of Sciences to conduct study, funds.
a comprehensive study and investigation of the technological feasi-
bility of meeting the emissions standards required to be prescribed
by the Administrator by subsection (b) of this section.
"(2) Of the funds authorized to be appropriated to the Adminis-
trator by this Act, such amounts as are required shall be available to
carry out the study and investigation authorized by paragraph (1)
of this subsection.
"(3) In entering into any arrangement with the National Academy Reports to
of Sciences for conducting the study and investigation authorized by Administrator
paragraph (1) of this subsection, the Administrator shall request the and Congress.
National Academy of Sciences to submit semiannual reports on
the progress of its study and investigation to the Administrator and
the Congress, beginning not later than July 1, 1971, and continuing
until such study and investigation is completed.
" (4) The Administrator shall furnish to such Academy at its request information,
any information which the Academy deems necessary for the purpose availability.
of conducting the investigation and study authorized by paragraph
(1) of this subsection. For the purpose of furnishing such information,
the Administrator may use any authority he has under this Act (A)
to obtain information from any person, and (B) to require such person
to conduct such tests, keep such records, and make such reports respect-
ing research or other activities conducted by such person as may be
reasonably necessary to carry out this subsection.
"(d) The Administrator shall prescribe regulations under which
the useful life of vehicles and engines shall be determined for purposes
of subsection (a) (1) of this section and section 207. Such regulations
shall provide that useful life shall—
"(1) in the case of light duty vehicles and light duty vehicle
engines, be a period of use of five years or of fifty thousand miles
(or the equivalent), whichever first occurs; and
"(2) in the case of any other motor vehicle or motor vehicle
engine, be a period of vise set forth in paragraph (1) unless the
Administrator determines that a period of use of greater duration
or mileage is appropriate.
"(e) In the event a new power source or propulsion system for new
motor vehicles or new motor vehicle engines is submitted for certifica-
tion pursuant to section 206 (a), the Administrator may postpone cer- post, p. 1694.
tification until he has prescribed standards for any air pollutants
emitted by such vehicle or engine which cause or contribute to, or are
Useful life
of vehicle.
Ante, p. 1690;
Post, p. 1696.
-------
84 STAT. 1693
Pub. Law 91-604
December 31, 1970
Prohibited
aots.
81 Stat. 409.
42 USC 1857f-2
Infra.
1690.
1696.
Vehicles
for export.
Exemption.
likely to cause or contribute to, air pollution which endangers the
public health or welfare but for which standards have not been pre-
scribed under subsection (a)."
ENFORCEMENT OF MOTOR VEHICLE EMISSION STANDARDS
SEC. 7. (a) (1) Section 203(a) (1) of the Clean Air Act is amended
to read as follows:
"(1) in the case of a manufacturer of new motor vehicles or
new motor vehicle engines for distribution in commerce, the sale,
or the offering for sale, or the introduction, or delivery for intro-
duction, into commerce, or (in the case of any person, except as
provided by regulation of the Administrator), the importation
into the United States, of any new motor vehicle or new motor
vehicle engine, manufactured after the effective date of regula-
tions under this part which are applicable to such vehicle or
engine unless such vehicle or engine is covered by a certificate of
conformity issued (and in effect) under regulations prescribed
under this part (except as provided in subsection (b)) ;"
(2) Section 203(a) (2) of such Act is amended by striking out "sec-
tion 207-' and inserting in lieu thereof "section 208'', and by striking
out "or" at the end thereof.
(3) Section 203(a) (3) of such Act is amended by striking out the
period at the end thereof and inserting in lieu thereof the following:
", or for any manufacturer or dealer knowingly to remove or render
inoperative any such device or element of design after such sale and
delivery to the ultimate purchaser; or''.
(4) Section 203(a) of such Act is amended by inserting at the end
thereof the following :u -,v paragraph:
"(4) for any manufacturer of a new motor vehicle or new motor
vehicle engine subject to standards prescribed under section 202—
"(A) to sell or lease any such vehicle or engine unless such
manufacturer has complied with the requirements of section
207 (a) and (b) with respect to such vehicle or engine, and
unless a label or tag is affixed to such vehicle or engine in
accordance with section 207(c) (3), or
"(B) to fail or refuse to comply with the requirements of
section 207 (c) or (e)."
(5) Section 203(b) (1) of such Act is amended by striking out ", or
class thereof, from subsection (a)," and inserting in lieu thereof "from
subsection (a)", and by striking out "to protect the public health or
welfare,"
(6) Section 203(b)(2) of such Act is amended by striking out
"importation by a manufacturer" and inserting in lieu thereof "impor-
tation or imported by any person".
(7) Section 203 of the Clean Air Act is amended—
(A) by amending subsection (b) (3) to read as follows :
"(3) A new motor vehicle or new motor vehicle engine intended
solely for export, and so labeled or tagged on the outside of the con-
tainer and on the vehicle or engine itself, shall be subject to the pro-
visions of subsection (a), except that if the country of export has
emission standards which differ from the standards prescribed under
subsection (a), then such vehicle or engine shall comply with the
standards of such country of export."; and
(B) by adding at the end thereof the following new subsection:
"(c) Upon application therefor, the Administrator may exempt
from section 203 (a) (3) any vehicles (or class thereof) manufactured
before the 1974 model year from section 203 (a) (3) for the purpose
of permitting modifications to the emission control device or system
-------
December 31, 1970 - 19 - Pub. Law 91-604
84 STAT. 1694
of such vehicle in order to use fuels other than those specified in cer-
tification testing under section 206(a)(l), if the Administrator, on infra..
the basis of information submitted by the applicant, finds that such
modification will not result in such vehicle or engine not complying
with standards under section 202 applicable to such vehicle or engine. Ante, p. 1690.
Any such exemption shall identify (1) the vehicle or vehicles so
exempted, (2) the specific nature of the modification, and (3) the
person or class of persons to whom the exemption shall apply."
(b) Section 204(a) of such Act is amended by striking out ''or (3)" 81 Stat. 500.
and inserting in lieu thereof "(3), or (4)". 42 use iB57f-3.
(c) Section 205 of such Act is amended to read as follows :
PENALTIES
"SEC. 205. Any person who violates paragraph (1), (2), (3), or (4)
of section 203(a) shall be subject to a civil penalty of not more than Ante, p. 1693.
$10,000. Any such violation with respect to paragraph (1), (2), or (4)
of section 203(a) shall constitute a separate offense witli respect to
ea^h motor vehicle or motor vehicle engine.''
COMPLIANCE WITH MOTOR VEHICLE EMISSION STANDARDS
SEC. 8. (a) The Clean Air Act is amended by striking out sections
206 and 211; by redesignating sections 207, 208, 209, 210, and 212 as 42 use l857f-5
208, 209, 210, 211, and 213, respectively ; and by inserting after section to l857f-7.
205 the following new sections:
"MOTOR VEHICLE AND MOTOR VEHICLE ENC.INE COMPLIANCE TESTING AND
CERTIFICATION
"SEC. 206. (a)(l) The Administrator shall test, or require to be
tested in such manner as he deems appropriate, any new motor vehicle
or new motor vehicle engine submitted by a manufacturer to determine
whether such vehicle or engine "conforms with the regulations pre-
scribed under section 202 of this Act. If such vehicle or engine con-
forms to such regulations, the Administrator shall issue a certificate of
conformity upon such terms, and for such period (not in excess of one
year), as he may prescribe.
"(2) The Administrator shall test any emission control system incor-
porated in a motor vehicle or motor vehicle engine submitted to him
by any person, in order to determine whether such system enables such
vehicle or engine to conform to the standards required to be prescribed
under section 202 (b) of this Act. If the Administrator finds on the
basis of such tests that such vehicle or engine conforms to such stand-
ards, the Administrator shall issue a verification of compliance with
emission standards for such system when incorporated in vehicles of
a class of which the tested vehicle is representative. He shall inform
manufacturers and the National Academy of Sciences, and make avail-
able to the public, the results of such tests. Tests under this paragraph
shall be conducted under such terms and conditions (including require-
ments for preliminary testing by qualified independent laboratories)
as the Administrator may prescribe by regulations.
"(b) (1) In order to determine whether new motor vehicles or new
motor vehicle engines being manufactured by a manufacturer do in
fact conform with the regulations with respect to which the certificate
of conformity was issued, the Administrator is authorized to test such
vehicles or engines. Such tests may be conducted by the Administrator
di^-^tly or, in accordance with conditions specified by the Adminis-
trator, by the manufacturer.
-------
84 STAT. 1695
Pub. Law 91-604
- 20 -
December 31, 1970
Hearing.
Judicial
review.
72 Stat. 941.
Additional
evidence.
80 Stat. 392.
5 USC 701.
Inspection.
"(2) (A) (i) If, based on tests conducted under paragraph (1) on a
sample of new vehicles or engines covered by a certificate of conform-
ity, the Administrator determines that all or part of the vehicles or
engines so covered do not conform with the regulations with respect
to which the certificate of conformity was issued, he may suspend or
revoke such certificate in whole or in part, and shall so notify the
manufacturer. Such suspension or revocation shall apply in the case
of any new motor vehicles or new motor vehicle engines manufactured
after the date of such notification (or manufactured before such date
if still in the hands of the manufacturer), and shall apply until such
time as the Administrator finds that vehicles and engines manufac-
tured by the manufacturer do conform to such regulations. If, during
any period of suspension or revocation, the Administrator finds that
a vehicle or engine actually conforms to such regulations, he shall
issue a certificate of conformity applicable to such vehicle or engine.
''(ii) If, based on tests conducted under paragraph (1) on any new-
vehicle or engine, the Administrator determines that such vehicle
or engine does not conform with such regulations, he may suspend or
revoke such certificate insofar as it applies to such vehicle or engine
until such time as he finds such vehicle or engine actually so conforms
with such regulations, and he shall so notify the manufacturer.
"(B)(i) At the request of any manufacturer the Administrator
shall grant such manufacturer a hearing as to whether the tests have
been properly conducted or any sampling methods have been properly
applied, and make a determination on the record with respect to any
suspension or revocation under subparagraph (A) ; but suspension or
revocation under subparagraph (A) shall not be stayed by reason of
such hearing.
"(ii) In any case of actual controversy as to the validity of any
determination under clause (i), the manufacturer may at any time
prior to the 60th day after such determination is made file a petition
with the United States court of appeals for the circuit wherein such
manufacturer resides or has his principal place of business for a judi-
cial review of such determination. A copy of the petition shall be forth-
with transmitted by the clerk of the court to the Administrator or
other officer designated by him for that purpose. The Administrator
thereupon shall file in the court the record of the proceedings on which
the Administrator based his determination, as provided in section 2112
of title 28 of the United States Code.
"(iii) If the petitioner applies to the court for leave to adduce addi-
tional evidence, and shows to the satisfaction of the court that such
additional evidence is material and that there were reasonable grounds
for the failure to adduce such evidence in the proceeding before the
Administrator, the court may order such additional evidence (and evi-
dence in rebuttal thereof) to be taken before the Administrator, in such
manner and upon such terms and conditions as the court may deem
proper. The Administrator may modify his findings as to the facts, or
make new findings, by reason of the additional evidence so taken and
he shall file such modified or new findings, and his recommendation,
if any, for the modification or setting aside of his original determina-
tion, with the return of such additional evidence.
"(iv) Upon the filing of the petition referred to in clause (ii), the
court shall have jurisdiction to review the order in accordance with
chapter 7 of title 5, United States Code, and to grant appropriate relief
as provided in such chapter.
"(c) For purposes of enforcement of this section, officers or employ-
ees duly designated by the Administrator, upon presenting appropriate
credentials to the manufacturer or person in charge, are authorized (1)
to enter, at reasonable times, any plant or other establishment of such
-------
December 31, 1970
- 21 -
Pub. Law 91-604
84 STAT. 1696
manufacturer, for the purpose of conducting tests of vehicles or engines
in the hands of the manufacturer, or (2) to inspect at reasonable
times, records, files, papers, processes, controls, and facilities used by
such manufacturer in conducting tests under regulations of the Ad-
ministrator. Each such inspection shall be commenced and completed
with reasonable promptness.
"(d) The Administrator shall by regulation establish methods and Regulation.
procedures for making tests under this section.
" (e) The Administrator shall announce in the Federal Register and
make available to the public the results of his tests of any motor vehicle
or motor vehicle engine submitted by a manufacturer under subsection
(a) as promptly as possible after the enactment of the Clean Air
Amendments of 1970 and at the beginning of each model year which
begins thereafter. Such results shall be described in such nontechnical
manner as will reasonably disclose to prospective ultimate purchasers
of new motor vehicles and new motor vehicle engines the comparative
performance of the vehicles and engines tested in meeting the standards
prescribed under section 202 of this Act.
Publication
Federal
Register.
in
"COMPLIANCE BY VEHICLES AND ENGINES IN ACTUAL USE
''SEC. 207. (a) Effective with respect to vehicles and engines manufac-
tured in model years beginning more than 60 days after the date of the
enactment of the Clean Air Act Amendments of 1970, the manufacturer
of each new motor vehicle and new motor vehicle engine shall warrant
to the ultimate purchaser and each subsequent purchaser that such
vehicle or engine is (1) designed, built, and equipped so as to conform
at the time of sale with applicable regulations under section 202, and
(2) free from defects in materials and workmanship which cause such
vehicle or engine to fail to conform with applicable regulations for its
useful life (as determined under section 202(d)).
"(b) If the Administrator determines that (i) there are available
testing methods and procedures to ascertain whether, when in actual
use throughout its useful life (as determined under section 202(d)),
each vehicle and engine to which regulations under section 202 apply
complies with the emission standards of such regulations, (ii) such
methods and procedures are in accordance with good engineering
practices, and (iii) such methods and procedures are reasonably cap-
able of being correlated with tests conducted under section 206 (a) (1),
then—
"(1) he shall establish such methods and procedures by regula-
tion, and
"(2) at such time as he determines that inspection facilities or
equipment are available for purposes of carrying out testing-
methods and procedures established under paragraph (1), he
shall prescribe regulations which shall require manufacturers
to warrant the emission control device or system of each new
motor vehicle or new motor vehicle engine to which a regulation
under section 202 applies and which is manufactured in a model
year beginning after the Administrator first prescribes warranty
regulations under this paragraph (2). The warranty under such
regulations shall run to the ultimate purchaser and each subse-
quent purchaser and shall provide that if—
"(•A) the vehicle or engine is maintained and operated in
accordance with instructions under subsection (c) (3),
"(B) it fails to conform at any time during its useful life
(as determined under section 202(d)) to the regulations
prescribed under section 202, and
"(C) such nonconformity results in the ultimate purchaser
(or any subsequent purchaser) of such vehicle or engine
Ante, p. 1690.
Warranty.
Ante,
1694.
-------
Pub. Law 91-604 - 22 - December 31, 1970
84 STAT. 1697
having to bear any penalty or other sanction (including the
denial of the right to use such vehicle or engine) under State
or Federal law,
then such manufacturer shall remedy such nonconformity under
such warranty with the cost thereof to be borne by the manu-
facturer.
"(c) Effective with respect to vehicles and engines manufactured
during model years beginning more than 60 days after the date of
enactment of the Clean Air Amendments of 1970—
"(1) If the Administrator determines that a substantial num-
ber of any class or category of vehicles or engines, although
properly maintained and used, do not conform to the regulations
Ante p. 1690. prescribed under section 202, when in actual use throughout their
' useful life (as determined under section 202(d)), he shall imme-
diately notify the manufacturer thereof of such nonconform-
ity, and he shall require the manufacturer to submit a plan for
remedying the nonconformity of the vehicles or engines with
respect to which such notification is given. The plan shall provide
that the nonconformity of any such vehicles or engines which are
properly used and maintained will be remedied at the expense of
the manufacturer. If the manufacturer disagrees with such
determination of nonconformity and so advises the Administrator,
the Administrator shall afford the manufacturer and other inter-
ested persons an opportunity to present their views and evidence
in support thereof at a public hearing. Unless, as a result of such
hearing the Administrator withdraws such determination of non-
conformity, lie shall, within 60 days after the completion of such
hearing, order the manufacturer to provide prompt notification
of such nonconformity in accordance with paragraph (2).
"(2) Any notification required by paragraph (1) with respect
to any class or category of vehicles or engines shall be given to
dealers, ultimate purchasers, and subsequent purchasers (if
known) in such manner and containing such information as the
Administrator may by regulations require.
''(3) The manufacturer shall furnish with each new motor
vehicle or motor vehicle engine such written instructions for the
maintenance and use of the vehicle or engine by the ultimate pur-
chaser as may be reasonable and necessary to assure the proper
functioning of emission control devices and systems. In addition,
the manufacturer shall indicate by means of a label or tag per-
manently affixed to such vehicle or engine that such vehicle or
engine is covered by a certificate of conformity issued for the
purpose of assuring achievement of emissions standards prescribed
under section 202. Such label or tag shall contain such other infor-
mation relating to control of motor vehicle emissions as the Admin-
istrator shall prescribe by regulation.
"(d) Any cost obligation of any dealer incurred as a result of any
requirement imposed by subsection (a), (b), or (c) shall be borne by
the manufacturer. The transfer of any such cost obligation from a
manufacturer to any dealer through franchise or other agreement is
prohibited.
Cost, i((e) If a manufacturer includes in any advertisement a statement
statement. respecting the cost or value of emission control devices or systems, such
manufacturer shall set forth in such statement the cost or value attrib-
uted to such devices or systems by the Secretary of Labor (through
the Bureau of Labor Statistics). The Secretary of Labor, and his repre-
sentatives, shall have the same access for this purpose to the books,
documents, papers, and records of a manufacturer as the Comptroller
General has to those of a recipient of assistance for purposes of sec-
tion 311.
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December 31, 1970 - 23 - Pub. Law 91-604
84 STAT. 1698
"(f) Any inspection of a motor vehicle or a motor vehicle engine for
purposes of subsection (c) (1), after its sale to the ultimate purchaser,
shall be made only if the owner of such vehicle or engine voluntarily
permits such inspection to be made, except as may be provided by any
State or local inspection program."
(b) The amendments made by this section shall not apply to vehicles
or engines imported into the United States bef6re the sixtieth day
after the date of enactment of this Act.
REGULATION OF FUELS
SEC. 9. (a) Section 211 of the Clean Air Act (as so redesignated by Ante, p. 1694.
section 8) is amended to read as follows:
"SEC. 211. (a) The Administrator may by regulation designate any
fuel or fuel additive and, after such date or dates as may be prescribed
by him, no manufacturer or processor of any such fuel or additive may
sell, offer for sale, or introduce into commerce such fuel or additive
unless the Administrator has registered such fuel or additive in
accordance with subsection (b) of this section.
"(b) (1) For the purpose of registration of fuels and fuel additives,
the Administrator shall require—
"(A) the manufacturer of any fuel to notify him as to the com-
mercial identifying name and manufacturer of any additive con-
tained in such fuel; the range of concentration of any additive in
the fuel; and the purpose-in-use of any such additive; and
" (B) the manufacturer of any additive to notify him as to the
chemical composition of such additive.
" (2) For the purpose of registration of fuels and fuel additives, the
Administrator may also require the manufacturer of any fuel or fuel
additive—
"(A) to conduct tests to determine potential public health
effects of such fuel or additive (including, but not limited to, car-
cinogenic, teratogenic, or mutagenic effects), and
" (B) to furnish the description of any analytical technique that
can be used to detect and measure any additive in such fuel, the
recommended range of concentration of such additive, and the rec-
ommended purpose-in-use of such additive, and such other infor-
mation as is reasonable and necessary to determine the emissions
resulting from the use of the fuel or additive contained in such
fuel, the effect of such fuel or additive on the emission control
performance of any vehicle or vehicle engine, or the extent to
which such emissions affect the public health or welfare.
Tests under subparagraph (A) shall be conducted in conformity with
test procedures and protocols established by the Administrator. The
result of such tests shall not be considered confidential.
"(3) Upon compliance with the provision of this subsection, includ-
ing assurances that the Administrator will receive changes in the infor-
mation required, the Administrator shall register such fuel or fuel
additive.
"(c) (1) The Administrator may, from time to time on the basis of
information obtained under subsection (b) of this section or other
information available to him, by regulation, control or prohibit the
manufacture, introduction into commerce, offering for sale, or sale
of any fuel or fuel additive for use in a motor vehicle or motor vehicle
engine (A) if any emission products of such fuel or fuel additive will
endanger the public health or welfare, or (B) if emission products of
-------
Pub. Law 91-604 - 24 - December 31, 1970
84 STAT. 1699
such fuel or fuel additive will impair to a significant degree the per-
formance of any emission control device or system which is in general
use, or which the Administrator finds has been developed to a point
where in a reasonable time it would be in general use were such regula-
tion to be promulgated.
"(2) (A) No fuel, class of fuels, or fuel additive may be controlled
or prohibited by the Administrator pursuant to clause (A) of para-
graph (1) except after consideration of all relevant medical and scien-
tific evidence available to him, including consideration of other
technologically or economically feasible means of achieving emission
.Ante, p. 1690. standards under section 202.
"(B) No fuel or fuel additive may be controlled or prohibited by
the Administrator pursuant to clause (B) of paragraph (1) except
after consideration of available scientific and economic data, includ-
ing a cost benefit analysis comparing emission control devices or sys-
tems which are or will be in general use and require the proposed
control or prohibition with emission control devices or systems which
are or will be in general use and do not require the proposed control
or prohibition. On request of a manufacturer of motor vehicles, motor
vehicle engines, fuels, or fuel additives submitted within 10 days of
notice of proposed rulemaking, the Administrator shall hold a public
hearing and publish findings with respect to any matter he is required
to consider under this subparagraph. Such findings shall be published
at the time of promulgation of final regulations.
"(C) No fuel or fuel additive may be prohibited by the Adminis-
trator under paragraph (1) unless he finds, and publishes such find-
ing, that in his judgment such prohibition will not cause the use of
any other fuel or fuel additive which will produce emissions which
will endanger the public health or welfare to the same or greater
degree than the use of the fuel or fuel additive proposed to be
prohibited.
"(3) (A) For the purpose of evidence and data to carry out para-
graph (2), the Administrator may require the manufacturer of any
motor vehicle or motor vehicle engine to furnish any information
which has been developed concerning the emissions from motor vehicles
resulting from the use of any fuel or fuel additive, or the effect of such
use on the performance of any emission control device or system.
"(B) In obtaining information under subparagraph (A), section
.Post, p. 1707. 307(a) (relating to subpenas) shall be applicable.
"(4) (A) Except as otherwise provided in subparagraph (B) or (C),
no State (or political subdivision thereof) may prescribe or attempt to
enforce, for purposes of motor vehicle emission control, any control or
prohibition respecting use of a fuel or fuel additive in a motor vehicle
or motor vehicle engine—
"(i) if the Administrator has found that no control or prohibi-
Pubiication in tion under paragraph (1) is necessary and has published his find-
Federal Register. ing in the Federal Register, or
"(ii) if the Administrator has prescribed under paragraph (1)
a control or prohibition applicable to such fuel or fuel additive,
unless State prohibition or control is identical to the prohibition or
control prescribed by the Administrator.
Ante, p. 1694. "(B) Any State for which application of section 209(a) has at any
time been waived under section 209 (b) may at any time prescribe and
enforce, for the purpose of motor vehicle emission control, a control or
prohibition respecting any fuel or fuel additive.
"(C) A State may prescribe and enforce, for purposes of motor
vehicle emission control, a control or prohibition respecting the use of
a fuel or fuel additive in a motor vehicle or motor vehicle engine if an
Ante» P- 1680. applicable implementation plan for such State under section 110 so
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December 31, 1970 - 25 - Pub. Law 91-604
84 STAT. 1700
provides. The Administrator may approve such provision in an imple-
mentation plan, or promulgate an implementation plan containing such
a provision, only if he finds that the State control or prohibition is
necessary to achieve the national primary or secondary ambient air
quality standard which the plan implements.
" (d) Any person who violates subsection (a) or the regulations pre- Penalty.
scribed under subsection (c) or who fails to furnish any information
required by the Administrator under subsection (c) shall forfeit and
pay to the United States a civil penalty of $10,000 for each and every
day of the continuance of such violation, which shall accrue to the
United States and be recovered in a civil suit in the name of the United
States, brought in the district where such person has his principal
office or in any district in which he does business. The Administrator
may, upon application therefor, remit or mitigate any forfeiture pro-
vided for in this subsection and he shall have authority to determine
the facts upon all such applications."
OTHER AMENDMENTS TO TITLE H
SEC. 10. (a) The first sentence of section 208 (b) of the Clean Air
Act (as so redesignated by section 8 of this Act) is amended to readAjlLli ?• 1694.
as follows: "Any records, reports or information obtained under sub-
section (a) shall be available to the public, except that upon a showing
satisfactory to the Administrator by any person that records, reports,
or information, or particular part thereof (other than emission data),
to which the Administrator has access under this section if made pub-
lic, would divulge methods or processes entitled to protection as trade
secrets of such person, the Administrator shall consider such record,
report, or information or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18 of the United
States Code, except that such record, report, or information may be62 stat. 791.
disclosed to other officers, employees, or authorized representatives of
the United States concerned with carrying out this Act or when rele-
vant in any proceeding under this Act."
(b) Section 210 of such Act (as so redesignated by section 8 of this
Act) is amended to read as follows: Ante> P- 1694-
"STATE GRANTS
"SEC. 210. The Administrator is authorized to make grants to
appropriate State agencies in an amount up to two-thirds of the cost of
developing and maintaining effective vehicle emission devices and
systems inspection and emission testing and control programs, except
- 1 01= Exceptions.
"(1) no such grant shall be made for any part of any State
vehicle inspection program which does not directly relate to the
cost of the air pollution control aspects of such a program;
" (2) no such grant shall be made unless the Secretary of Trans-
portation has certified to the Administrator that such program is
consistent with any highway safety program developed pursuant
to section 402 of title 23 of the United States Code; and 80 stat- 731-
"(3) no such grant shall be made unless the program includes
provisions designed to insure that emission control devices and
systems on vehicles in actual use have not been discontinued or
rendered inoperative."
(c) Title II of the Clean Air Act is amended by inserting after sec-
tion 211 (as so redesignated by section 8) the following new section: Ante, p. 1694.
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Pub. Law 91-604 - 26 -
84 STAT. 1701
December 31, 1970
Definitions.
Ante, p. 1690.
Low-Emission
Vehicle Certi-
fication Board.
Membership.
Compensation!
Travel expenses
93 Stat. 190.
additional
personnel.
Ante, p. 198-1.
Motor vehicle
certification.
''DEVELOPMENT OF LOW-EMISSION VEHICLES
"SEC. 212. (a) For the purpose of this section—
"(1) The term 'Board' means the Low-Emission Vehicle Cer-
tification Board.
"(2) The term 'Federal Government' includes the legislative,
executive, and judicial branches of the Government of the United
States, and the government of the District of Columbia.
"(3) The term 'motor vehicle' means any self-propelled vehicle
designed for use in the United States on the highways, other
than a vehicle designed or used for military field training, com-
bat, or tactical purposes.
"(4) The term 'low-emission vehicle' means any motor vehicle
which—
" (A) emits any air pollutant in amounts significantly below
new motor vehicle standards applicable under section 202 at
the time of procurement to that type of vehicle; and
"(B) with respect to all other air pollutants meets the new-
motor vehicle standards applicable under section 202 at the
time of procurement to that type of vehicle.
"(5) The term 'retail price' means (A) the maximum statutory
price applicable to any class or model of motor vehicle; or (B) in
any case where there is no applicable maximum statutory price, the
most recent procurement price paid for any class or model of
motor vehicle.
"(b) (1) There is established a Low-Emission Vehicle Certification
Board to be composed of the Administrator or his designee, the Secre-
tary of Transportation or his designee, the Chairman of the Council on
Environmental Quality or his designee, the Director of the National
Highway Safety Bureau in the Department of Transportation, the
Administrator of General Services, and two members appointed by the
President. The President shall designate one member of the Board as
Chairman.
"(2) Any member of the Board not employed by the United States
may receive compensation at the rate of $125 for each day such member
. is engaged upon work of the Board. Each member of the Board shall
be reimbursed for travel expenses, including per diem in lieu of sub-
sistence as authorized by section 5703 of title 5, United States Code, for
persons in the Government service employed intermittently.
"(3) (A) The Chairman, with the concurrence of the members of
the Board, may employ and fix the compensation of such additional
personnel as may be necessary to carry out the functions of the Board,
but no individual so appointed shall receive compensation in excess of
the rate authorized for GS-18 by section 5332 of title 5, United States
Code.
"(B) The Chairman may fix the time and place of such meetings as
may be required, but a meeting of the Board shall be called whenever
a majority of its members so request.
"(C) The Board is granted all other powers necessary for meeting
its responsibilities under this section.
"(c) The Administrator shall determine which models or classes of
motor vehicles qualify as low-emission vehicles in accordance with the
provisions of this section.
"(d)(l) The Board shall certify any class or model of motor
vehicles—
"(A) for which a certification application has been filed in
accordance with paragraph (3) of this subsection;
"(B) which is a Tow-emission vehicle as determined by the
Administrator; and
-------
December 31, 1970 - 27 - Pub. Law 91-604
"(C) which it determines is suitable for use as a substitute for
a class or model of vehicles at that time in use by agencies of the
Federal Government.
The Board shall specify with particularity the class or model of Substitute
vehicles for which the class or model of vehicles described in the specifications.
application is a suitable substitute. In making the determination under
this subsection the Board shall consider the following criteria: Criteria.
"(i) the safety of the vehicle;
"(ii) its performance characteristics;
"(iii) its reliability potential;
"(iv) its serviceability;
"(v) its fuel availability;
"(vi) its noise level; and
" (vii) its maintenance costs as compared with the class or model
of motor vehicle for which it may be a suitable substitute.
"(2) Certification under this section shall be effective for a period Fffective date,
of one year from the date of issuance. period.
•'(3) (A) Any party seeking to have a class or model of vehicle Application.
certified under this section shall file a certification application in
accordance with regulations prescribed by the Board.
;'(B) The Board shall publish a notice of each application received Publication in
in the Federal Register. Federal Register.
"(C) The Administrator and the Board shall make determinations
for the purpose of this section in accordance with procedures prescribed
by regulation by the Administrator and the Board, respectively.
"(D) The Administrator and the Board shall conduct whatever investigation
investigation is necessary, including actual inspection of the vehicle and inspection.
at a place designated in regulations prescribed under subparagraph
(A).
"(E) The Board shall receive and evaluate written comments and Comments, evai-
documents from interested parties in support of, or in opposition to, uation.
certification of the class or model of vehicle under consideration.
"(F) Within 90 days after the receipt of a properly filed certifica-
tion application, the Administrator shall determine whether such
class or model of vehicle is a low-emission vehicle, and within 180 days
of such determination, the Board shall reach a decision by majority
vote as to whether such class or model of vehicle, having been deter-
mined to be a low-emission vehicle, is a suitable substitute for any class
or classes of vehicles presently being purchased by the Federal Govern-
ment for use by its agencies.
"(G) Immediately upon making any determination or decision
under subparagraph (F), the Administrator and the Board shall each Publication in
publish in the Federal Register notice of such determination or deci-Federai Register.
sion, including reasons therefor and in the case of the Board any dis-
senting views.
"(e)(l) Certified low-emission vehicles shall be acquired by pur- Acquisition by
chase or lease by the Federal Government for use by the Federal Federal govem-
Government in lieu of other vehicles if the Administrator of General ment.
Services determines that such certified vehicles have procurement costs
which are no more than 150 per centum of the retail price of the least
expensive class or model of motor vehicle for which they are certified
substitutes.
" (2) In order to encourage development of inherently lo-sy-polluting Premium
propulsion technology, the Board may, at its discretion, raise the pre- raise-
mium set forth in paragraph (1) of this subsection to 200 per centum
of the retail price of any class or model of motor vehicle for which a
certified low-emission vehicle is a certified substitute, if the Board
determines that the certified low-emission vehicle is powered by an
inherently low-polluting propulsion system.
-------
84 STAT.1703
Pub. Law 91-604
- 28 -
December 31, 1970
" (3) Data relied upon by the Board and the Administrator in deter-
mining that a vehicle is a certified low-emission vehicle shall be incor-
porated in any contract for the procurement of such vehicle.
"(f) The procuring agency shall be required to purchase available
certified low-emission vehicles which are eligible for purchase to the
extent they are available before purchasing any other vehicles for
which any low-emission vehicle is a certified substitute. In making pur-
chasing selections between competing eligible certified low-emission
vehicles, the procuring agency shall give priority to (1) any class or
model which does not require extensive periodic maintenance to retain
its low-polluting qualities or which does not require the use of fuels
which are more expensive than those of the classes or models of vehicles
for which it is a certified substitute; and (2) passenger vehicles other
than buses.
''(g) For the purpose of procuring certified low-emission vehicles
any statutory price limitations shall be waived.
" (h) The Administrator shall, from time to time as the Board deems
appropriate, test the emissions from certified low-emission vehicles pur-
chased by the Federal Government. If at any time he finds that the
emission rates exceed the rates on which certification under this section
was based, the Administrator shall notify the Board. Thereupon the
Board shall give the supplier of such vehicles written notice of this
finding, issue public notice of it, and give the supplier an opportunity
to make necessary repairs, adjustments, or replacements. If no such
repairs, adjustments, or replacements are made within a period to be
set by the Board, the Board may order the supplier to show cause why
the vehicle involved should be eligible for recertification.
Appropriations. ''(i) There are authorized to be appropriated for paying additiona-
amounts for motor vehicles pursuant to, and for carrying out the pro-
visions of, this section, $5,000,000 for the fiscal year ending June 30,
1971, and $25,000,000 for each of the two succeeding fiscal years.
il(j) The Board shall promulgate the procedures required to imple-
ment this section within one hundred and eighty days after the date
of enactment of the Clean Air Amendments of 1970."
(d)(l) Paragraph (1) of section 213 of the Clean Air Act (as
Ante, p. 1694. so redesignated by section 8) is amended by inserting "202," imme-
diately before "203,".
(2) Paragraph (3) of such section 213 is amended by striking out
"The" and inserting in lieu thereof "Except with respect to vehicles
or engines imported or offered for importation, the" ; and by adding
before the period at the end thereof " ; and with respect to imported
vehicles or engines, such terms mean a motor vehicle and engine,
respectively, manufactured after the effective date of a regulation
issued under section 202 which is applicable to such vehicle or engine
(or which would be applicable to such vehicle or engine had it been
manufactured for importation into the United States)".
Ante, p. 1690.
EMISSION STANDARDS FOR AIRCRAFT
81 stat. 499.
42 use I857f-i.
Study.
SEC. 11. (a) (1) Title II of the Clean Air Act is amended by adding
t the end thereof the following new part:
"PART B — AIRCRAFT EMISSION STANDARDS
ESTABLISHMENT OF STANDARDS
"SEC. 231. (a) (1) Within 90 days after the date of enactment of the
Clean Air Amendments of 1970, the Administrator shall commence
a study and investigation of emissions of air pollutants from aircraft
in order to determine—
-------
December 31, 1970 - 29 - Pub. Law 91-604
"(A.) the extent to which such emissions affect air quality in
air quality control regions throughout the United States, and
" (B) the technological feasibility of controlling such emissions.
" (2) Within 180 days after commencing such study and investiga-
tion, the Administrator shall publish a report of such study and inves- Report, pubii-
tigation and shall issue proposed emission standards applicable to cation.
emissions of any air pollutant from any class or classes of aircraft or
aircraft engines which in his judgment cause or contribute to or are
likely to cause or contribute to air pollution which endangers the public
health or welfare.
"(3) The Administrator shall hold public hearings with respect to Hearings.
such proposed standards. Such hearings shall, to the extent practicable,
be held in air quality control regions which are most seriously affected
by aircraft emissions. Within 90 days after the issuance of such pro- Regulations.
posed regulations, he shall issue such regulations with such modifica-
tions as he deems appropriate. Such regulations may be revised from
time to time.
"(b) Any regulation prescribed under this section (and any revision Effective date.
thereof) shall take effect after such period as the Administrator finds
necessary (after consultation with the Secretary of Transportation)
to permit the development and application of the requisite technology,
giving appropriate consideration to the cost of compliance within such
period.
" (c) Any regulations under this section, or amendments thereto, with
respect to aircraft, shall be prescribed only after consultation with the
Secretary of Transportation in order to assure appropriate considera-
tion for aircraft safety.
"ENFORCEMENT or STANDARDS
"SEC. 232. (a) The Secretary of Transportation, after consultation Regulations.
with the Administrator, shall prescribe regulations to insure compli-
ance with all standards prescribed under section 231 by the Adminis-
trator. The regulations of the Secretary of Transportation shall include
provisions making such standards applicable in the issuance, amend-
ment, modification, suspension, or revocation of any certificate author-
ized by the Federal Aviation Act or the Department of Transportation 72 stat. 731.
Act. Such Secretary shall insure that all necessary inspections are 49 usc 130:L
accomplished, and, may execute any power or duty vested in him by g
' *
any other provision of law in the execution of all powers and duties 4g us^ '651
vested in him under this section. note.
"(b) In any action to amend, modify, suspend, or revoke a certificate certificate
in which violation of an emission standard prescribed under section holder, notice
231 or of a regulation prescribed under subsection (a) is at issue, the and appeal
certificate holder shall have the same notice and appeal rights as are1"1^*3-
prescribed for such holders in the Federal Aviation Act of 1958 or
the Department of Transportation Act, except that in any appeal to Exception.
the National Transportation Safety Board, the Board may amend,
modify, or revoke the order of the Secretary of Transportation only
if it finds no violation of such standard or regulation and that such
amendment, modification, or revocation is consistent with safety in
air transportation.
"SEC. 233. No State or political subdivision thereof may adopt or
attempt to enforce any standard respecting emissions of any air
pollutant from any aircraft or engine thereof unless such standard is
identical to a standard applicable to such aircraft under this part.
-------
84 STAT. 1705
Pub. Law 91-604
- 30 -
December 31, 1970
72 Stat. 737.
49 USC 1301.
Ante, p. 1690.
Ante, p. 1694.
81 Stat. 499.
42 USC 1857f-l.
72 Stat, 775.
Ante, p. 1703.
72 Stat. 733.
•'DEFINITIONS
"SEC. 234. Terms used in this part (other than Administrator) shall
have the same meaning as such terms have under section 101 of the
Federal Aviation Act of 1958."
(2) Title II of the Clean Air Act is amended—
(A) by striking out "this title" wherever it appears in sections
202 through 213 and inserting in lieu thereof "this part";
(B) by striking out "TITLE II" in the heading for section 213
(as so redesignated by section 8 of this Act) and inserting in lieu
thereof "PART A";
(C) by amending the heading for title II to read as follows:
"TITLE II—EMISSION STANDARDS FOR MOVING
SOURCES"; and
(D) by inserting after section 201 the following:
"PART A—MOTOR VEHICLE EMISSION AND FUEL STANDARDS".
(b) (1) Section 601 of the Federal Aviation Act of 1958 (49 U.S.C.
1421) is amended by adding at the end thereof the following new
subsection:
"AVIATION FUEL STANDARDS
"(d) The Administrator shall prescribe, and from time to time
revise, regulations (1) establishing standards governing the composi-
tion or the chemical or physical properties of any aircraft fuel or fuel
additive for the purpose of controlling or eliminating aircraft emis-
sions which the Administrator of the Environmental Protection
Agency (pursuant to section 231 of the Clean Air Act) determines
endanger the public health or welfare, and (2) providing for the imple-
mentation and enforcement of such standards."
(2) Section 610(a) of such Act (49 U.S.C. 1430(a)) is amended by
striking out "and"' at the end of paragraph (7) ; by striking out the
period at the end of paragraph (8) and inserting in lieu thereof ";
and" and by adding after paragraph (8) the following new paragraph:
"(9) For any person to manufacture, deliver, sell, or offer for
sale, any aviation fuel or fuel additive in violation of any regula-
tion prescribed under section 601 (d)."
(3) That portion of the table of contents contained in the first sec-
tion of the Federal Aviation Act of 1958 which appears under the
side heading
"Sec. 601. General Safety Powers and Duties."
is amended by adding at the end thereof the following:
"(d) Aviation fuel standards.".
GENERAL PROVISIONS
81 Stat. 505.
42 USC 18571-
18571.
SEC. 12. (a) The Clean Air Act is amended by redesignating sections
303 through 310 as sections 310 through 317, and by inserting after
section 302 the following new sections:
"EMERGENCY POWERS
"SEC. 303. Notwithstanding any other provision of this Act, the
Administrator, upon receipt of evidence that a pollution source or com-
bination of sources (including moving sources) is presenting an immi-
nent and substantial endangerment to the health of persons, and that.
appropriate State or local authorities have not acted to abate such
sources, may bring suit on behalf of the United States in the appro-
priate United States district court to immediately restrain any person
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December 31, 1970
- 31 -
Pub. Law 91-604
84 STAT. 1706
causing or contributing to the alleged pollution to stop the emission
of air pollutants causing or contributing to such pollution or to take
such other action as may be necessary.
"CITIZEN SUITS
"SEC. 304-. (a) Except as provided in subsection (b), any person may
commence a civil action on his own behalf—
"(1) against any person (including (i) the United States, and
(ii) any other governmental instrumentality or agency to the
extent permitted by the Eleventh Amendment to the Constitution)
who is alleged to be in violation of (A) an emission standard or
limitation under this Act or (B) an order issued by the Adminis-
trator or a State with respect to such a standard or limitation, or
"(2) against, the Administrator where there is alleged a failure
of the Administrator to perform any act or duty under this Act
which is not discretionary with the Administrator.
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce such
an emission standard or limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case may be.
"(b) No action may be commenced—
"(1) under subsection (a)(l) —
" (A) prior to 60 days after the plaintiff has given notice of
the violation (i) to the Administrator, (ii) to the State in
which the violation occurs, and (iii) to any alleged violator
of the standard, limitation, or order, or
"(B) if the Administrator or State has commenced and is
diligently prosecuting a civil action in a -court of the United
States or a State to require compliance with the standard, lim-
itation, or order, but in any such action in a court of the
United States any person may intervene as a matter of right.
"(2) under subsection (a) (2) prior to 60 days after the plaintiff
has given notice of such action to the Administrator,
except that such action may be brought immediately after such noti-
fication in the case of an action under this section respecting a dela-
tion of section 112(c) (1) (B)^or an order issued by the Administrator
pursuant to section 113(a). Notice under this subsection shall be given
in such manner as the Administrator shall prescribe by regulation.
"'(c)(l) Any action respecting a violation by a stationary source
of an emission standard or limitation or an order respecting such
standard or limitation may be brought only in the judicial district in
which such source is located.
"(2) In such action under this section, the Administrator, if not a
party, may intervene as a matter of right.
"(d) The court, in issuing any final order in any action brought
pursuant to subsection (a) of this section, may award costs of litiga-
tion (including reasonable attorney and expert witness fees) to any
party, whenever the court determines such award is appropriate. The
court may, if a. temporary restraining order or preliminary injunction
is sought, require the filing of a bond or equivalent security in accord-
ance with the Federal Rules of Civil Procedure.
" (e) Nothing in this section shall restrict any right which any person
(or class of persons) may have under any statute or common law to seek
enforcement of any emission standard or limitation or to seek any other
relief (including relief against the Administrator or a State agency).
"(f) For purposes of this section, the term 'emission standard or
limitation under this Act' means—
"(1) a schedule or timetable of compliance, emission limita-
tion, standard of performance or emission standard, or
Ante,
Ante,
1685.
1686.
28 USC app.
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84 5TAT. 1707
Pub. Law 91-604
- 32 -
December 31, 1970
"(2) a control or prohibition respecting a motor vehicle fuel or
fuel additive,
which is in effect under this Act (including a requirement applicable
Ante, p. 1689. by reason of section 118) or under an applicable implementation plan.
''APPEARANCE
''SEC. 305. The Administrator shall request the Attorney General to
appear and represent him in any civil action instituted under this Act
to which the Administrator is a party. Unless the Attorney General
notifies the Administrator that he will appear in such action within a
reasonable time, attorneys appointed by the Administrator shall appear
and represent him.
"FEDERAL PROCUREMENT
"SEC. 306. (a) No Federal agency may enter into any contract with
Ante, p. 1687. any person who is convicted of any offense under section 113(c) (1) for
the procurement of goods, materials, and services to perform such
contract at any facility at which the violation which gave rise to such
conviction occurred if such facility is owned, leased, or supervised by
such person. The prohibition in the preceding sentence shall continue
until the Administrator certifies that the condition giving rise to such
a conviction has been corrected.
''(b) The Administrator shall establish procedures to provide all
Federal agencies with the notification necessary for the purposes of
subsection (a).
"(c) In order to implement the purposes and policy of this Act to
protect and enhance the quality of the Nation's air, the President shall,
not more than 180 days after enactment of the Clean Air Amendments
Federal agency of 1970 cause to be issued an order (1) requiring each Federal agency
contracts. authorized to enter into contracts and each Federal agency which is
empowered to extend Federal assistance by way of grant, loan, or con-
tract to effectuate the purpose and policy of this Act in such contract-
Presidential ing or assistance activities, and (2) setting forth procedures, sanctions,
procedures, penalties, and such other provisions, as the President determines neces-
e^°- sary to carry out such requirement.
Exemptions, ''(d) The President may exempt any contract, loan, or grant from
notification all or part of the provisions of this section where he determines such
to Congress. exemption is necessary in the paramount interest of the United States
and he shall notify the Congress of such exemption.
Report to ''(e) The President shall annually report to the Congress on meas-
Congress. ures taken toward implementing the purpose and intent of this section,
including but not limited to the progress and problems associated with
implementation of this section.
''GENERAL PROVISION RELATING TO ADMINISTRATIVE PROCEEDINGS AND
JUDICIAL REVIEW
"SEC. 307. (a) (1) In connection with any determination under sec-
PP. 1682, tion 110(f) or section 202(b) (5), or for purposes of obtaining infor-
mation under section 202(b) (4) or 210(c) (4), the Administrator may
issue subpenas for the attendance and testimony of witnesses and the
production of relevant papers, books, and documents, and he may
administer oaths. Except for emission data, upon a showing satisfac-
tory to the Administrator by such owner or operator that such papers,
books, documents, or information or particular part thereof, if made
public, would divulge trade secrets or secret processes of such owner
or operator, the Administrator shall consider such record, report, or
information or particular portion thereof confidential in accordance
62 stat. 791. with the purposes of section 1905 of title 18 of the United States Code,
Ante.
1691.
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December 31, 1970
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Pub. Law 91-604
84 5TAT. 1708
except that such paper, book, document, or information may be dis-
closed to other officers, employees, or authorized representatives of the
United States concerned with carrying out this Act, to persons carry-
ing out the National Academy of Sciences' study and investigation
provided for in section 202(c), or when relevant in any proceeding Ante, p, 1690.
under this Act. Witnesses summoned shall be paid the same fees and
mileage that are paid witnesses in the courts of the United States. In
case of contumacy or refusal to obey a subpena served upon any person
under this subparagraph, the district court of the United States for
any district in which such person is found or resides or transacts busi-
ness, upon application by the United 'States and after notice to such
person, shall have jurisdiction to issue an order requiring such person
to appear and give testimony before the Administrator to appear and
produce papers, books, and documents before the Administrator, or
both, and any failure to obey such order of the court may be punished
by such court as a contempt thereof.
"(b)(l) A petition for review of action of the Administrator in Petition
promulgating any national primary or secondary ambient air quality f Or review.
standard, any emission standard under section 112, any standard of Ante, p. 1685.
performance under section 111, any standard under section 202 (other
than a standard required to be prescribed under section 202(b) (1)),
any determination under section 202(b) (5), any control or prohibition
under section 211, or any standard under section 231 may be filed only Ante, pp. 1698,
in the United States Court of Appeals for the District of Columbia. A 1703.
petition for review of the Administrator's action in approving or pro-
mulgating any implementation plan under section 110 or section Ante, p. 1680.
Ill (d) may be filed only in the United States Court of Appeals for the
appropriate circuit. Any such petition shall be filed within 30 days Filing.
from the date of such promulgation or approval, or after such date
if such petition is based solely on grounds arising after such 30th day.
"(2) Action of the Administrator with respect to which review-
could have been obtained under paragraph (1) shall not be subject to
judicial review in civil or criminal proceedings for enforcement.
" (c) In any judicial proceeding in which review is sought of a deter- Additional
mination under this Act required to be made on the record after notice evidenoe.
and opportunity for hearing, if any party applies to the court for leave
to adduce additional evidence, and shows to the satisfaction of the court
that such additional evidence is material and that there were reasonable
grounds for the failure to adduce such evidence in the proceeding
before the Administrator, the court may order such additional evidence
(and evidence in rebuttal thereof) to be taken before the Adminis-
trator, in such manner and upon such terms and conditions as to the
court may deem proper. The Administrator may modify his findings
as to the facts, or make new findings, by reason of the additional evi-
dence so taken and he shall file such modified or new findings, and his
recommendation, if any, for the modification or setting aside of his
original determination, with the return of such additional evidence.
"MANDATORY LICENSING
"SEC. 308. Whenever the Attorney General determines, upon appli-
cation of the-Administrator—
"(l)thaf^-
"(A) in the implementation of the requirements of section
111, 112, or 202 of this Act, a right under any United States
letters patent, which is being used or intended for public or
commercial use and not otherwise reasonably available, is
necessary to enable any person required to comply with such
limitation to so comply, and
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84 STAT. 1709
Pub. Law 91-604
- 34 -
December 31, 1970
Patent
lioensing.
83 Stat. 853,
42 USC 4332.
81 Stat. 488;
83 Stat. 283.
Ante, p. 1676;
81 Stat. 487.
Ante, pp 1701,
1710.
42 USC 1857b,
1857b-l,
1857f-7.
"(B) there are no reasonable alternative methods to accom-
plish such purpose, and
"(2) that the unavailability of such right may result in a sub-
stantial lessening of competition or tendency to create a monopoly
in any line of commerce in any section of the country,
the Attorney General may so certify to a district court of the United
States, which may issue an order requiring the person who owns such
patent to license it on such reasonable terms and conditions as the court,
after hearing, may determine. Such certification may be made to the
district court for the district in which the person owning the patent
resides, does business, or is found.
tc
POLICY REVIEW
"SEC. 309. (a) The Administrator shall review and comment in
writing on the environmental impact of any matter relating to duties
and responsibilities granted pursuant to this Act or other provisions
of the authority of the Administrator, contained in any (1) legislation
proposed'by any Federal department or agency, (2) newly authorized
Federal projects for construction and any major Federal agency
action (other than a project for construction) to which section 102(2)
(C) of Public Law 91-190 applies, and (3) proposed regulations pub-
lished by any department or agency of the Federal Government. Such
written comment shall be made public at the conclusion of any such
review.
"(b) In the event the Administrator determines that any such legis-
lation, action, or regulation is unsatisfactory from the standpoint of
public health or welfare or environmental quality, he shall publish his
determination and the matter shall be referred to the Council on
Environmental Quality."
APPROPRIATIONS
SEC. 13. (a) Section 104(c) of the Clean Air Act is amended to read
as follows:
"(c) For the purposes of this section there are authorized to be
appropriated $75,000,000 for the fiscal year ending June 30, 1971,
$125,000,000 for the fiscal year ending June 30,1972, and $150,000,000
for the fiscal year ending June 30, 1973. Amounts appropriated pur-
suant to this subsection shall remain available until expended."
(b) Section 316 of the Clean Air Act (as redesignated by section 12
of this Act) is amended to read as follows:
"APPROPRIATIONS
"SEC. 316. There are authorized to be appropriated to carry out
this Act, other than sections 103 (f)(3) and (d), 104, 212, and 403,
$125,000,000 for the fiscal year ending June 30,1971, $225,000,000 for
the fiscal year ending June 30,1972, and $300,000,000 for the fiscal vear
ending June 30,1973." J
SEC. 14. The Clean Air Act is amended by adding at the end thereof
a new title to read as follows:
"TITLE IV—NOISE POLLUTION
"SEC. 401. This title may be cited as the 'Noise Pollution and Abate-
ment Act of 1970'.
"SEC. 402. (a) The Administrator shall establish within the Environ-
mental Protection Agency an Office of Noise Abatement and Control,
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December 31, 1970
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Pub. Law 91-604
84 STAT. 1710
and shall carry out through such Office a full and complete investiga-
tion and study of noise and its effect on the public health and welfare
in order to (1) identify and classify causes and sources of noise, and
(2) determine—
"(A) effects at various levels;
"(B) projected growth of noise levels in urban areas through
the year 2000;
"(C) the psychological and physiological effect on humans;
"(D) effects of sporadic extreme noise (such as jet noise near
airports) as compared with constant noise;
"(E) effect on wildlife and property (including values) ;
" (F) effect of sonic booms on property (including values) ; and
"(G) such other matters as may be of interest in the public
welfare.
" (b) In conducting such investigation, the Administrator shall hold
public hearings, conduct research, experiments, demonstrations, and
studies. The Administrator shall report the results of such investiga-
tion and study, together with his recommendations for legislation or
other action, to the President and the Congress not later than one
year after the date of enactment of this title.
"(c) In any case where any Federal department or agency is carry-
ing out or sponsoring any activity resulting in noise which the Admin-
istrator determines amounts to a public nuisance or is otherwise
objectionable, such department or agency shall consult with the
Administrator to determine possible means of abating such noise.
"SEC. 403. There is authorized to be appropriated such amount, not Appropriation.
to exceed $30,000,000, as may be necessary for the purposes of this title."
TECHNICAL AND CONFORMING AMENDMENTS
81 Stat, 504.
42 USC 1857h.
SEC. 15. (a) (1) Section 302 of the Clean Air Act is amended by strik-
ing out subsection (g) and inserting in lieu thereof the following:
" (g) The term 'air.pollutant' means an air pollution agent or combi-
nation of such agents.
" (h) All language referring to effects on welfare includes, but is not
limited to, effects on soils, water, crops, vegetation, manmade materials,
animals, wildlife, weather, visibility, and climate, damage to and
deterioration of property, and hazards to transportation, as well as
effects on economic values and on personal comfort and well-being."
(2) Section 103 (c) of the Clean Air Act is amended by striking out 42 use I857b.
"air pollution agents (or combinations of agents)" and inserting in lieu
thereof "air pollutants".
(b) (1) Subject to such requirements as the Civil Service Commis-
sion may prescribe, any commissioned officer of the Public Health
Service (other than an officer who retires under section 211 of the
Public Health Service Act after his election but prior to his transfer 74 stat. 33.
pursuant to this paragraph and paragraph (2)) who, upon the clay 42 use 212.
before the effective date of ^Reorganization Plan Numbered 3 of 1970 35 F.R. 15623.
(hereinafter in this subsection referred to as the "plan"), is serving
as such officer (A) primarily in the performance of functions trans-
ferred by such plan to the Environmental Protection Agency or its
Administrator (hereinafter in this subsection referred to as the
"Agency" and the "Administrator", respectively), may, if such officer
so elects, acquire competitive status and be transferred to a competitive
position in the Agency; or (B) primarily in the performance of
functions determined by the Secretary of Health, Education, and
Welfare (hereinafter in this subsection referred to as the "Secretary")
to be materially related to the functions so transferred, may, if auth-
orized by agreement between the Secretary and the Administrator,
and if such officer so elects, acquire such status and be so transferred.
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Pub. Law 91-604 - 36 - December 31, 1970
84 STAT. 1711
(2) An election pursuant to paragraph (1) shall be effective only if
made in accordance with such procedures as may be prescribed by the
Civil Service Commission (A) before the close of the 24th month after
the effective date of the plan, or (B) in the case of a commissioned officer
who would be liable for training and service under the Military Selec-
81 stat loo tive Service Act of 1967 but for the operation of section6(b) (3) thereof
so use app. ' (50 U.S.C. App. 456(b) (3)), before (if it occurs later than the close
451. of such 24th month) the close of the 90th day after the day upon which
69 stat. 224. he has completed his 24th month of service as such officer.
(3) (A) Except as provided in subparagraph (B), any commissioned
officer of the Public Health Service who, pursuant to paragraphs (1)
and (2), elects to transfer to a position in the Agency which is subject
to chapter 51 and subchapter III of chapter 5'3 of title 5, United States
80 stat. 443. Code (hereinafter in this subsection referred to as the "transferring
5 use 5101, officer"), shall receive a pay rate of the General Schedule grade of such
5331. position which is not less than the sum of the following amounts corn-
Ante., p.198-1. puted as of the day preceding the date of such election:
(i) the basic pay. the special pay, the continuation pay, and
the subsistence and quarters allowances, to which he is annually
entitled as a commissioned officer of the Public Health Service
76 stat. 451. pursuant to title 37, United States Code;
37 use 101. (ii) the amount of Federal income tax, as determined by esti-
mate of the Secretary, which the transferring officer, had he
remained a commissioned officer, would have been required to
pay on his subsistence and quarters allowances for the taxable
year then current if they had not'been tax free;
(iii) an amount equal to the biweekly average cost of the cover-
ages designated "high option, self and family" under the Gov-
ernment-wide Federal employee health benefits program plans.
multiplied by twenty-six; and
(iv) an amount equal to 7 per centum of the sum of the amounts
determined under clauses (i) through (iii), inclusive.
(B) A transferring officer shall in no event receive, pursuant to sub-
paragraph (A), a pay rate in excess of the maximum rate applicable
under the General Schedule to the class of position, as established
under chapter 51 of title 5, United States Code, to which such officer
is transferred pursuant to paragraphs (1) and (2).
(4) (A) A transferring officer shall be credited, on the day of his
transfer pursuant to his election under paragraphs (1) and (2), with
one hour of sick leave for each week of active service, as defined by
74 stat. 34. section 211 (d) of the Public Health Service Act.
42 use 212. (B) The annual leave to the credit of a transferring officer on the
day before the day of his transfer, shall, on such day of transfer, be
transferred to his credit in the Agency on an adjusted basis under
regulations prescribed by the Civil Service Commission. The portion
of such leave, if any, that is in excess of the sum of (i) 240 'hours, and
(ii) the number of hours that have accrued to the credit of the trans-
ferring officer during the calendar year then current and which remain
unused, shall thereafter remain to his credit until used, and shall be
reduced in the manner described by subsection (c) of section 6304 of
so stat. 519. title 5, United States Code.
(5) A transferring officer who is required to change his official sta-
tion as a result of his transfer under this subsection shall be paid such
travel, transportation, and related expenses and allowances, as would
be provided pursuant to subchapter II of chapter 57 of title 5, United
so stat. 5oo. States Code, in the case of a civilian employee so transferred in the
5 use 5721. interest of the Government. Such officer shall not (either at the time
of such transfer or upon a subsequent separation from the competitive
service) be deemed to have separated from, or changed permanent
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December 31, 1970
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Pub. Law 91-604
84 STAT. 1712
station within, a uniformed service for purposes of section 404 of title
37, United States Code.
(6) Each transferring officer who prior to January 1, 1958, was
insured pursuant to the Federal Employees' Group Life Insurance Act
of 1954, and who subsequently waived such insurance, shall be entitled
to become insured under chapter 87 of title 5, United States Code, upon
his transfer to the Agency regardless of age and insurability.
(7) (A) Effective as of the date a transferring officer acquires com-
petitive status as an employee of the Agency, there shall be considered
as the civilian service of such officer for all purposes of chapter 83, title
5, United States Code, (i) his active service as defined by section 211 (d)
of the Public Health Service Act, or (ii) any period for which he
would have been entitled, upon his retirement as a commissioned officer
of the Public Health Service, to receive retired pay pursuant to section
211(a)(4)(B) of such Act; however, no transferring officer may
become entitled to benefits under both subchapter_III of such chapter
and title II of the Social Security Act based on service as such a com-
missioned officer performed after 1956, but the individual (or his sur-
vivors) may irrevocably elect to waive benefit credit for the service
under one such law to secure credit under the other.
(B) A transferring officer on whose behalf a deposit is required to
be made by subparagraph (C) and who, after transfer to a competitive
position in the Agency under paragraphs (1) and (2), is separated
from Federal service or transfers to a position not covered by sub-
chapter III of chapter 83 of title 5, United States Code, shall not be
entitled, nor shall his survivors be entitled, to a refund of any amount
deposited on his behalf in accordance with this section. In the event
he transfers, after transfer under paragraphs (1) and (2), to a position
covered by another Government staff requirement system under which
credit is allowable for service with respect to which a deposit is
required under subparagraph (C), no credit shall be allowed under
such subchapter III with respect to such service.
(C) The Secretary shall deposit in the Treasury of the United States
to the credit of the Civil Service Eetirement and Disability Fund, on
behalf of and to the credit of such transferring officer, an amount equal
to that which such individual would be required to deposit in such
fund to cover the years of service credited to him for purposes of his
retirement under subparagraph (A), had such service been service
as an employee as defined in section 8331(1) of title 5, United States
Code. The amount so required to be deposited with respect to any trans-
ferring officer shall be computed on the basis of the sum of each of
the amounts described in paragraph (3) (A) which were received by,
or accrued to the benefit of, such officer during the years so credited.
The deposits which the Secretary is required to make under this sub-
paragraph with respect to any transferring officer shall be made within
two years after the date of his transfer as provided in paragraphs (1)
and (2), and the amounts due under this subparagraph shall include
interest computed from the period of service credited to the date of
payment in accordance with section 8334(e) of title 5, United States
Code.
(8) (A) A commissioned officer of the Public Health Service who,
upon the day before the effective date of the plan, is on active service
therewith primarily assigned to the performance of functions
described in paragraph (1) (A), shall, while he remains in active serv-
ice, as defined by section 211 (d) of the Public Health Service Act, be
assigned to the performance of duties with the Agency, except as the
Secretary and the Administrator may jointly otherwise provide.
(B) Paragraph (2) of section 6 (a) of the Military Selective Service
Act of 1967 (50 U.S.C. App. 456 (a) (2)} is amended by inserting "the
Environmental Protection Agency," after "Department of Justice,".
76 Stat. 472;
83 Stat. 840.
68 Stat, 736.
80 Stat. 592.
5 USC 8701.
80 Stat. 557.
5 USC 8301.
74 Stat, 34.
42 USC 212.
53 Stat, 1362;
81 Stat, 833.
42 USC 401.
80 Stat, 564.
5 USC 8331.
81 Stat, 101,
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Pub. Law 91-604
- 38 -
84 STAT. 1713
December 31, 1970
81 stat. 504. (c) (1) Section 302 (a) of the Clean Air Act is amended to read as
42 USC 1857h. follows:
"Administrator." "(a) The term 'Administrator' means the Administrator of the
Environmental Protection Agency."
42 use 1857 (2) The Clean Air Act is amended by striking out "Secretary"
note. wherever it appears (except in reference to the Secretary of a depart-
ment other than the Department of Health, Education, and Welfare)
and inserting in lieu thereof "Administrator"; by striking out "Secre-
tary of Health, Education, and Welfare" wherever it appears, and
inserting in lieu thereof "Administrator"; and by striking out
"Department of Health, Education, and Welfare" wherever it appears,
and inserting in lieu thereof "Environmental Protection Agency".
SAVINGS PROVISIONS
SEC. 16. (a) (1) Any implementation plan adopted by any State and
submitted to the Secretary of Health, Education, and Welfare, or to
the Administrator pursuant to the Clean Air Act prior to enactment
Ante, p. 1680. of this Act may be approved under section 110 of the Clean Air Act
(as amended by this Act) and shall remain in effect, unless the Admin-
istrator determines that such implementation plan, or any portion
thereof, is not consistent with the applicable requirements of the Clean
Air Act (as amended by this Act) and will not provide for the attain-
ment of national primary ambient air quality standards in the time
required by such Act. If the Administrator so determines, he shall,
within 90 days after promulgation of any national ambient air quality
standards pursuant to section 109(a) of the Clean Air Act, notify the
State and specify in what respects changes are needed to meet the
additional requirements of such Act, including requirements to .imple-
ment national secondary ambient air quality standards. If such changes
are not adopted by the State after public hearings and within six
months after such notification, the Administrator shall promulgate
such changes pursuant to section 110 (c) of such Act.
(2) The amendments made by section 4(b) shall not be construed as
repealing or modifying the powers of the Administrator with respect
to any conference convened under section 108 (d) of the Clean Air Act
before the date of enactment of this Act.
el stat. 499. (b) Regulations or standards issued under title II of the Clean Air
42 use I857f-i. Act prior to the enactment of this Act shall continue in effect until
revised by the Administrator consistent with the purposes of such Act.
Approved December 31, 1970.
LEGISLATIVE HISTORY;
HOUSE REPORTS: No. 91-1146 (Comra. on Interstate and Foreign Conmeroe)
and No. 91-1783 (Comm. of Conferenoe).
SENATE REPORT No. 91-1196 (Comm. on Public Works).
CONGRESSIONAL RECORD, Vol. 116 (1970):
June 10, oonsidered and passed House.
Sept. 21, 22, oonsidered and passed Senate, amended, in lieu of
S. 4358.
Deo. 16, Senate and House agreed to oonferenoe report.
o
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ATTACHMENT B
PUBLIC LAW 91-258
-------
Public Law 91-258
91st Congress, H. R. 14465
May 21, 1970
Air and Water Quality
(1) The Secretary shall not approve any project application for a
project involving airport location, a major runway extension, or
runway location unless the Governor of the State in which such project
may be located certifies in writing to the Secretary that there is
reasonable assurance that the project will be located, designed,
constructed, and operated so as to comply with applicable air and
water quality standards. In any case where such standards have not
been approved or where such standards have been promulgated by the
Secretary of the Interior or the Secretary of Health, Education, and
Welfare, certification shall be obtained from the appropriate
Secretary. Notice of certification or of refusal to certify shall be
provided within sixty days after the project application is received
by the Secretary.
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ATTACHMENT C
COUNCIL ON ENVIRONMENTAL QUALITY GUIDELINES
-------
FEDERAL
REGISTER
VOLUME 36
Friday, April 23, 1971
NUMBER 79
Washington, D.C.
PART II
COUNCIL ON
ENVIRONMENTAL
QUALITY
•
STATEMENTS ON PROPOSED
FEDERAL ACTIONS AFFECTING
THE ENVIRONMENT
GUIDELINES
No. 79—Pt.
-------
7724
COUNCIL ON
ENVIRONMENTAL QUALITY
STATEMENTS ON PROPOSED FEDERAL
ACTIONS AFFECTING THE EN-
VIRONMENT
Guidelines
1. Purpose. This memorandum pro-
vides guidelines to Federal departments,
agencies, and establishments for pre-
paring detailed environmental state-
ments on proposals for legislation and
other major Federal actions significantly
affecting the quality of the human en-
vironment as required by section 102(2)
(C) of the National Environmental Pol-
icy Act (Public Law 91-190) (hereafter
"the Act"). Underlying the preparation
of such environmental statements is the
mandate of both the Act and Executive
Order 11514 (35 F.R. 4247) of March 4,
1970, that all Federal agencies, to the
fullest extent possible, direct their poli-
cies, plans and programs so as to meet
national environmental goals. The ob-
jective of section 102(2) (C) of the Act
and of these guidelines is to build into
the agency decision making process an
appropriate and careful consideration of
the environmental aspects of proposed
action and to assist agencies in imple-
menting not only the letter, but the
spirit, of the Act. This memorandum also
provides guidance on implementation of
section 309 of the Clean Air Act, as
amended (42 U.S.C. 1857 et seq.).
2. Policy. As early as possible and in
all cases prior to agency decision con-
cerning maj'or action or recommendation
or a favorable report on legislation that
significantly affects the environment,
Federal agencies will, in consultation
with other appropriate Federal, State,
and local agencies, assess in detail the
potential environmental impact in order
that adverse effects are avoided, and
environmental quality is restored or en-
hanced, to the fullest extent practicable.
In particular, alternative actions that
will minimize adverse impact should be
explored and both the long- and short-
range implications to man, his physical
and social surroundings, and to nature,
should be evaluated in order to avoid
to the fullest extent practicable undesir-
able consequences for the environment.
3. Agency and OMB procedures., (a)
Pursuant to section 2(f) of Executive
Order 11514, the heads of. Federal agen-
cies have been directed to proceed with
measures required by section 102(2) (C)
of the Act. Consequently, each agency
will establish, in consultation with the
Council on Environmental Quality, not
later than June 1, 1970 (and, by July 1,
1971, with respect to requirements im-
posed by revisions in these guidelines,
which will apply to draft environmental
statements circulated after June 30,
1971), its own formal procedures for (1)
identifying those agency actions re-
quiring environmental statements, the
appropriate time prior to decision for the
consultations required by section 102
NOTICES
(2)(C), and the agency review process
for which environmental statements are
to be available, (2) obtaining informa-
tion required in their preparation, (3)
designating the officials who are to be
responsible for the statements, (4) con-
sulting with and taking account of the
comments of appropriate Federal, State,
and local agencies, including obtaining
the comment of the Administrator
of the Environmental Protection Agency,
whether or not an environmental state-
ment is prepared, when required under
section 309 of the Clean Air Act, as
amended, and section 8 of these guide-
lines, and (5) meeting the requirements
of section 2(b) of Executive Order 11514
for providing timely public information
on Federal plans and programs with en-
vironmental impact including procedures
responsive to section 10 of these guide-
lines. These procedures should be con-
sonant with the guidelines contained
herein. Each agency should file seven
(7) copies of all such procedures with
the Council on Environmental Quality,
which will provide advice to agencies in
the preparation of their 'procedures and
guidance on the application and inter-
pretation of the Council's guidelines. The
Environmental Protection Agency will
assist in resolving any question relating
to section 309 of the Clean Air Act, as
amended.
(b) Each Federal agency should con-
sult, with the assistance of the Council
on Environmental Quality and the Of-
fice of Management and Budget if de-
sired, with other appropriate Federal
agencies in the development of the
above procedures so as to achieve con-
sistency in dealing with similar activi-
ties and to assure effective coordination
among agencies in their review of pro-
posed activities.
(c) State and local review of agency
procedures, regulations, and policies for
the administration of Federal programs
of assistance to State and local govern-
ments will be conducted pursuant to
procedures established by the Office of
Management and Budget Circular No.
A-85. For agency procedures subject to
OMB Circular No. A-85 a 30-day exten-
sion in the July 1, 1971, deadline set in
section 3 (a) is granted.
(d) It is imperative that existing
mechanisms for obtaining the views of
Federal, State, and local agencies on
proposed Federal actions be utilized to
the extent practicable in dealing with
environmental matters. The Office of
Management and Budget will issue in-
structions, as necessary, to take full
advantage of existing mechanisms (re-
lating to procedures for handling legis-
lation, preparation of budgetary' ma-
terials, new procedures, water resource
and other projects, etc.).
4. Federal agencies included. Section
102(2) (C) applies to all agencies of the
Federal Government with respect to
recommendations or favorable reports
on proposals for (i) legislation and (ii)
other major Federal actions significantly
affecting the quality of the human en-
vironment. The phrase "to the fullest ex-
tent possible" in section 102 (2) (C) Is
meant to make clear that each agency of
the Federal Government shall comply
with the requirement unless existing law
applicable to the agency's operations
expressly prohibits or makes compliance
impossible. (Section 105 of the Act pro-
vides that "The policies and goals set
forth in this Act are supplementary to
those set forth in existing authorizations
of Federal agencies.")
5. Actions included. The following cri-
teria will be employed by agencies in de-
ciding whether a proposed action requires
the preparation of an environmental
statement:
(a) "Actions" include but are not lim-
ited to:
(i) Recommendations or favorable re-
ports relating to legislation including
that for appropriations. The require-
ment for following the section 102(2) (C)
procedure as elaborated in these guide-
lines applies to both (i) agency recom-
mendations on their own proposals for
legislation and (ii) agency reports on
legislation initiated elsewhere. (In the
latter case only the agency which has
primary responsibility for the subject
matter involved will prepare an environ-
mental statement.) The Office of Man-
agement and Budget will supplement
these general guidelines with specific in-
structions relating to the way in which
the section 102(2) (C) procedure fits into
its legislative clearance process;
(ii) Projects and continuing activities:
directly undertaken by Federal agencies;
supported in whole or in part through
Federal contracts, grants, subsidies,
loans, or other forms of funding assist-
ance; involving a Federal lease, permit,
license, certificate or other entitlement
for use;
(iii) Policy, regulations, and proce-
dure-making.
(b) The statutory clause "major Fed-
eral actions significantly affecting the
quality of the human environment" is
to be construed by agencies with a view
to the overall, cumulative impact of the
action proposed (and of further actions
contemplated). Such actions may be lo-
calized in their impact, but if there is
potential that the environment may be
significantly affected, the statement is to
be prepared. Proposed actions, the en-
vironmental impact of which is likely to
be highly controversial, should be cov-
ered in all cases. In considering what
constitutes major action significantly af-
fecting the environment, agencies should
bear in mind that the effect of many
Federal decisions about a project or com-
plex of projects can be individually lim-
ited but cumulatively considerable. This
can occur when one or more agencies
over a period of years puts into a project
individually minor but collectively major
resources, when one decision involving
a limited amount of money is a prece-
dent for action in much larger cases or
represents a decision in principle about
a future major course of action, or when
several Government agencies individual-
ly make decisions about partial aspects
of a major action. The lead agency
FEDERAL REGISTER, VOL. 36, NO. 79—FRIDAY, APRIL 23, 1971
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NOTICES
7725
should prepare an environmental state-
ment If it is reasonable to anticipate a
cumulatively significant impact on the
environment from Federal action. "Lead
agency" refers to the Federal agency
which has primary authority for com-
mitting the Federal Government to a
course of action with signincant envi-
ronmental impact. As necessary, the
Council on Environmental Quality will
assist in resolving questions, of lead
agency determination.
(c) Section 101 (b) of the Act indicates
the broad range of aspects of the en-
vironment to be surveyed in any assess-
ment of significant effect. The Act also
indicates that adverse significant effects
include those that degrade the quality
of the environment, curtail the range of
beneficial uses of the environment, and
serve short-term, to the disadvantage of
long-term, environmental goals. Signifi-
cant effects can also include actions
which may have both beneficial and
detrimental effects, even if, on balance,
the .agency believes that the effect will
be beneficial. Significant adverse effects
on the quality of the human environ-
ment include both those that directly
affect human beings and those that in-
directly affect human beings "through
adverse effects on the environment.
(d) Because of the Act's legislative
history, environmental protective regu-
latory activities concurred in or taken
by the Environmental Protection Agency
are not deemed actions which require
the preparation of environmental state-
ments under section 102(2) (C) of the
Act.
6. Content of environmental state-
ment, (a) The following points are to
be covered:
(i) A description of the proposed
action including information and tech-
nical data adequate to permit a careful
assessment of environmental impact by
commenting agencies. Where relevant,
maps should be provided.
(ii) The probable impact of the pro-
posed action on the environment, includ-
ing impact on ecological systems such as
wildlife, fish, and marine life. Both pri-
mary and secondary significant conse-
quences for the environment should be
included in the analysis. For example,
the implications, if any, of the action
for population distribution or concentra-
tion should be estimated and an assess-
ment made of the effect of any possible
change in population patterns upon the
resource base, including land use, water,
and public services, of the area in
question.
(iii) Any probable adverse environ-
mental effects which cannot be avoided
(such as water or air pollution, undesir-
able land use patterns, damage to life
systems, urban congestion, threats to
health or other consequences adverse
to the environmental goals set out in
section 101 (b) of the Act).
(iv) Alternatives to the proposed
action (section 102(2) (D) of the Act
requires the responsible agency to
"study, develop, and describe appropri-
ate alternatives to recommended courses
of action in any proposal which involves
unresolved conflicts concerning alterna-
tive uses of available resources"). A rig-
orous exploration and objective evalua-
tion of alternative actions that might
avoid some or all 6f the adverse environ-
mental effects is essential. Sufficient
analysis of such alternatives and their
costs and impact on the environment
should accompany the proposed action
through the agency review process in
order not to foreclose prematurely op-
tions which might have less detrimental
effects.
(v) The relationship between local
short-term uses of man's environment
and the maintenance and enhancement
of long-term productivity. This in es-
sence requires the agency to assess the
action for cumulative and long-term
effects from the perspective that each
generation is trustee of the environment
for succeeding generations.
(vi) Any irreversible and irretrievable
commitments of resources which would
be involved in the proposed action should
it be Implemented. This requires the
agency to identify the extent to which
the action curtails the range of benefi-
cial uses of the environment.
(vii) Where appropriate, a discussion
of problems and objections raised by
other Federal, State, and local agencies
and by private organizations and indi-
viduals in the review process and the
disposition of the issues involved. (This
section may be added at the end of the
review process in the final text of the
environmental statement.)
(b) With respect to water quality as-
pects of the proposed action which have
been previously certified by the appro-
priate State or interstate organization as
being in substantial compliance with ap-
plicable water quality standards, the
comment of the Environmental Protec-
tion Agency should also be requested.
(c) Each environmental statement
should be prepared in accordance with
the precept in section 102 (2) (A) of the
Act that all agencies of the Federal Gov-
ernment "utilize a systematic, interdis-
ciplinary approach which will insure the
integrated use of the natural and social
sciences and the environmental design
arts in planning and decisionmaking
which may have an impact on man's
environment."
(d) Where an agency follows a prac-
tice of declining to favor an alternative
until public hearings have been held on
a proposed action, a draft environmental
statement may be prepared and circu-
lated indicating that two or more alter-
natives are under consideration.
(e) Appendix 1 prescribes the form of
the summary sheet which should accom-
pany each draft and final-environmental
statement.
7. Federal agencies to be consulted in
connection with preparation of environ-
mental statement. A Federal agency
considering an action requiring an en-
vironmental statement, on the basis of
(i) a draft environmental statement for
which it takes responsibility or (ii) com-
parable information followed by a hear-
ing subject to the provisions of the
Administrative Procedure Act, should
consult with, and obtain the comment on
the environmental impact of the action
of, Federal agencies with jurisdiction by
law or special expertise with respect to
any environmental impact involved.
These Federal agencies include com-
ponents of (depending on the aspect or
aspects of the environment):
Advisory Council on Historic Preservation.
Department of Agriculture.
Department of Commerce.
Department of Defense.
Department of Health, Education, and Wel-
fare.
Department of Housing and Urban Develop-
ment.
Department of the Interior.
Department of State.
Department of Transportation.
Atomic Energy Commission.
Federal Power Commission.
Environmental Protection Agency.
Office of Economic Opportunity.
For actions specifically affecting the en-
vironment of their geographic jurisdic-
tions, the following Federal and Federal-
State agencies are also to be consulted:
Tennessee Valley Authority.
Appalachian Regional Commission.
National Capital Planning Commission.
Delaware River Basin Commission.
Susquehanna River Basin Commission.
Agencies seeking comment should de-
termine which one or more of the above
listed agencies are appropriate to consult
on the basis of the areas of expertise
identified in Appendix 2 to these guide-
lines. It is recommended (i) that the
above listed departments and agencies
establish contact points, which often are
most appropriately regional offices, for
providing comments on the environ-
mental statements and (ii) that depart-
ments from which comment is solicited
coordinate and consolidate the comments
of their component entities. The re-
quirement in section 102(2) (C) to ob-
tain comment from Federal agencies hav-
ing jurisdiction or special expertise is in
addition to any specific statutory obliga-
tion of any Federal agency to coordinate
or consult with any other Federal or
State agency. Agencies seeking comment
may establish time limits of not less
than thirty (30) days for reply, after
which it may be presumed, unless the
agency consulted requests a specified ex-
tension of time, that the agency con-
sulted has no comment to make. Agen-
cies seeking comment should endeavor
to comply with requests for extensions
of time of up to fifteen (15) days.
8. Interim EPA procedures for imple-
mentation of section 309 of the Clean Air
Act, as amended, (a) Section 309 of the
Clean Air Act, as amended, provides:
SEC. 309. (a) The Administrator shall re-
view and comment In writing on the environ-
mental Impact of any matter relating to
duties and responsibilities granted pursuant
to this Act or other provisions of the author-
ity of the Administrator, contained in any
(1) legislation proposed by any Federal de-
partment or agency, (2) newly authorized
Federal projects for construction and any
major Federal agency action (other than a
project for construction) to which section
102(2) (C) of Public Law 91-190 applies, and
(3) proposed regulations published by any
FEDERAL REGISTER, VOL. 36, NO. 79—FRIDAY, APRIL 23, 1971
-------
7726
NOTICES
department or agency of the Federal Gov-
ernment. Such written comment shall be
made public at the conclusion of any such
review.
(b) In the event the Administrator deter-
mines that any such legislation, action, or
regulation Is unsatisfactory from the stand-
point of public health or welfare or environ-
mental quality, he shall publish his deter-
mination and the matter shall be referred
to the Council on Environmental Quality.
(b) Accordingly, wherever an agency
action related to air or water quality,
noise abatement and control, pesticide
regulation, solid waste disposal, radia-
tion criteria and standards, or other
provisions of the authority of the Ad-
ministrator if the Environmental Pro-
tection Agency is involved, including his
enforcement authority, Federal agencies
are required to submit for review and
comment by the Administrator in writ-
ing: (i) proposals for new Federal con-
struction projects and other major Fed-
eral agency actions to which section
102(2) (C) of the National Environmental
Policy Act applies and (ii) proposed legis-
lation and regulations, whether or not
section 102(2) (C) of the National En-
vironmental Policy Act applies. (Actions
requiring review by the Administrator do
not include litigation or enforcement pro-
ceedings.) The Administrator's com-
ments shall constitute his comments for
the purposes of both section 309 of the
Clean Air Act and section 102(2) (C) of
the National Environmental Policy Act.
A period of 45 days shall be allowed for
such review. The Administrator's written
comment shall be furnished to the re-
sponsible Federal department or agency,
to the Council on Environmental Quality
and summarized in a notice published in
the FEDERAL REGISTER. The public may
obtain copies of such comment on request
from the Environmental Protection
Agency.
9. State and local review. Where no
public hearing has been held on the pro-
posed action at which the appropriate
State and local review has been invited,
and where review of the environmental
impact of the proposed action by State
and local agencies authorized to develop
and enforce environmental standards is
relevant, such State and local review
shall be provided as follows:
(a) For direct Federal development
projects and projects assisted under pro-
grams listed in Attachment D of the Of-
fice of Management and Budget Circular
No. A-95, review of draft environmental
statements by State and local govern-
ments will be through procedures set
forth under Part 1 of Circular No. A-95.
(b) Where these procedures are not
appropriate and where a proposed action
affects matters within their jurisdiction,
review of the draft environmental state-
ment on a proposed action by State and
local agencies authorized to develop and
enforce environmental standards and
their comments on the environmental
impact of the proposed action may be
obtained directly or by distributing the
draft environmental statement to the
appropriate State, regional and metro-
politan clearinghouses unless the Gov-
ernor of the State involved has desig-
nated some other point for obtaining this
review.
10. Use of statements in agency re-
view processes; distribution to Council
on Environmental Quality; availability
to public, (a) Agencies will need to iden-
tify at what stage or stages of a series of
actions relating to a particular matter
the environmental statement procedures
of this directive will be applied. It will
often be necessary to use the procedures
both in the development of a national
program and in the review of'proposed
projects within the national program.
However, where a grant-in-aid program
does not entail prior approval by Fed-
eral agencies of specific projects the view
of Federal, State, and local agencies in
the legislative process may have to suf-
fice. The principle to be applied is to
obtain views of other agencies at the
earliest feasible time in the development
of program and project proposals. Care
should be exercised so as not to duplicate
the clearance process, but when actions
being considered differ significantly
from those that have already been re-
viewed pursuant to section 102(2) (C) of
the Act an environmental statement
should be provided.
(b) Ten (10) copies of draft environ-
mental statements (when prepared), ten
(10) copies of all comments made there-
on (to be forwarded to the Council by
the entity making comment at the time
comment is forwarded to the responsible
agency), and ten (10) copies of the
final text of environmental statements
(together with all comments received
thereon by the responsible agency from
Federal, State, and local agencies and
from private organizations and individ-
uals) shall be supplied to the Council on
Environmental Quality in the Executive
Office of the President (this will serve as
making environmental statements avail-
able to the President). It is important
that draft environmental statements be
prepared and circulated for comment
and furnished to the Council early
enough in the agency review process be-
fore an action is taken in order to permit
meaningful consideration of the envi-
ronmental issues involved. To the
maximum extent practicable no admin-
istrative action (i.e., any proposed action
to be taken by the agency other than
agency proposals for legislation to Con-
gress or agency reports on legislation)
subject to section 102(2) (C) is to be
taken sooner than ninety (90) days after
a draft environmental statement has
been circulated for comment, furnished
to the Council and, except where ad-
vance public disclosure will result in
significantly increased costs of procure-
ment to the Government, made avail-
able to the public pursuant to these
guidelines; neither should such admin-
istrative action be taken sooner than
thirty (30) days after the final text of
an environmental statement (together
with comments) has been made avail-
able to the Council and the public. If the
final text of an environmental statement
is filed within ninety (90) days after a
draft statement has been circulated for
comment, furnished to the Council and
made public pursuant to this section of
these guidelines, the thirty (30) day pe-
riod and ninety (90) day period may run
concurrently to the extent that they
overlap.
(c) With respect to recommendations
or reports on proposals for legislation to
which section 102(2) (C) applies, the
final text of the environmental state-
ment and comments thereon should be
available to the Congress and to the pub-
lic in support of the proposed legislation
or report. In cases where the scheduling
of congressional hearings on recommen-
dations or reports on proposals for legis-
lation which the .Federal agency has for-
warded to the Congress does not allow
adequate time for the completion of a
final text of an environmental statement
(together with comments), a draft en-
vironmental statement may be furnished
to the Congress and made available to
the public pending transmittal of the
comments as received and the final text.
(d) Where emergency circumstances
make it necessary to take an action with
significant environmental impact with-
out observing the provisions of these
guidelines concerning minimum periods
for agency review and advance avail-
ability of environmental statements, the
Federal agency proposing to take the
action should consult with the Council
on Environmental Quality about alter-
native arrangements. Similarly, where
there are overriding considerations of
expense to the Government or impaired
program effectiveness, the responsible
agency should consult the Council con-
cerning appropriate modifications of the
minimum periods.
(e) In accord with the policy of the
National Environmental Policy Act and
Executive Order 11514 agencies have a
responsibility to develop procedures to
insure the fullest practicable provision
of timely public information and under-
standing of Federal plans and programs
with environmental impact in order to
obtain the views of interested parties.
These procedures shall include, when-
ever appropriate, provision for public
hearings, and shall provide the public
with relevant information, including in-
formation on alternative courses of
action. Agencies which hold hearings on
proposed administrative actions or legis-
lation should make the draft environ-
mental statement available to the public
at least fifteen (15) days prior to the
time of the relevant hearings except
where the agency prepares the draft
statement on the basis of a hearing sub-
ject to the Administrative Procedure Act
and preceded by adequate public notice
and information to identify the issues
and obtain the comments provided for
in sections 6-9 of these guidelines.
(f) The agency which prepared the
environmental statement is responsible
for making the statement and the com-
ments received available to the public
pursuant to the provisions of the Free-
dom of Information Act (5 U.S.C., sec.
552), without regard to the exclusion of
interagency memoranda when such
FEDERAL REGISTER, VOL. 36, NO. 79—FRIDAY, APRIL 23, 1971
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NOTICES
7727
memoranda transmit comments of Fed-
eral agencies listed in section 7 of these
guidelines upon the environmental im-
pact of proposed actions subject to sec-
tion 102(2)(C).
(g) Agency procedures prepared pur-
suant to section 3 of these guidelines
shall implement these public informa-
tion requirements and shall include ar-
rangements for availability of environ-
mental statements and comments at the
head and appropriate regional offices of
the responsible agency and at appro-
priate State, regional, and metropolitan
clearinghouses unless the Governor of
the State involved designates some other
point for receipt of this information.
11. Application of section 102(2) (C)
procedure to existing projects and pro-
grams. To the maximum extent practica-
ble the section 102(2) (C) procedure
should be applied to further major Fed-
eral actions having a significant effect
on the environment even though they
arise from projects or programs initiated
prior to enactment of the Act on Jan-
uary 1, 1970. Where it is not practicable
to reassess the basic course of action, it
is still important that further incre-
mental major actions be shaped so as to
minimize adverse environmental conse-
quences. It is also important in further
action that account be taken of environ-
mental consequences not fully evaluated
at the outset of the project or program.
12. SuppleTnentary guidelines, evalua-
tion of procedures, (a) The Council on
Environmental Quality after examining
environmental statements and agency
procedures with respect to such state-
ments will issue such supplements to
these guidelines as are necessary.
(b) Agencies will continue to assess
their experience in the implementation
of the section 102(2) (C) provisions of
the Act and in conforming with these
guidelines and report thereon to the
Council on Environmental Quality by
December 1, 1971. Such reports should
include an identification of the problem
areas and suggestions for revision or
clarification of these guidelines to
achieve effective coordination of views
on. environmental aspects (and alterna-
tives, where appropriate) of proposed ac-
tions without imposing unproductive ad-
ministrative procedures.
RUSSELL E. TRAIN,
Chairman.
APPENDIX I
(Check one) ( ) Draft. ( ) Final
Environmental Statement.
Name of Responsible Federal Agency (with
name of operating division where appropri-
ate).
1. Name of Action. (Check one) ( )
Administrative Action. ( ) Legislative
Action.
2. Brief description of action Indicating
what States (and counties) particularly
affected.
3. Summary of environmental Impact and
adverse environmental effects.
4. List alternatives considered.
5. a. (For draft statements) List all Fed-
eral, State, and local agencies from which
comments have been requested.
b. (For final statements) List all Federal,
State, and local agencies and other sources
from which written comments have been
received.
6. Dates draft statement and final state-
ment made available to Council on Environ-
mental Quality and public.
APPENDIX II—FEDERAL AGENCIES WITH JURIS-
DICTION BY LAW OH SPECIAL EXPERTISE To
COMMENT ON VARIOUS TYPES OF ENVIRON-
MENTAL IMPACTS
AIR
Air Quality and Air Pollution Control
Department of Agriculture—
Forest Service (effects on vegetation).
Department of Health, Education, and Wel-
fare (Health aspects).
Environmental Protection Agency—•
Air Pollution Control Office.
Department of the Interior—
Bureau of Mines (fossil and gaseous fuel
combustion).
Bureau of Sport Fisheries and Wildlife
(wildlife).
Department of Transportation—
Assistant Secretary for Systems Develop-
ment and Technology (auto emissions).
Coast Guard (vessel emissions).
Federal Aviation Administration (aircraft
emissions).
Weather Modification
Department of Commerce—
National Oceanic and Atmospheric Ad-
ministration.
Department of Defense—
Department of the Air Force.
Department of the Interior—
Bureau of Reclamation.
Environmental Aspects of Electric Energy
Generation and. Transmission
Atomic Energy Commission (nuclear power).
Environmental Prbtectlon Agency—
Water Quality Office.
Air Pollution Control Office.
Department of Agriculture—
Rural Electrification Administration (rural
areas).
Department of Defense—
Army Corps of Engineers (hydro-facilities).
Federal Power Commission (hydro-facilities
and transmission lines).
Department of Housing and Urban Devel-
opment (urban areas).
Department of the Interior—(facilities on
Government lands).
Natural Gas Energy Development,
Trans-mission and Generation
Federal Power Commission (natural gas pro-
duction, transmission and supply).
Department of the Interior—
Geological Survey.
Bureau of Mines.
HAZARDOUS SUBSTANCES
Toxic Materials
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration.
Department of Health, Education and Wel-
fare (Health aspects).
Environmental Protection Agency.
Department of Agriculture—
Agricultural Research Service.
Consumer and Marketing Service.
Department of Defense.
Department of the Interior—
Bureau of Sport Fisheries and Wildlife.
Pesticides
Department of Agriculture—
Agricultural Research Service (biological
controls, food and fiber production).
Consumer and Marketing Service.
Forest Service.
Department of Commerce—
National Marine Fisheries Service.
National Oceanic and Atmospheric Admin-
istration.
Environmental Protection Agency—
Office of Pesticides.
Department of the Interior—
Bureau of Sport Fisheries and Wildlife
(effects on fish and wildlife).
Bureau of Land Management.
Department of Health, Education, and Wel-
fare (Health aspects).
Herbicides
Department of Agriculture—
Agricultural Research Service.
Forest Service.
Environmental Protection Agency—
Office of Pesticides.
Department of Health, Education, and Wel-
fare (Health aspects).
Department of the Interior—
Bureau of Sport Fisheries and Wildlife.
Bureau of Land Management.
Bureau of Reclamation.
Transportation and Handling of Hazardous
Materials
Department of Commerce—
Maritime Administration.
National Marine Fisheries Service.
National Oceanic and Atmospheric Admin-
istration (impact on marine life).
Department of Defense—
Armed Services Explosive Safety Board.
Army Corps of Engineers (navigable water-
ways).
Department of Health, Education, and Wel-
fare—
Office of the Surgeon General (Health
aspects).
Department of Transportation—
Federal Highway Administration Bureau of
Motor Carrier Safety.
Coast Guard.
Federal Railroad Administration.
Federal Aviation Administration.
Assistant Secretary for Systems Develop-
ment and Technology.
Office of Hazardous Materials.
Office of Pipeline Safety.
Environmental Protection Agecny (hazardous
substances).
Atomic Energy Commission (radioactive
substances).
LAND USL AND MANAGEMENT
Coastal Areas: Wetlands, Estuaries, Waterfowl
Refuges, and Beaches
Department of Agriculture—
Forest Service.
Department of Commerce—
National Marine Fisheries Service (impact
on marine life).
National Oceanic and Atmospheric Admin-
istration (impact on marine life).
Department of Transportation—
Coast Guard (bridges, navigation).
Department of Defense—
Army Corps of Engineers (beaches, dredge
and fill permits, Refuse Act permits).
Department of the Interior—
Bureau of Sport Fisheries and Wildlife.
National Park Service.
U.S. Geological Survey (coastal geology).
Bureau of Outdoor Recreation (beaches).
Department of Agriculture—
Soil Conservation Service (soil stability,
hydrology).
Environmental Protection Agency—
Water Quality Office.
Historic and Archeological Sites
Department of the Interior—
National Park Service.
Advisory Council on Historic Preservation.
FEDERAL REGISTER, VOL. 36, NO. 79—FRIDAY, APRIL 23, 1971
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7728
NOTICES
Department of Housing and Urban Develop-
ment (urban areas).
Flood Plains and Watersheds
Department of Agriculture—
Agricultural Stabilization and Research
Service.
Soil Conservation Service.
Forest Service.
Department of the Interior—
Bureau of Outdoor Recreation.
Bureau of Reclamation.
Bureau of Sport Fisheries and Wildlife.
Bureau of Land Measurement.
U.S. Geological Survey.
Department of Housing and Urban Develop-
ment (urban areas).
Department of Defense—
Army Corps of Engineers.
Mineral Land Reclamation
Appalachian Regional Commission.
Department of Agriculture—
Forest Service.
Department of the Interior—
Bureau of Mines.
Bureau of Outdoor Recreation.
Bureau of Sport Fisheries and Wildlife.
Bureau of Land Management.
U.S. Geological Survey.
Tennessee Valley Authority.
Parks, Forests, and Outdoor Recreation
Department of Agriculture—
Forest Service.
Soil Conservation Service.
Department of the Interior—
Bureau of Land Management.
National Park Service.
Bureau of Outdoor Recreation.
Bureau of Sport Fisheries and Wildlife.
Department of Defense—
Army Corps of Engineers.
Department of Housing and Urban Develop-
ment (urban areas).
Soil and Plant Life, Sedimentation, Erosion
and Hydrologic Conditions
Department of Agriculture—
Soil Conservation Service.
Agricultural Research Service.
Forest Service.
Department of Defense—
Army Corps of Engineers (dredging,
aquatic plants).
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration.
Department of the Interior—
Bureau of Land Management.
Bureau of Sport Fisheries and Wildlife.
Geological Survey.
Bureau of Reclamation.
Noise Control and Abatement
Department of Health, Education, and Wel-
fare (Health aspects).
Department of Commerce—
National Bureau of- Standards.
Department of Transportation—
Assistant Secretary for Systems Develop-
ment and Technology.
Federal Aviation Administration (Office
of Noise Abatement).
Environmental Protection Agency (Office of
Noise).
Department of Housing and Urban Develop-
ment (urban land use aspects, building
materials standards).
PHYSIOLOGICAL HEALTH AND HUMAN WELL
BEING
Chemical Contamination of Food Products
Department of Agriculture—
Consumer and Marketing Service.
Department of Health, Education, and Wel-
fare (Health aspects).
Environmental Protection Agency—•
Office of Pesticides (economic poisons).
Food Additives and Food Sanitation
Department of Health, Education, and Wel-
fare (Health aspects).
Environmental Protection Agency—
Office of Pesticides (economic poisons, e.g.,
pesticide residues).
Department of Agriculture—
Consumer Marketing Service (meat and
poultry products).
Microbiological Contamination
Department of Health, Education, and Wel-
fare (Health aspects).
Radiation and Radiological Health
Department of Commerce—
National Bureau of Standards.
Atomic Energy Commission.
Environmental Protection Agency—
Office of Radiation.
Department of the Interior—
Bureau of Mines (uranium mines).
Sanitation and Waste Systems
Department of Health, Education, and Wel-
fare— (Health aspects).
Department of Defense—
Army Corps of Engineers.
Environmental Protection Agency—
Solid Waste Office.
Water Quality Office.
Department of Transportation—
U.S. Coast Guard (ship sanitation).
Department of the Interior—
Bureau of Mines (mineral waste and re-
cycling, mine acid wastes, urban solid
wastes).
Bureau of Land Management (solid wastes
on public lands).
Office of Saline Water (deminerallzatlon
of liquid wastes).
Shellfish Sanitation
Department of Commerce—
National Marine Fisheries Service.
National Oceanic and Atmospheric Admin-
istration.
Department of Health, Education, and Wel-
fare (HeJth aspects).
Environmental Protection Agency—
Office of Water Quality.
TRANSPORTATION
Air Quality
Environmental Protection Agency—
Air Pollution Control Office.
Department of Transportation—
Federal Aviation Administration.
Department of the Interior—
Bureau of Outdoor Recreation.
Bureau of Sport Fisheries and Wildlife.
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration (meteorological conditions).
Water Quality
Environmental Protection Agency—
Office of Water Quality.
Department of the Interior—
Bureau of Sport Fisheries and Wildlife.
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration (Impact on marine life and
ocean monitoring).
Department of Defense—
Army Corps of Engineers.
Department of Transportation—
Coast Guard.
Congestion in Urban Areas, Housing and
Building Displacement
Department of Transportation—
Federal Highway Administration.
tlon.
Federal Highway Administration.
Office of Economic Opportunity;
Department of Housing and Urban Develop-
ment.
Department of the Interior—
Bureau of Outdoor Recreation.
Environmental Effects With Special Impact
in Low-Income Neighborhoods
Department of the Interior—
National Park Service.
Office of Economic Opportunity.
Department of Housing and Urban Develop-
ment (urban areas).
Department of Commerce (economic devel-
opment areas).
Economic Development Administration.
Department of Transportation—
Urban Mass Transportation Administra-
tion.
Rodent Control
Department of Health, Education, and Wel-
fare (Health aspects).
Department of Housing and Urban Develop-
ment (urban areas).
Urban Planning
Department of Transportation—
Federal Highway Administration
Department of Housing and Urban Develop-
ment.
Environmental Protection Agency.
Department of the Interior—
Geological Survey.
Bureau of Outdoor Recreation.
Department of Commerce—
Economic Development Administration.
Water Quality and. Water Pollution Control
Department of Agriculture—
Soil Conservation Service.
Forest Service.
Department of the Interior—
Bureau of Reclamation.
Bureau of Land Management.
Bureau of Sports Fisheries and Wildlife.
Bureau of Outdoor Recreation.
Geological Survey.
Office of Saline Water.
Environmental Protection Agency—
Water Quality Office.
Department of Health, Education, and Wel-
fare (Health aspects).
Department of Defense—
Army Corps of Engineers.
Department of the Nayy (ship pollution
control).
Dspartment of Transportation—
Coast Guard (oil spills, ship sanitation).
Department of Commerce—•
National Oceanic and Atmospheric Admin-
istration.
Marine Pollution
Department of Commerce—
National Oceanic and Atmospheric Admin-
istration.
Department of Transportation—
Coast Guard.
Department of Defense—
Army Corps of Engineers.
Office of Oceanographer of the Navy.
River and Canal Regulation and Stream
Channelization
Department of Agriculture—
Soil Conservation Service.
Department of Defense—
Army Corps of Engineers.
FEDERAL REGISTER, VOL. 36, NO. 79—FRIDAY, APRIL 23, 1971
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NOTICES
7729
Department of the Interior—
Bureau of Reclamation.
Geological Survey.
ureau of Sport Fisheries and Wildlife.
Department of Transportation—
Coast Guard.
WILDLIFE
Environmental Protection Agency.
Department of Agriculture—
Forest Service.
Soil Conservation Service.
Department of the Interior—
Bureau of Sport Fisheries and Wildlife.
Bureau of Land Management.
Bureau of Outdoor Recreation.
FEDERAL AGENCY OFFICES FOB RECEIVING AND
COORDINATING COMMENTS UPON ENVIRON-
MENTAL IMPACT STATEMENTS
ADVISORY COUNCIL ON HISTORIC PRESERVATION
Robert Garvey, Executive Dlreetor, Suite 618
801 19th Street NW., Washington, DC 20006
343-8607.
DEPARTMENT OF AGRICULTURE
Dr. T. C. Byerly, Office of the Secretary,
Washington, D.C., 20250, 388-7803.
APPALACHIAN REGIONAL COMMISSION
Orville H. Lerch, Alternate Federal Co-Chair-
man, 1666 Connecticut Avenue NW., Wash-
ington, DC 20235, 967-^103.
DEPARTMENT OF THE ARMY (CORPS OF
ENGINEERS)
Col. J. B. Newman, Executive Director
of Civil Works, Office of the Chief of En-
gineers, Washington, 3.C. 20314, 693-7168.
ATOMIC ENERGY COMMISSION
For nonregulatory matters: Joseph J. Di-
Niinno, Director, Office of Environmental
Affairs, Washington, D.C. 20545, 973-5391.
For regulatory matters: Christopher L. Hen-
derson, Assistant Director for Regulation,
Washington, D.C. 20545, 973-7531.
DEPARTMENT OF COMMERCE
Dr. Sydney R. Galler, Deputy Assistant Sec-
retary for Environmental Affairs, Washing-
ton, D.C. 20230, 967-4335.
DEPARTMENT OF DEFENSE
Dr. Louis M. Rousselot, Assistant Secretary
for Defense (Health and Environment),
Room 3E172, The Pentagon, Washington,
DC 20301, 697-2111.
DELAWARE RIVER BASIN COMMISSION
W. Brinton Whltall, Secretary, Post Office
Box 360, Trenton, NJ 08603, 609-883-9500.
ENVIRONMENTAL PROTECTION AGENCY
Charles Fabrikant, Director of Impact State-
ments Office, 1626 K Street NW., Washr
ington, DC 20460, 632-7719.
FEDERAL POWER COMMISSION
Frederick H. Warren, Commission's Advisor
on Environmental Quality, 441 G Street
NW., Washington, DC 20426, 386-6084.
GENERAL SERVICES ADMINISTRATION
Rod Kreger, Deputy Administrator, General
Services Administration-AD, Washington,
D.C. 20405, 343-6077.
Alternate contact: Aaron Woloshln, Director,
Office of Environmental Affairs, General
Services Admlnlstration-ADF, 343-4161.
DEPARTMENT OF HEALTH, EDUCATION AND
WELFARE
Roger O. Egeberg, Assistant Secretary for
Health and Science Affairs, HEW North
Building, Washington, D.C. 20202, 963-4254.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT1
Charles Orlebeke, Deputy Under Secretary,
451 Seventh Street SW., Washington, DC
20410, 755-6960.
Alternate contact: George Wright, Office of
the Deputy Under Secretary, 755-8192.
1 Contact the Deputy Under Secretary with
regard to environmental Impacts of legisla-
tion, policy statements, program regulations
and procedures, and precedent-making proj-
ect decisions. For all other HUD consultation,
contact the HUD Regional Administra-
tor in whose Jurisdiction the project lies, as
follows:
James J. Barry, Regional Administrator I,
Attention: Environmental Clearance Of-
ficer, Room 405, John F. Kennedy Federal
Building, Boston, MA 02203, 617-223-4066.
S. William Green, Regional Administrator II,
Attention: Environmental Clearance Of-
ficer, 26 Federal Plaza, New York, NT 10007,
212-264-8068.
Warren P. Phelan, Regional Administrator
III, Attention: Environmental Clearance
Officer, Curtis Building, Sixth and Walnut
Street, Philadelphia, PA 19106, 215-597-
2560.
Edward H. Baxter, Regional Administrator
IV, Attention: Environmental Clearance
Officer, Peachtree-Seventh Building, At-
lanta, GA 30323, 404-526-5585.
George Vavoulls, Regional Administrator V,
Attention: Environmental Clearance Offi-
cer, 360 North Michigan Avenue, Chicago,
IL 60601, 312-353-5680.
DEPARTMENT OF THE INTERIOR
Jack O. Horton, Deputy Assistant Secretary
for Programs, Washington, D.C. 20240, 343-
6181.
NATIONAL CAPITAL PLANNING COMMISSION
Charles H. Conrad, Executive Director, Wash-
ington, D.C. 20576, 382-1163.
OFFICE OF ECONOMIC OPPORTUNITY
Frank Carluccl, Director, 1200 19th Street,
NW., Washington, DC 20506, 254-6000.
SUSQUEHANA RIVER BASIN COMMISSION
Alan J. Summervllle, Water Resources Co-
ordinator, Department of Environmental
Resources, 105 South Office Building, Har-
rlsburg, PA. 17120, 717-787-2315.
TENNESSEE VALLEY AUTHORITY
Dr. Francis Gartrell, Director of Environ-
mental Research and Development, 720
Edney Building, Chattanooga, TN 37401,
615-755-2002.
DEPARTMENT OF TRANSPORTATION
Herbert F. DeSlmone, Assistant Secretary for
Environment and Urban Systems, Wash-
ington, D.C. 20590, 426-4S63.
DEPARTMENT OF TREASURY
Richard E. Slltor, Assistant Director, Office
of Tax Analysis, Washington, D.C. 20220,
964-2797.
DEPARTMENT OF STATE
Christian Herter, Jr., Special Assistant to the
Secretary for Environmental Affairs, Wash-
ington, D.C. 20520, 632-7964.
[FR Doc.71-5705 Filed 4-22-71;8:50 am]
Richard L. Morgan, Regional Administrator
VI, Attention: Environmental Clearance
Officer, Federal Office Building, 819 Taylor
Street, Fort Worth, TX 76102, 817-334-
2867.
Harry T. Morley, Jr., Regional Administrator
VII, Attention: Environmental Clear-
ance Officer, 911 Walnut Street, Kansas
City, MO 64106, 816-374-2661.
Robert C. Rosenheim, Regional Administrator
VIII, Attention: Environmental Clearance
Officer, Samsonite Building, 1051 South
Broadway, Denver, CO 80209, 303-837-4061.
Robert H. Balda, Regional Administrator IX,
Attention: Environmental Clearance Offi-
cer, 450 Golden Gate Avenue, Post Office
Box 36003, San Francisco, CA 94102, 415-
556-4752.
Oscar P. Pederson, Regional Administrator
X, Attention: Environmental Clearance
Officer, Room 226, Arcade Plaza Building,
Seattle, WA 98101, 206-583-5415.
FEDERAL REGISTER, VOL. 36, NO. 79—FRIDAY, APRIL 23, 1971
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ATTACHMENT D
CEQ MEMORANDUM
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COUNCIL ON ENVIRONMENTAL QUALITY MEMORANDUM TO FEDERAL AGENCIES
ON PROCEDURES FOR IMPROVING ENVIRONMENTAL IMPACT STATEMENTS
Memorandum for agency and general counsel liaison on National
Environmental Policy Act (NEPA) matters
Subject: Recommendations for Improving Agency NEPA Procedures
In response to a variety of agency inquiries, we are circulating
the attached recommendations for improving agency NEPA procedures,
taking particular account of judicial decisions construing NEPA.
In a previous memorandum dated February 29, 1972 (a copy of which
is also attached) Chairman Train drew attention to the continuing
need for reviewing and improving agency NEPA procedures and made
two basic recommendations:
1. "In particular we are interested in finding ways of
consolidating numbers of impact statements into fewer but
broader and more meaningful reviews."
2. "On the matter of applying the NEPA statutory language
'major Federal actions significantly affecting the quality of the
human environment' to your particular agency programs and
pinpointing the precise timing of the NEPA review and interagency
consultations called for, your agency procedures must provide the
specifics within the framework of the statute and our Guidelines.
These procedures are important both in helping to identify the
types of action on which impact statements are likely to be
necessary and those where statements are not called for."
In addition to agency inquiries about the effect of court
decisions, a number of agencies have raised procedural questions
relating to the interpretation of existing provisions of the CEQ
Guidelines which we feel deserve clarification in a general
memorandum.
Agencies should consider the extent to which the issues discussed
in this memorandum and Chairman Train's memorandum of February 29
are adequately dealt with under their existing NEPA procedures.
In many cases, procedures or practices may have to be modified.
Agencies are requested to inform the Council of the action they
take in response to these recommendations.
/s/Timothy Atkeson
General Counsel
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RECOMMENDATIONS FOR IMPROVING AGENCY NEPA PROCEDURES
A. Substantive Issues: The Required Content of Environmental
Statements.
1. Duty to Disclose Full Range of Impacts.
Court decisions under the National Environmental Policy Act
have established that the "detailed" statement referred to in
section 102 of the Act must thoroughly explore all known
environmental consequences of and alternatives to major proposed
actions even though this may lead to consideration of effects and
options outside the agency's actual control.
Viewed as simply an application of NEPA's "full disclosure"
requirement, this basic principle is meant to ensure that relevant
officials and the public are alerted to the environmental impact
of Federal agency action. See EDF v. Corps of Engineers, 2 ERC
1260, 1267 (E.D. Ark. 1971)
Furthermore, the range of impacts which must be considered
cannot be limited to the traditional area of agency jurisdiction
or expertise. NEPA in essence adds a new mandate to the enabling
legislation of all agencies, requiring the development of
environmental awareness for the full range of impacts of proposed
agency action. By failing to discuss reasonably foreseeable
impacts or by discussing those impacts in a perfunctory manner,
an agency defeats the purpose of the statement and lays itself
open to the charge of non-compliance with the Act.*
In order to ensure full compliance with this requirement it is
desirable that agencies develop in advance a list of the typical
impacts of those classes of action that the agency regularly
*See, e.g., Calvert Cliffs v. AEC, 2 ERC 1779, 1782 (D.C. Cir.
1971)(purpose of statement is to aid agency in its decision and
to fully inform other interested agencies and the public of
environmental consequences); EDF v. Corps of Engineers, 2 ERC
1260, 1267 (E.D. Ark., 1971)(statement must alert President,
CEQ, public, and Congress to all known possible environmental
consequences); EDF v. Hardin, 2 ERC 1425, 1426 (D. D.C. 1971)
(agency must undertake research in planning stage adequate to
expose potential environmental impact); Ely v. Velde, 3 ERC
1286 (4th Cir. 1971)(genuine rather than perfunctory compliance
with NEPA requires agency to explicate fully its course of
inquiry, its analysis and its reasoning); NRDC v. Morton, 3 ERC
1558, 1562, (D.C. Cir. 1972)(statement is for the guidance of
ultimate decisionmakers —Congress and the President—as well as
agency, and must provide discussion of all reasonable alternatives);
Greene County v. FPC, 3 ERC 1595, 1600 (2d Cir. 1972)
(statement must present "a single coherent and comprehensive
environmental analysis").
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takes. In developing such a list, agencies are reminded that
impacts include not only direct effects, but also secondary
effects such as "the effect of any possible change in population
patterns upon the resource base, including land use, water, and
public services, of the area in question." CEQ Guidelines Sec.
By giving consideration to such impacts agencies should also be
able to develop an increasingly specific set of standards for
determining what constitutes "major," environmentally "significant"
actions. Application of such standards to the normal range of
agency actions will make possible earlier and more accurate
identification of actions subject to the Sec. 102 requirement.
Recommendation No. 1: Agencies should develop a list of the
full range of impacts likely to be involved in the typical types
of actions they undertake. This will require a listing both of
typical agency actions affecting the environment, see, e.g.,
Forest Service NEPA procedures, 36 Fed. Reg. 23670 (1971), as
well as a list of related, potential impacts, see, e.g., Water
Resources Council "Proposed Principles ," 36 Fed. Reg. 24159-62
(1971). This description of potential impacts will help guide
officials responsible for preparation of impact statements by
ensuring that critical impacts are not overlooked and by making
possible earlier, more accurate identification of "major,"
environmentally "significant" actions.
2. Duty to "Balance" Advantages and Disadvantages of the
Proposed Action.
Inherent in the duty imposed on any agency by NEPA to promote
environmental quality is the obligation to weigh the possible
environmental effects of a proposal against the effects on other
public values the agency is mandated to consider. If the
environmental effects are adverse, the agency must consider
whether they outweigh the benefits of the proposal in deciding
whether to go ahead. This implicit requirement is confirmed by
the directive of Section 102(2)(B) that agencies develop methods
for giving "presently unquantified environmental amenities and
values ... appropriate consideration in decisionmaking along
with economic and technical considerations."
However, NEPA does not specify whether this balancing of
environmental and other considerations must be spelled out in the
environmental impact statement under Section 102(2)(C). Each of
the five items expressly required to be included in the statement
relates to environmental effects—except the third, which does not
specify what type of information should be given about
"alternatives to the proposed action." From the bare language of
Section 102(2)(C), it is not wholly clear whether the 102
statement is to catalog only the environmental effects of the
proposed action and of alternatives, or whether the statement is
to discuss al1 of the important considerations bearing on the
wisdom of the proposed action.
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The legislative history suggests that Congress did expect the
102 statement to record the agency's trade-offs of competing
values. In explaining the bill on the Senate floor, Senator
Jackson said:
Subsection 102(c) establishes a procedure designed to insure that
in instances where a proposed major Federal action would have a
significant impact on the environment that the impact has in fact
been considered, that any adverse effects which cannot be avoided
are justified by some other stated consideration of national
policy, that short-term uses are consistent with long-term
productivity, and that any irreversible and irretrievable
commitments of resources are warranted. 115 Cong. Rec. 29055 (Oct.
8, 1969). (Emphasis added.)
This interpretation is supported by several statements in court
decisions. In the Calvert Cliffs case the court stressed the
necessity for "balancing" under NEPA and the role of the 102
statement in showing how the balancing was done:
In some instances environmental costs may outweigh economic and
technical benefits and in other instances they may not. But NEPA
mandates a rather finely tuned and "systematic" balancing analysis
in each instance.
To insure that the balancing analysis is carried out and given
full effect, Section 102(2)(C) requires that responsible
officials of all agencies prepare a "detailed statement" covering
the impact of particular actions on the environment, the
environmental costs which might be avoided, and alternative
measures which might alter the cost benefit equation. 2 ERC at
1781-82.
Similarly, in Natural Resources Defense Council v. Morton, the
court observed that:
The impact statement provides a basis for (a) evaluation of the
benefits of the proposed project in light of its environmental
risks, and (b) comparison of the net balance for the proposed
project with the environmental risk presented by alternative
courses of action. 3 ERC at 1561.
These judicial comments do not, however, detract from the primary
purpose of the 102 statement: the assessment of the environmental
effects of possible actions. NEPA was enacted out of a concern
that environmental considerations were not being fully canvassed
before action, and the purpose of Section 102(2)(C) is primarily
to require a "detailed statement" of environmental effects.
Where an agency's proposal entails adverse environmental
consequences, the 102 statement must identify the countervailing
interests that would support a decision to go ahead. This does
not mean that the statement may be used as a promotional document
in favor of the proposal, at the expense of a thorough and
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rigorous analysis of environmental risks. In most cases it may
be impossible and unnecessary to discuss the countervailing
interests in the same detail as environmental factors. The
court in the Morton case observed that "the consideration of
pertinent alternatives requires a weighing of numerous matters .^
such as economics, foreign relations [and] national security..."
3 ERC at 1561. A detailed discussion of each of these subjects
could require as much space as the environmental analysis itself,
destroying the focus of the 102 statement and undercutting the
purpose of NEPA. What is necessary is a succinct explanation of
the factors to be balanced in reaching a decision, thus altering
the agency decisionmaker, as well as the President, Congress, and
the public to the nature of the interests that are being served at
the expense of environmental values.
Recommendation No. 2: Wherever adverse environmental effects
are found to be involved in the proposed action, the impact
statement should indicate what other interests and considerations
of Federal policy might be found to justify those effects. The
statement should also indicate the extent to which these stated
countervailing benefits could be realized by following reasonable
alternatives to the proposed action that would avoid some or all
of the adverse environmental effects. In this connection, agencies
that prepare cost-benefit analyses of proposed actions should
attach such analyses to the environmental impact statement.
3. Duty to Consider Opposing Views.
In Committee for Nuclear Responsibility v. Seaborg, 3 ERC 1126
(D.C. Cir. 1971), the Court of Appeals considered the duty to
discuss opposing views under NEPA. The Court observed that in
order for the 102 statement to meet adequately the "full disclosure
requirement," it must "set forth the opposing views" on significant
environmental issues raised by the proposal. To omit from the
statement any reference whatever to such views would be
"arbitrary and impermissible." Again, however, the court noted
that "only responsible views need be included." What is required
is "a meaningful reference that identifies the problem at hand"
for the agency decisionmaker. 3 ERC at 1129.
An earlier district court opinion stressed this requirement in
even stronger terms:
Where experts, or concerned public or private organizations, or
even ordinary lay citizens, bring to the attention of the
responsible agency environmental impacts which they contend will
result from the proposed agency action, then the Sec. 102
statement should set forth these contentions and opinions, even
if the responsible agency finds no merit in them whatsoever. Of
course, the Sec. 102 statement can and should also contain the
opinion of the responsible agency with respect to all such
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viewpoints. The record should be complete, EOF v. Corps of
Engineers, 2 ERC 1260, 1267 (E.D. Ark. 1971).
Again the relevance of this requirement for agency NEPA
procedures is primarily a matter of ensuring that opposing views
are fairly treated and discussed in the process of preparing
draft and final statements.
Recommendation No. 3: Agencies should make an effort to discover
and discuss all major points of view in the draft statement
itself. Where opposing professional views and responsible
opinions have been overlooked in the draft statement and are
brought to the agency's attention through the commenting process,
the agency should review the positive and negative environmental
effects of the action in light of those views and should make a
meaningful reference in the final statement to the existence of
any responsible opposing view not adequately discussed in the
draft statement with respect to adverse environmental effects,
indicating the agency's response to the issues raised. All
substantive comments received on the draft should be attached to
the final statement, whether or not each such comment is thought
to merit individual discussion by the agency in the text of the
statement. At the same time that copies are sent to the Council,
copies of final statements, with comments attached should also be
sent to all entities — Federal, State, and local agencies, private
organizations and individuals--that made substantive comments on
the draft statement, thus informing such entities of the agency's
disposition of their arguments.
4. Reasonable "Alternatives" to the Proposed Action.
The recent decision in NDRC v Morton, supra, discussed the "full
disclosure" requirement in relation to the requirement that agencies
consider the "alternatives" to the proposed action. See also
EOF v. Corps of Engineers, 2 ERC 1260, 1269 (E.D. Ark. 1971)
(discussing respects in which consideration of alternatives in
proposed dam project was legally deficient). The most significant
aspect of the Morton decision is the court's conclusion that all
alternatives reasonably available to the Government as a whole
must be discussed—even if some of those alternatives are outside
the control of the agency preparing the statement. Discussion of
such alternatives is required in order to guide the decision at
hand as well as to inform the public of the issues and to guide
the decisions of the President and Congress.
The court in this case was careful, however, to emphasize that
it was not requiring the impossible. "A rule of reasons is
implicit in this aspect of the law, as it is in the requirement
that the agency provide a statement concerning the opposing views
that are reasonable." 3 ERC at 1561 (citing Committee for Nuclear
Responsibility, Inc. v. Seaborg, 3 ERC 1126, 1128-29 (D.C.Cir. 1971))
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What NEPA requires is "information sufficient to oernrit
a reasoned choice of alternatives so far as environmental aspects
are concerned." 3 ERC at 1563. Detailed discussion is not
required of alternatives that "are deemed only remote and
speculative possibilities, in view of basic changes required in
statutes and policies of other agencies." 3 ERC at 1564._ And
the agencies need not indulge in "crystal ball' inquiry" in
assessing the effects of alternatives. The agency will have taken
the "hard look" required by NEPA if it has discussed the reasonably
foreseeable effects with a thoroughness commensurate with their
severity and the significance of the action.
The relevance of this decision for agency NEPA procedures is
primarily one of ensuring that the reference to Alternatives"
is interpreted consistently with applicable judicial opinions.
In most cases a judicial interpretation of a statutory term does
not require an amendment of related documents employing the term.
Presumably the term will be applied and interpreted by an agency
in accordance with governing judicial decisions. However, in
view of the importance of the Morton decision and in view of the
conflicting practices of some agencies prior to the decision,
it seems preferable to expand the reference to "alternatives" in
agency NEPA procedures at least to the extent of indicating that
all reasonable alternatives will be evaluated, even though they
may not all lie within the agency's control. Such a revision
would not add in any way to an agency's current legal responsibilities,
and might ensure that officials preparing the statements keep in
mind the proper scope of alternatives they must consider.
Recommendation No. 4: Agencies should indicate that all
reasonable alternatives and their environmental impacts are to be
discussed, including those not within the authority of the
agency. Examples of specific types of alternatives that should
be considered in connection with specific kinds of actions should
be given where possible. Such examples should include, where
relevant:
(1) the alternative of taking no action;
(2) alternatives requiring actions of a significantly different
nature which would provide similar benefits with different
environmental impacts (e.g., a fossil fuel v. a nuclear power
plant);
(3) alternatives related to different designs or details of the
proposed action, which would present different environmental
impacts (e.g., pollution control equipment on a nuclear plant).
In each case, the analysis of alternatives should be
sufficiently detailed and rigorous to permit independent and
comparative evaluation of the benefits, costs and environmental
risks of the proposed action and each alternative.
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B. Procedural Issues: Preparation and Circulation of
Environmental Statements.
TThe "Pre-Draft" Stage.
The issues discussed above with reference to the required content
of impact statements necessarily have implications for the
procedures that agencies follow in preparing such statements.
It has already been noted, for example, that agencies should make
every effort to anticipate and discuss all major points of view
on the impact of the proposed action in the draft statement itself.
A related procedural question concerns the extent to which agencies
should formally seek advice from other agencies or members of the
public prior to preparing a draft statement.
The CEQ guidelines do not require a formalized "pre-draft"
consultation process. Indeed, the reason for requiring a draft
statement in the first place was in order to satisfy the "prior
consultation" requirement found in Sec. 102 of the Act, which
refers only to a "detailed statement." At the same time, however,
in order for the draft statement to present an adequate basis for
discussion and comment, it must provide a fairly thorough
discussion of the impacts of the proposed action and alternatives.
Where an agency lacks the expertise for making such an evaluation,
it should not hesitate to solicit help on an informal basis from
other agencies. Cooperative arrangements of this sort have
already been tried in a number of cases. Furthermore, in preparing
a draft statement any agency should welcome whatever helpful
information maybe forthcoming from other agencies or from the
public.
In order for such information to be forthcoming, however,
agencies would need to develop means of alerting other agencies
and interested members of the public to the fact that a draft
statement is being prepared. An announcement to this effect, at
least with respect to administrative actions, would serve three
useful purposes:
(1) it would enable agencies and interested persons with
relevant information to make such information available in time
for use in the draft statements;
(2) it would provide advance notice of the fact that a draft
statement will soon be available for comment;
(3) it would furnish evidence of the point in time in the agency
decisionmaking process that the 102 process is initiated.
Recommendation No. 5: Agencies should devise an appropriate
early notice system, by which the decision to prepare an impact
statement is announced as soon as it is practicable after that
decision is made. (Compare in this respect the "notice of intent"
provisions contained in Sec. 8b of the NEPA procedures of the
Environmental Protection Agency and the provisions for early
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public notice contained in paragraphs 12 and 14 of the NEPA
procedures of the Corps of Engineers.) In connection with the
development of such a procedure, an agency should consider
maintaining a list of statements under preparation, revising the
list as additions are made and making the list available for public
inspection.
2. Draft Statement Reference to Underlying Documents.
The concern that underlies many of the judicial interpretations
of the Sec. 102 requirement is one of ensuring that the Sec. 102
process provides an adequate opportunity for comment and
participation by other agencies as well as interested members of
the public.
In addition, the requirement that agencies consider and respond
to opposing views suggests that the 102 statement must consist of
more than simple assertions about expected environmental impacts;
the statement must also reflect the underlying information on
which those assertions are based. One of the primary reasons for
the injunction issued in EOF v. Corps of Engineers, for example,
was the discrepancy between assertions made in the impact
statement and the evidence on which those assertions were based.
See 2 ERC at 1267-69. This problem can largely be avoided by
indicating in the draft statement the basis relied on for
assertions that are likely to prove controversial or debatable.
Recommendation No. 6: Draft statements should indicate the
underlying studies, reports, and other information obtained and
considered by the agency in preparing the statement. The agency
should also indicate how such documents may be obtained. If the
documents are attached to the statement, care should be taken to
ensure that the statement remains an essentially self-contained
instrument, easily understood by the reader without the need
for under cross-reference.
3. Publication and Circulation of Statements.
Section 10 of the CEQ guidelines emphasizes the importance of
preparing and circulating draft statements "early enough in the
agency review process before an action is taken in order to permit
a meaningful consideration of the environmental issues involved. "
The Council has recently received complaints from a number of
agencies, as well as from members of the public, that the minimum
periods established for comment and advance availability of
statements are being unduly shortened by the delay in actual
receipt of the statement. Confusion appears to have developed
over whether the time periods are to run from the date the
agency mails the statement, or from the date the statement is
received by the commenting group.
In accordance with Sec. 10(b) of the CEQ guidelines, the
Council's policy has been to calculate the time periods from the
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date the statement is received at the Council on Environmental
Quality. This date will appear in the Council's weekly publication
in the Federal Register of statements received during the past
week as well as in the monthly 102 Monitor. In order to avoid
future confusion on this issue, agencies should ensure that their
practices in calculating the minimum time periods reflect this
pol i cy.
In many cases, of course, a time lag will still occur between
the date of receipt of a statement by the Council and the date of
receipt by other agencies or members of the public. To some
extent, the problems created by this delay can be avoided by
adoption of the early notice device described in Recommendation
No. 5, supra: such a device would enable potential commenting
entities to request direct notification as soon as the draft
statement is available. In large measure, though, the problem of
providing "timely public information," see Executive order 11514,
Sec. 2 (b), requires agency initiative in publicizing the fact
that a draft statement is available.
Agencies should not rely solely on the fact of Federal Register
publication by the Council, but should consider adopting such
practices as publication in local newspapers and automatic
notification of (and possible automatic distribution of statements
to) organizations and individuals that the agency knows are likely
to be interested in the project.
Recommendation No. 7: Agencies should ensure that the minimum
period for review and advance availability of statements are
calculated from the date of receipt of the statement by the
Council on Environmental Quality, as noted in the Council's
Federal Register and 102 Monitor announcements. Agencies should
also devise appropriate methods for publicizing the existence of
draft statements, for example by publication in local newspapers
or by maintaining a list of groups known to be interested in the
agency's activities and directly notifying such groups of the
existence of a draft statement, or sending them a copy, as soon
as it has been prepared.
4. Actions Which Involve More than One Agency.
Some confusion has arisen in applying the "lead agency" concept
to actions involving more than one agency. Section 5(b) of the
CEQ guidelines provides that the lead agency is "the Federal
agency which has primary authority for committing the Federal
Government to a course of action with significant environmental
impact." This description of "lead agency" was not meant to
foreclose the possibility of having a statement prepared jointly
by all agencies involved in the program or project. The critical
consideration is that the cumulative impacts of the entire project
be evaluated, even though each individual agency's action relates
only to a part of the project. In some cases it will be most
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efficient for the agencies involved to agree on a single lead
agency to prepare the statement on the entire project, obtaining
assistance as necessary from the other agencies involved or from
other agencies with relevant expertise. Relevant factors in
determining the proper agency to assume such a role include: the
time sequence in which the agencies become involved in the
project, the magnitude of their respective involvement, and their
relative expertise with respect to the project's environmental
effects. But these criteria are not absolute and do not foreclose
either a cooperatively prepared statement, or advance agreement
on designation of a "lead agency" for purposes of ensuring
leadership and assigning responsibility. Whichever procedure is
followed, the two critical considerations inherent in the
provisions of Section 5 (b) are: (1) evaluation of the entire
project; and (2) preparation of the 102 statement before any of the
participating agencies has taken major or irreversible action
with respect to the project. See Upper Pecos Ass'n vs. Stans,
2 ERC 1418 (10th Cir. 1971), pet'n. for cert, pending, 40 USLW
3444 NO. 71-1133, Mar. 6, 197277
Recommendation No. 8: In resolving "lead agency" questions,
agencies should consider the possibility of joint preparation of
a statement by all agencies involved, as well as designation of
a single agency to assume leadership responsibilities in
preparing the statement. In either case, the statement should
contain an environmental evaluation of the entire project, and
should be prepared before major or irreversible actions have been
taken by any of the participating agencies.
5. Statements which Cover More than One Action.
Related to the above problem, is the problem of determining the
proper scope of an environmental impact statement in connection
with Federal programs that may involve a multiplicity of individual
"actions." Section 10 (a) of the CEQ guidelines makes reference
to the need for such "program" statements in certain cases, and
this topic was explored in some detail at our agency review
sessions in December. In part, the problem requires careful
agency attention to the definition of the "action" that the
agency is undertaking. If the definition is too broad and the
program too far removed from actual implementation, the resulting
analysis is likely to be too general to prove useful. On the
other hand, an excessively narrow definition is likely to result
in impact statements that ignore the cumulative effects of a
number of individually small actions, or that come so late in the
process that basic program decisions are no longer open for
review.
Individual actions that are related either geographically or as
logical parts in a chain of contemplated actions may be more
appropriately evaluated in a single, program statement. Such a
statement also appears appropriate in connection with the issuance of
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rules, regulations, or other general criteria to govern the conduct
of a continuing program, or in the development of a new program
that contemplated a number of subsequent actions. Examples of
such program statements include the Interior Department's
statements on its oil shale program and on its exploitation of
geothermal steam under the Geothermal Steam Act of 1970. In all
of these cases, the program statement has a number of advantages.
It provides an occasion for a more exhaustive consideration of
effects and alternatives than would be practicable in a statement
on an individual action. It ensures consideration of cumulative
impacts that might be slighted in a case-by-case analysis. And
it avoids duplicative reconsideration of basic policy questions.
The program statement can, of course, be supplemented or updated
as necessary to account for changes in circumstances or public
policy and to measure cumulative impacts over time.
A program statement will not satisfy the requirements of
Section 102, however, if it is superficial or limited to
generalities. Where all significant issues cannot be anticipated
or adequately treated in connection with the program as a whole,
statements of more limited scope will be necessary on subsequent,
individual actions in order to complete the analysis.
Recommendation No. 9: In preparing statements, agencies should
give careful attention to formulating an appropriate definition
of the scope of the project that is the subject of the statement.
In many cases, broad program statements will be appropriate,
assessing the environmental effects of a number of individual
actions on a given geographical area, or the overall impact of a
large-scale program or chain of contemplated projects, or the
environmental implications of research activities that have
reached a stage of investment or commitment to implementation
likely to restrict later alternatives. Preparation of program
statements in these cases should be in addition to preparation of
subsequent statements on major individual actions wherever such
actions have significant environmental impacts that were not
fully evaluated in the program statement.
6. Environmental Protective Regulatory Activities.
Section 5 (d) of the CEQ guidelines indicates that certain
activities of the Environmental Protection Agency do not constitute
"actions" for purposes of Section 102. A number of agencies have
been confused by the reference in this section to activities
"concurred" in by EPA. That reference is not meant to permit
agencies to avoid the 102 process merely because the views of the
EPA have somehow been secured with respect to environmental
aspects of proposed activities.
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Additional confusion has been created by recent district
court decisions, severely restricting the applicability of Sec.
5 (d) with respect to regulatory activities taken by agencies
other than the EPA. See Kalur v. Resor, 3 ERC 1458 (D. D.C.
1971); Sierra Club v.Sargent. 3 ERC 1905 (W.D. Wash. 1972).
These cases are being appealed. In addition, legislative
proposals have been introduced seeking Congressional clarification
of some of the issues involved. In this respect, agencies should
be aware of the testimony given by Chairman Train on March 22,
1972 before the Fisheries and Wildlife Conservation Subcommittee
of the House Committee on Merchant Marine and Fisheries:
There has been some confusion about the Council's views on
the Kalur decision and what clarification of NEPA's applicability
to environmental protective regulatory activity is necessary. In
my opinion, the most narrow possible legislative action, addressed
only to the water quality permit program, is desirable. With
respect to EPA's other environmental protective regulatory
activities we are asking EPA to study and revise its NEPA
procedures to state specifically what activities and authorities
are included under Section 5 (d) of our Guidelines and the
rationale for such inclusion.
Recommendation No. 10: Except for the Water Quality permit
program, and those activities of the Environmental Protection
Agency determined by EPA and the CEQ to justify inclusion under
Section 5 (d) of the CEQ guidelines, no other agency actions
should be considered as exempted from the requirements of
Section 102 under Section 5 (d).
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ATTACHMENT E
OMB MEMORANDUM
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
January 9, 1973
MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
Subject: State and Local Agency Review of Impact Statements
We have received indications that there is considerable
confusion among departments and agencies as well as at State
and local levels concerning the relationship between A-95
procedures for review and comment, and reviews of environ-
mental impact statements required under section 102(2)(c)
of the National Environmental Policy Act. There appears to be
uncertainty about (1) the role of the A-95 clearinghouses with
respect to environmental assessment; (2) the timing of and
occasions for State and local inputs to the environmental
assessment process; and (3) responsibility for securing State
and local reviews of environmental impact statements. Therefore,
in anticipation of rewording of the Guidelines (sec. 9, State
and local review), this memorandum will clarify these
relationships and responsibilities.
1. OMB Circular No. A-95 through its system of clearing-
houses provides a means for securing the views of State and
local environmental agencies, which can assist in the prepara-
tion of impact statements. Under A-95, review of the proposed
project in the case of federally assisted projects (Part I
of A-95) generally takes place prior to the preparation of
the impact statement. Therefore, comments on the environmental
effects of the proposed project that are secured during this
stage of the A-95 process represent inputs to the environmental
impact statement.
2. In the case of direct Federal development (Part II of
A-95), Federal agencies are required to consult with clearing-
houses at the earliest practicable time in the planning of the
project or activity- Where such consultation occurs prior to
completion of the draft impact statement, comments relating to
the environmental effects of the proposed action would also
represent inputs to the environmental impact statement.
3. In either case, whatever comments are made on environ-
mental effects of proposed Federal or federally assisted pro-
jects by clearinghouses, or by State and local environmental
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agencies through clearinghouses, in the course of the A-95
review should be attached to the draft impact statement when it
is circulated for review. Copies of the statement should be sent
to the agencies making such comments. Whether those agencies
then elect to comment again on the basis of the draft impact
statement is a matter to be left to the discretion of the
commenting agency depending on its resources, the significance of
the project, and the extent to which its earlier comments were
considered in preparing the draft statement.
4. The clearinghouses may also be used, by mutual agreement,
for securing reviews of the draft environmental impact statement.
However, the Federal agency may wish to deal directly with
appropriate State or local agencies in the review of impact
statements because the clearinghouses may be unwilling or unable
to handle this phase of the process. In some cases, the Governor
may have designated a specific agency, other than the clearing-
house, for securing reviews of impact statements. In any case,
the clearinghouses should be sent copies of the impact statement.
5. To aid clearinghouses in coordinating State and local
comments, draft statements should include copies of State and
local agency comments made earlier under the A-95 process and
should indicate on the summary sheet those other agencies from
which comments have been requested. Appendix I of the CEQ Guide-
lines specifies that such a list shall be included in the summary
sheet. It does not appear that all agencies are consistently
following this practice.
In order to assist you as to the proper State clearinghouse/
appropriate unit of State and local government to contact
concerning review of environmental impact statements, attached you
will find a current listing of State clearinghouses and
alternative points which have been designated by particular States
to receive environmental impact statements.
Your prompt attention to this matter is appreciated.
Caspar W. Weinberger Russell E. Train
Director, Office of Chairman, Council on
Management and Budget Environmental Quality
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COUNCIL OF STATE PLANNING AGENCIES*
(State Clearinghouses — Region X)
November 1972
ALASKA 907-586-5386
R. V. Pavitt, AIP
Director
Division of Planning and Research
Office of the Governor
Pouch AD
Juneau, Alaska 99801
P. T. Davis, AIP
State Development Planner
Div. of Planning and Research
Office of the Governor
Pouch AD
Juneau, Alaska 99801
907-586-5386
IDAHO 208-384-2287
Glenn W. Nichols
State Planning Director
State Planning and Community
Affairs Agency
State House
Boise, Idaho 83707
OREGON 503-378-3732
Robert K. Logan, Administrator
Local Government Relations
Division
240 Cottage Street, S.E.
Salem, Oregon 97310
WASHINGTON 206-753-2200
Frank Baker, Director
Planning and Community
Affairs Agency
State Capitol
Olympia, Washington 98501
Paul T. Benson, Jr.
Assistant Director
State Planning Division
Office of Program Planning
and Fiscal Management
105 House Office Building
Olympia, Washington 98504
206-753-5297
* This listing was supplied by the Council of State Governments,
1150 17th Street, N.W., Washington, D.C. 20036, (202)785-5610.
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ATTACHMENT F
OMB CIRCULAR NO. A-95
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EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
February 9, 1971 CIRCULAR NO. A-95
(As revised by TM#1, dated July 26, 1971 Revised
and TM#2, dated March 8, 1972)
TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS
SUBJECT: Evaluation, review, and coordination of Federal and
federally assisted programs and projects
1. Purpose. This Circular furnishes guidance to Federal
agencies for added cooperation with State and local governments
in the evaluation, review, and coordination of Federal assistance
programs and projects. The Circular promulgates regulations
(Attachment A) which provide, in part, for:
a. Encouraging the establishment of a project notification
and review system to facilitate coordinated planning on an
intergovernmental basis for certain Federal assistance programs
in furtherance of section 204 of the Demonstration Cities and
Metropolitan Development Act of 1966 and Title IV of the
Intergovernmental Act of 1968 (Attachment B).
b. Coordination of direct Federal development programs and
projects with State, regional, and local planning and programs
pursuant to Title IV of the Intergovernmental Cooperation Act of
1968.
c. Securing the comments and views of State and local
agencies which are authorized to develop and enforce environmental
standards on certain Federal or federally assisted projects
affecting the environment pursuant to section 102(2)(C) of the
National Environmental Policy Act of 1969 (Attachment C) and
regulations of the Council on Environmental Quality.
This Circular supersedes Circular No. A-95, dated July 24, 1969,
as amended by Transmittal Memorandum No. 1, dated December 27,
1969. It will become effective April 1, 1971.
2. Basis. This Circular has been prepared pursuant to:
a. Section 401(a) of the Intergovernmental Cooperation Act
of 1968 which provides, in part, that
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"The President shall . . . establish rules and regulations
governing the formulation, evaluation, and review of
Federal programs and projects having a significant impact on
area and community development ..."
and the President's Memorandum of November 8, 1968, to the
Director of the Bureau of the Budget ("Federal Register," Vol.
33, No. 221, November 13, 1968) which provides:
"By virtue of the authority vested in me by section
301 of Title 3 of the United States Code and section 401(a)
of the Intergovernmental Cooperation Act of 1968 (Public Law
90-577), I hereby delegate to you the authority vested in the
President to establish the rules and regulations provided for
in that section governing the formulation, evaluation, and
review of Federal programs and projects haying a significant
impact on area and community development, including programs
providing Federal assistance to the States and localities, to
the end that they shall most effectively serve these basic
objectives.
"In addition, I expect the Bureau of the Budget to
generally coordinate the actions of the departments and
agencies in exercising the new authorizations provided by the
Intergovernmental Cooperation Act, with the objective of
consistent and uniform action by the Federal Government."
b. Title IV, section 403, of the Intergovernmental Coop-
eration Act of 1968 which provides that:
"The Bureau of the Budget, or such other agency as may
be designated by the President, shall prescribe such rules
and regulations as are deemed appropriate for the effective
administration of this Title."
c. Section 204(c) of the Demonstration Cities and
Metropolitan Development Act of 1966 which provides that:
"The Bureau of the Budget, or such other agency as may
be designated by the President, shall prescribe such rules
and regulations as are deemed appropriate for the effective
administration of this section," and
d. Reorganization Plan No. 2 of 1970 and Executive Order
No. 11541 of July 1, 1970, which vest all functions of the
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Bureau of the Budget or the Director of the Bureau of the Budget
in the Director of the Office of Management and Budget.
3. Coverage. The regulations promulgated by this Circular
(Attachment A) will have applicability to:
a. Under Part I, all projects (or significant changes
thereto) for which Federal assistance is being sought under the
programs listed in Attachment D. Limitations and provision for
exceptions are noted therein.
b. Under Part II, all direct Federal development activities,
including the acquisition, use, and disposal of Federal real
property.
c. Under Part III, all Federal programs requiring, by
statute or administrative regulation, a State plan as a
condition or assistance.
d. Under Part IV, all Federal programs providing assistance
to State, local, and regional projects and activities that are
planned on a multijurisdictional basis.
4. Inquiries. Inquiries concerning this Circular may be
addressed to the Office of Management and Budget, Washington,
D.C. 20503, telephone (202)395-3031 (Government dial code
103-3031).
GEORGE P. SHULTZ
Director
Attachments
(No. A-95)
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ATTACHMENT A (Revised)
Circular No. A-95
Revised
REGULATIONS UNDER SECTION 204 OF THE DEMONSTRATION
CITIES AND METROPOLITAN DEVELOPMENT ACT OF 1966,
TITLE IV OF THE INTERGOVERNMENTAL COOPERATION ACT
OF 1968, AND SECTION 102 (2) (C) OF THE NATIONAL
ENVIRONMENTAL POLICY ACT OF 1969
PART I: PROJECT NOTIFICATION AND REVIEW SYSTEM
1. Purpose. The purpose of this Part is to:
a. Further the policies and directives of Title IV of the
Intergovernmental Cooperation Act of 1968 by encouraging the
establishment of a network of State, regional, and metropolitan
planning and development clearinghouses which will aid in the
coordination of Federal or federally assisted projects and
programs with State, regional, and local planning for orderly
growth and development;
b. Implement the requirements of section 204 of the
Demonstration Cities and Metropolitan Development Act of 1966
for metropolitan areas within that network;
c. Implement, in part, requirements of section 102(2)(C) of
the National Environmental Policy Act of 1969, which require
State and local views of the environmental impact of Federal or
federally assisted projects;
d. Provide public agencies charged with enforcing State and
local civil rights laws with opportunity to participate in the
review process established under this Part;
e. Encourage, by means of early contact between applicants
for Federal assistance and State and local governments and
agencies, an expeditious process of intergovernmental coordination
and review of proposed projects.
2. Notification.
a. Any agency of State or local government or any
organization or individual undertaking to apply for assistance
to a project under a Federal program listed in Attachment D will
be required to notify the planning and development clearinghouse
of the State (or States) and the region, if there is one, or of
the metropolitan area in which the project is to be located, of
its intent to apply for assistance. Notification will be
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accompanied by a summary description of the project for which
assistance will be sought. The summary description will contain
the following information:
(1) Identity of the applicant agency, organization or
individual.
(2) The geographic location of the project to be assisted.
(3) A brief description of the proposed project by type,
purpose, general size or scale, estimated cost, beneficiaries, or
other characteristics which will enable the clearinghouses to
identify agencies of State or local government having plans,
programs, or projects that might be affected by the proposed
projects.
(4) A statement as to whether the applicant has been
advised by the Federal agency from which assistance is being
sought concerning requirements for the submission of
environmental impact information in connection with the proposed
project, and the nature of such advice.
(5) The Federal program and agency under which assistance
will be sought as indicated in the Catalog of Federal Domestic
Assistance (April 1970 and subsequent editions).
(6) The estimated date by which time the applicant expects
to formally file an application.
Many clearinghouses have developed notification forms and
instructions. Applicants are urged to contact their clearinghouses
for such information in order to expedite clearinghouse review.
b. In order to assure maximum time for effective coordination
and so as not to delay the timely submission of the completed
application to the Federal agency, such notifications should be
sent at the earliest feasible time.
3. Clearinghouse functions. Clearinghouse functions include:
a. Evaluating the significance of proposed Federal or
federally assisted projects to State, areawide or local plans and
programs, as appropriate.
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b. Receiving and disseminating project notifications to
appropriate State agencies in the case of the State clearinghouse
and to appropriate local governments and agencies in the case of
regional or metropolitan clearinghouses; and providing liaison,
as may be necessary, between such agencies or bodies and the
applicant.
c. Assuring, pursuant to section 102(2)(C) of the National
Environmental Policy Act of 1969, that appropriate State,
metropolitan, regional, or local agencies which are authorized
to develop and enforce environmental standards are informed of
and are given opportunity to review and comment on the
environmental significance of proposed projects for which
Federal assistance is sought.
d. Providing public agencies charged with enforcing State
and local civil rights laws with opportunity to review and comment
on the civil rights aspects of the project for which assistance
is sought.
4. Consultation and review
a. State, metropolitan, and regional clearinghouses may have
a period of thirty days after receipt of a project notification in
which to inform State agencies and local or regional governments
or agencies (including agencies authorized to develop and enforce
environmental standards and public agencies charged with enforcing
State and local civil rights laws) that may be affected by the
proposed project and arrange, as may be necessary, to consult
with the applicant thereon.
b. During this period and during the period in which the
application is being completed, the clearinghouse may work with
the applicant in the resolution of any problems raised by the
proposed project.
c. Clearinghouses may have, if necessary, an additional 30
days to review the completed application and to transmit to the
applicant any comments or recommendations the clearinghouse (or
others) may have.
d. In the case of a project for which Federal assistance is
sought by a special purpose unit of government, clearinghouses
will assure that any unit of general local government, having
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jurisdiction over the area in which the project is to be located,
has opportunity to confer, consult, and comment upon the project
and the application.
e. Applicants will include with the completed application as
submitted to the Federal agency:
(1) Any comments and recommendations made by or through
clearinghouses, along with a statement that such comments have
been considered prior to submission of the application; or
(2) A statement that the procedures outlined in this
section have been followed and that no comments or recommendations
have been received.
f. Where regional or metropolitan areas are contiguous,
coordinative arrangements should be established between the
clearinghouses in such areas to assure that projects in one area
which may have an impact on the development of a contiguous area
are jointly studied. Any comments and recommendations made by or
through a clearinghouse in one area on a project in a
contiguous area will accompany the application for assistance to
that project.
5. Subject matter of comments and recommendations. Comments and
recommendations made by or through clearinghouses with respect to
any project are for the purpose of assuring maximum consistency of
such project with State, regional and local comprehensive plans.
They are also intended to assist the Federal agency (or State
agency, in the case of projects for which the State under certain
Federal grants has final project approval) administering such a
program in determining whether the project is in accord with
applicable Federal law. Comments or recommendations, as may be
appropriate, may include information about:
a. The extent to which the project contributes to the
achievement of State, regional, metropolitan, and local objectives
as specified in section 401(a) of the Intergovernmental Cooperation
Act of 1968, as follows:
(1) Appropriate land uses for housing, commercial,
industrial, governmental, institutional, and other purposes;
(2) Wise development and conservation of natural resources,
including land, water, minerals, wildlife, and others;
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(3) Balanced transportation systems, including highway,
air, water, pedestrian, mass transit, and other modes for the
movement of people and goods;
(4) Adequate outdoor recreation and open space;
(5) Protection of areas of unique natural beauty,
historical and scientific interest;
(6) Properly planned community facilities, including
utilities for the supply of power, water, and communications,
for the safe disposal of wastes, and for other purposes; and
(7) Concern for high standards of design.
c. As provided under section 102(2)(C) of the National
Environmental Policy Act of 1969, the extent to which the project
significantly affects the environment including consideration of:
(1) The environmental impact of the proposed project;
(2) Any adverse environmental effects which cannot be
avoided should the proposed project be implemented;
(3) Alternatives to the proposed project;
(4) The relationship between local short term uses of
man's environment and the maintenance and enhancement of long
term productivity; and
(5) Any irreversible and irretrievable commitments of
resources which would be involved in the proposed project or
action, should it be implemented.
d. The extent to which the project contributes to more
balanced patterns of settlement and delivery of services to all
sectors of the area population, including minority groups.
e. In the case of a project for which assistance is being
sought by a special purpose unit of government, whether the unit
of general local government having jurisdiction over the area in
which the project is to be located has applied, or plans to apply
for assistance for the same or similar type project. This
information is necessary to enable the Federal (or State) agency
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to make the judgments required under section 402 of the
Intergovernmental Cooperation Act of 1968.
6. Federal agency procedures. Federal agencies having programs
covered under this Part (see Attachment D) will develop
appropriate procedures for:
a. Informing potential applicants for assistance under such
programs of the requirements of this Part (1) in program
information materials, (2) in response to inquiries respecting
application procedures, (3) in pre-application conferences, or
(4) by other means which will assure earliest contact between
applicant and clearinghouses.
b. Assuring that all applications for assistance under
programs covered by this part have been submitted to appropriate
clearinghouses for review.
c. Notifying clearinghouses within seven days of any action
(approvals, disapprovals, return for amendment, etc.) taken on
applications that have been reviewed by such clearinghouses.
Where a State clearinghouse has assigned an identification number
to an application, the Federal agency will refer to such
identification number in notifying clearinghouses of actions
taken on the application.
d. Assuring, in the case of an application submitted by a
special purpose unit of government, where accompanying comments
indicate that the unit of general local government having
jurisdiction over the area in which the project is to be located
has submitted or plans to submit an application for assistance
for the same or a similar type project, that appropriate
considerations and preferences as specified in Section 402 of the
Intergovernmental Cooperation Act of 1968, are accorded the unit
of general local government. Where such preference cannot be so
accorded, the agency shall supply, in writing, to the unit of
general local government and the Office of Management and Budget
its reasons therefor.
7- HUD housing programs. Because of the unique nature of the
application and development process for the housing programs of
the Department of Housing and Urban Development, a variation of
the review procedure is necessary. For HUD programs in the
14.100 series listed in Attachment D, the following procedure for
review will be followed:
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a. The HUD Area or Insuring Office will transmit to the
appropriate State clearinghouse and metropolitan or regional
clearinghouse a copy of the initial application for HUP program
approval.
b. The clearinghouses will have 15 days to review the
applications and to forward to the Area or Insuring Office any
comments which they may have, including observations concerning
the consistency of the proposed project with State and areawide
development plans, the extent to which the proposed project will
provide housing opportunities for all segments of the community
and identification of major environmental concerns.
c. This procedure will include only applications involving
new construction and will apply to:
(1) Subdivisions having 50 or more lots involving any HUD
home mortgage insurance program.
(2) Multifamily projects having 100 or more dwelling units
under any HUD mortgage insurance program, or under conventional
or turnkey public housing programs.
(3) Mobile home courts with 100 or more spaces.
(4) College housing provided under the debt service or
direct loan programs for 200 or more students.
All other applications for assistance under the HUD programs in
the 14.100 series listed in Attachment D are exempt from the
requirements of this Circular.
8. Reports and directories.
a. The Direct of the Office of Management and Budget may
require reports, from time to time, on the implementation of this
Part.
b. The Office of Management and Budget will maintain and
distribute to appropriate Federal agencies a directory of State,
regional, and metropolitan clearinghouses.
c. The Office of Management and Budget will notify clearing-
houses and Federal agencies of any expected categories of projects
under programs listed in Attachment D.
(No. A-95)
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PART II: DIRECT FEDERAL DEVELOPMENT
1. Purpose. The purpose of this Part is to:
a. Provide State and local government with information on
projected Federal development so as to facilitate coordination
with State, regional and local plans and programs.
b. Provide Federal agencies with information on the relation-
ship of proposed direct Federal development projects and
activities to State, regional, and local plans and programs; and
to assure maximum feasible consistency of Federal developments with
State, regional, and local plans and programs.
c. Provide Federal agencies with information on the possible
impact on the environment of proposed Federal development.
2. Coordination of direct Federal development projects with
State, regional, and local development.
a. Federal agencies having responsibility for the planning
and construction of Federal buildings and installations or other
Federal public works or development or for the acquisition, use,
and disposal of Federal land and real property will establish
procedures for:
(1) Consulting with Governors, States, regional and metro-
politan clearinghouses, and local elected officials at the
earliest practicable stage in project or development planning on
the relationship of any plan or project to the development plans
and programs of the State, region, or localities in which the
project is to be located.
(2) Assuring that any such Federal plan or project is
consistent or compatible with State, regional, and local develop-
ment plans and programs identified in the course of such
consultations. Exceptions will be made only where there is clear
justification.
(3) Providing State, metropolitan, regional, and local
agencies which are authorized to develop and enforce environmental
standards with adequate opportunity to review such Federal plans
and projects pursuant to section 102(2)(C) of the National
Environmental Policy Act of 1969. Any commitments of such agencies
will accompany the environmental impact statement submitted by
the Federal agency.
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(4) Providing State and areawide agencies which are
authorized to perform comprehensive health planning (under
Sections 314a and 314b of the Public Health Service Act) with
adequate opportunity to review Federal projects for construction
and/or equipment involving capital expenditures exceeding
$200,000 for modernization, conversion, and expansion of Federal
inpatient care facilities, which alter the bed capacity or modify
the primary function of the facility, as well as plans for
provision of major new medical care services. (Excluded are
projects to renovate or install mechanical systems, air
conditioning systems, or other similar internal system
modifications.) The comments of such agencies will accompany the
plan and budget requests submitted by the Federal agency to the
Office of Management and Budget or a certification that the
agencies had been provided a reasonable time to comment and had
failed to do so.
3. Use of clearinghouses. The State, regional, and metropolitan
planning and development clearinghouses established pursuant to
Part I will be utilized to the greatest extent practicable to
effectuate the requirements of this Part. Agencies are urged to
establish early contact with clearinghouses to work out arrange-
ments for carrying out the consultation and review required under
this Part, including identification of types of projects
considered appropriate for consultation and review.
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10
PART III: STATE PLANS
1. Purpose. The purpose of this Part is to provide Federal
agencies with information about the relationship of State plans
required under various Federal programs to State comprehensive
planning and to other State plans.
2. Review of State plans. To the extent not presently required
by statute or administrative regulation, Federal agencies
administering programs requiring by statute or regulation a State
plan as a condition of assistance under such programs will require
that the Governor be given the opportunity to comment on the
relationship of such State plan to comprehensive and other State
plans and programs. Governors will be afforded a period of
forty-five days in which to make such comments, and any such
comments will be transmitted with the plan.
3. State plan. A State plan under this Part is defined to
include any required supporting reports or documentation that
indicate the programs, projects, and activities for which
Federal funds will be utilized.
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11
PART IV: COORDINATION OF PLANNING
IN MULTIJURISDICTIONAL AREAS
1. Policies and objectives. The purposes of this Part are:
a. To encourage and facilitate State and local initiative and
responsibility in developing organizational and procedural
arrangements for coordinating comprehensive and functional
planning activities.
b. To eliminate overlap, duplication, and competition in
State and local planning activities assisted or required under
Federal programs and to encourage the most effective use of State
and local resources available for development planning.
c. To minimize inconsistency among Federal administrative and
approval requirements placed on State, regional, and metropolitan
development planning activities.
d. To encourage the States to exercise leadership in
delineating and establishing a system of planning and development
districts or regions in each State, which can provide a consistent
geographic base for the coordination of Federal, State and local
development programs.
2. Common or consistent planning and development districts or
regions.Prior to the designation or redesignation (or approval
thereof) of any planning and development district or region under
any Federal program, Federal agency procedures will provide a
period of thirty days for the Governor (s) of the State(s) in
which the district or region will be located to review the
boundaries thereof and comment upon its relationship to planning
and development districts or regions established by the State.
Where the State has established such planning and development
districts, the boundaries of designated areas will conform to
them unless there is clear justification for not doing so. Where
the State has not established planning and development districts
or regions which provide a basis for evaluation of the boundaries
of the area proposed for designation, major units of general local
government and Federal agencies administering related programs in
such area will also be consulted prior to designation of the area
to assure consistency with districts established under interlocal
agreement and under related Federal programs. OMB will be notified
by the appropriate Federal agency of any proposed designation that
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12
is being considered by the Governor or being coordinated with other
Federal agencies or local governments and will be informed of the
designation when it is made.
3. Conmon and consistent planning bases and coordination of
related activities in multijurisdictional areas. Each agency will
develop checkpoint procedures and requirements for applications for
planning and development assistance under appropriate programs to
assure the fullest consistency and coordination with related
planning and development being carried on under other Federal
programs^or under State and local programs in any multijurisdictional
areas.
The checkpoint procedures will incorporate provisions covering the
following points:
a. Identification by the applicant of planning activities
being carried on for related programs within the multi jurisdictional
area, including those covering a larger area within which such
multijurisdictional area is located, subareas of the area, and
areas overlapping the multijurisdictional area. Metropolitan or
regional clearinghouses established under Part I of this Circular,
may assist in providing such identification.
b. Evidence of explicit organizational or procedural
arrangements that have been or are being established by the
applicant to assure maximum coordination of planning for such
related functions, programs, projects and activities within the
multijurisdictional area. Such arrangements might include joint
or common boards of directors or planning staffs, umbrella
organizations, common referral or review procedures, information
exchanges, etc.
c. Evidence of cooperative arrangements that have been or are
being made by the applicant respecting joint or common use of
planning resources (funds, personnel, facilities, and services,
etc.) among related programs within the area; and
d. Evidence that planning being assisted will proceed from
base data, statistics, and projections (social, economic,
demographic, etc.) and assumptions that are common to or consistent
with those being employed for planning related activities within
the area.
4. Joint funding. Where it will enhance the quality, comprehensive
scope, and coordination of planning in multijurisdictional areas,
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13
Federal agencies will, to the extent practicable provide for
joint funding of planning activities being carried on therein.
5. Coordination of agency procedures and requirements. With
respect to the steps called for in paragraphs 2 ans 3 of this
Part, departments and agencies will develop for relevant programs
appropriate draft procedures and requirements. Copies of such
drafts will be furnished to the Director of the Office of
Management and Budget and to the heads of departments and agencies
administering related programs. The Office, in consultation with
the agencies, will review the draft procedures to assure the
maximum obtainable consistency among them.
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14
PART V: DEFINITIONS
Terms used in this Circular will have the following meanings:
1. Federal agency -- any department, agency, or instrumentality
in the executive branch of the Government and any wholly owned
Government corporation.
2. State -- any of the several States of the United States, the
District of Columbia, Puerto Rico, any territory or possession of
the United States, or any agency or instrumentality of a State,
but does not include the governments of the political subdivisions
of the State.
3. Unit of general local government -- any city, county, town,
parish, village, or other general purpose political subdivision
of a State.
4. Special purpose unit of local government -- any special
district, public purpose corporation, or other strictly limited
purpose political subdivision of a State, but shall not include a
school district.
5. Federal assistance, Federal financial assistance, Federal
assistance programs, or federally assisted program -- programs
that provide assistance through grant or contractual arrangements.
They include technical assistance programs, or programs providing
assistance in the form of loans, loan guarantees, or insurance.
The term does not include any annual payment by the United States
to the District of Columbia authorized by article VI of the
District of Columbia Revenue Act of 1947 (D.C. Code sec. 47-2501a
and 47-2501b).
6. Comprehensive planning, to the extent directly related to area
needs or needs of a unit of general local government, includes
the following:
a. Preparation, as a guide for governmental policies and
action, of general plans with respect to:
(1) Pattern and intensity of land use,
(2) Provision of public facilities (including transportation
facilities) and other government services,
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15
(3) Effective development and utilization of human and
natural resources.
b. Preparation of long range physical and fiscal plans for
such action.
c. Programming of capital improvements and other major
expenditures, based on a determination of relative urgency,
together with definitive financing plans for such expenditures
in the earlier years of the program.
d. Coordination of all related plans and activities of the
State and local governments and agencies concerned.
e. Preparation of regulatory and administrative measures in
support of the foregoing.
7. Metropolitan area -- a standard metropolitan statistical area
as established by the Office of Management and Budget, subject,
however, to such modifications and extensions as the Office of
Management and Budget may determine to be appropriate for the
purposes of section 204 of the Demonstration Cities and
Metropolitan Development Act of 1966, and these Regulations.
8. Areawide agency -- an official State or metropolitan or
regional agency empowered under State or local laws or under an
interstate compact or agreement to perform comprehensive planning
in an area; an organization of the type referred to in section
701(g) of the Housing Act of 1954; or such other agency or
instrumentality as may be designated by the Governor (or in the
case of metropolitan areas crossing State lines, any one or more
of such agencies or instrumentalities as may be designated by the
Governors of the States involved) to perform such planning.
9. Planning and development clearinghouse or clearinghouse
includes:
a. An agency of the State Government designated by the
Governor or by State law.
b. A nonmetropolitan regional comprehensive planning agency
(herein referred to as "regional clearinghouse") designated by
the Governor (or Governors in the case of regions extending into
more than one State) or by State law.
tne bovernor ^or bovernors in tn
more than one State) or by State
(No. A-95)
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16
c. A metropolitan areawide agency that has been recognized by
the Office of Management and Budget as an appropriate agency to
perform review functions under section 204 of the Demonstration
Cities and Metropolitan Development Act of 1966.
10. Multijurisdictional area -- any geographical area comprising,
encompassing, or extending into more than one unit of general
local government.
11. Planning and development district or region -- a multi-
jurisdictional area that has been formally designated or recognized
as an appropriate area for planning under State law or Federal
program requirements.
12. Direct Federal development -- planning and construction of
public works, physical facilities, and installations or land and
real property development (including the acquisition, use3 and
disposal of real property) undertaken by or for the use of the
Federal Government or any of its agencies.
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ATTACHMENT B
Circular No. A-95
Revised
SECTION 204 OF THE DEMONSTRATION CITIES AND
METROPOLITAN DEVELOPMENT ACT OF 1966,
as amended (80 Stat. 1263, 82 Stat. 208)
"Sec. 204. (a) All applications made after June 30, 1967 for
Federal loans or grants to assist in carrying out open-space land
projects or for planning or construction of hospitals, airports,
libraries, water supply and distribution facilities, sewerage
facilities and waste treatment works, highways, transportation
facilities, law enforcement facilities, and water development and
land conservation projects within any metropolitan area shall be
submitted for review--
"(1) to any areawide agency which is designated to perform
metropolitan or regional planning for the area within which the
assistance is to be used, and which is, to the greatest
practicable extent, composed of or responsible to the elected
officials of a unit of areawide government or of the units of
general local government within whose jurisdiction such agency is
authorized to engage in such planning, and
"(2) if made by a special purpose unit of local government,
to the unit or units of general local government with authority to
operate in the area within which the project is to be located.
"(b)(l) Except as provided in paragraph (2) of this
subsection, each application shall be accompanied (A) by the
comments and recommendations with respect to the project involved
by the areawide agency and governing bodies of the units of
general local government to which the application has been
submitted for review, and (B) by a statement by the applicant that
such comments and recommendations have been considered prior to
formal submission of the application. Such comments shall include
information concerning the extent to which the project is
consistent with comprehensive planning developed or in the process
of development for the metropolitan area or the unit of general
local government, as the case may be, and the extent to which such
application is submitted for the sole purpose of assisting it in
determining whether the application is in accordance with the
provisions of Federal law which govern the making of the loans
or grants.
"(2) An application for a Federal loan or grant need not
be accompanied by the comments and recommendations and the
(No. A-95)
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statements referred to in paragraph (1) of this subsection, if
the applicant certifies that a plan or description of the project,
meeting the requirements of such rules and regulations as may be
prescribed under subsection (c), or such application, has lain
before an appropriate areawide agency or instrumentality or unit
of general local government for a period of sixty days without
comments or recommendations thereon being made by such agency or
instrumentality.
"(3) The requirements of paragraphs (1) and (2) shall also
apply to any amendment of the application which, in light of the
purposes of this title, involves a major change in the project
covered by the application prior to such amendment.
"(c) The Bureau of the Budget, or such other agency as may be
designated by the President, is hereby authorized to prescribe
such rules and regulations as are deemed appropriate for the
effective administration of this section."
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TITLE IV OF THE INTERGOVERNMENTAL COOPERATION
ACT OF 1968 (82 Stat. 1103)
"TITLE IV — COORDINATED INTERGOVERNMENTAL
POLICY AND ADMINISTRATION OF DEVELOP-
MENT ASSISTANCE PROGRAMS"
"DECLARATION OF DEVELOPMENT ASSISTANCE POLICY"
"Sec. 401. (a) The economic and social development of the
Nation and the achievement of satisfactory levels of living depend
upon the sound and orderly development of all areas, both urban
and rural. Moreover, in a time of rapid urbanization, the sound
and orderly development of urban communities depends to a large
degree upon the social and economic health and the sound develop-
ment of smaller communities and rural areas. The President shall,
therefore, establish rules and regulations governing the
formulation, evaluation, and review of Federal programs and
projects having a significant impact on area and community
development, including programs providing Federal assistance to
the States and localities, to the end that they shall most
effectively serve these basic objectives. Such rules and
regulations shall provide for full consideration of the concurrent
achievement of the following specific objectives and, to the
extent authorized by law, reasoned choices shall be made between
such objectives when they conflict:
"(1) Appropriate land uses for housing, commercial,
industrial, governmental, institutional, and other purposes;
"(2) Wise development and conservation of natural resources,
including land, water, minerals, wildlife, and others;
"(3) Balanced transportation systems, including highway,
air, water, pedestrian, mass transit, and other modes for the
movement of people and goods;
"(4) Adequate outdoor recreation and open space;
"(5) Protection of areas of unique natural beauty,
historical and scientific interest;
"(6) Properly planned community facilities, including
utilities for the supply of power, water, and communications, for
the safe disposal of wastes, and for other purposes; and
"(7) Concern for high standards of design.
(No. A-95)
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"(b) All viewpoints -- national, regional, State and local --
shall, to the extent possible, be fully considered and taken into
account in planning Federal or federally assisted development
programs and projects. State and local government objectives,
together with the objectives of regional organizations shall_be
considered and evaluated within a framework of national public
objectives, as expressed in Federal law, and available projections
of future national conditions and needs of regions, States, and
localities shall be considered in plan formulation, evaluation,
and review.
"(c) To the maximum extent possible, consistent with national
objectives, all Federal aid for development purposes shall be
consistent with and further the objectives of State, regional, and
local comprehensive planning. Consideration shall be given to all
developmental aspects of our total national community, including
but not limited to housing, transportation, economic development,
natural and human resources development, community facilities,
and the general improvement of living environments.
"(d) Each Federal department and agency administering a
development assistance program shall, to the maximum extent
practicable, consult with and seek advice from all other
significantly affected Federal departments and agencies in an
effort to assure fully coordinated programs.
"(e) Insofar as possible, systematic planning required by
individual Federal programs (such as highway construction, urban
renewal, and open space) shall be coordinated with and, to the
extent authorized by law, made part of comprehensive local and
areawide development planning."
"FAVORING UNITS OF GENERAL LOCAL GOVERNMENT"
"Sec. 402. Where Federal law provides that both special-
purpose units of local government and units of general local
government are eligible to receive loans or grants-in-aid, heads
of Federal departments and agencies shall, in the absence of
substantial reasons to the contrary, make such loans or grants-in-
aid to units of general local government rather than special-
purpose units of local government."
"RULES AND REGULATIONS"
"Sec. 403. The Bureau of the Budget, or such other agency as
may be designated by the President, is hereby authorized to
prescribe such rules and regulations as are deemed appropriate for
the effective administration of this title."
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ATTACHMENT C
Circular No. A-95
Revised
SECTION 102 (2) (C) OF THE NATIONAL ENVIRONMENTAL
POLICY ACT OF 1969 (83 Stat. 853)'
"Sec. 102. The Congress authorizes and directs that, to
the fullest extent possible; (1) the policies, regulations, and
public laws of the United States shall be interpreted and
administered in accordance with the policies set forth in this
Act, and (2) all agencies of the Federal Government shall--
"(C) include in every recommendation or report on
on proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment,
a detailed statement by the responsible official on--
"(i) the environmental impact of the proposed action,
"(ii) any adverse environmental effects which cannot
be avoided should the proposal be implemented,
"(iii) alternatives to the proposed action,
"(iv) the relationship between local short-term use of
man's environment and the maintenance and enhancement of
long-term productivity, and
"(v) any irreversible or irretrievable commitments of
resources which would be involved in the proposed action
should it be implemented.
"Prior to making any detailed statement, the responsible Federal
official shall consult with and obtain the comments of any Federal
agency which has jurisdiction by law or special expertise with
respect to any environmental impact involved. Copies of such
statement and the comments and views of the appropriate Federal,
State, and local agencies, which are authorized to develop and
enforce environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the public
as provided by section 552 of Title 5, United States Code, and
shall accompany the proposal through the existing agency review
processes; "
(No. A-95)
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ATTACHMENT D (revised)
Circular No. A-95
Revised
COVERAGE OF PROGRAMS UNDER ATTACHMENT A. Part I
1. Programs are listed below pursuant to section 204 of the
Demonstration Cities and Metropolitan Development Act of 1966 and
the Intergovernmental Cooperation Act of 1968. They are
referenced by Catalog of Federal Domestic Assistance identification
numbers (1971 Edition).
2. Heads of Federal departments and agencies may, with the
concurrence of the Office of Management and Budget, exclude certain
categories of projects or activities under listed programs from
the requirements of Attachment A, Part I. OMB concurrence will
be based on the following criteria:
a. Lack of geographic identifiability with respect to
location or impact (e.g., certain types of technical studies);
b. Small scale or size;
c. Essentially local impact (within the applicant juris-
diction); and
d. Other characteristics that make review impractical. OMB
will notify clearinghouses of such exclusions.
3. Covered programs
Department of Agriculture
Farmers Home Administration
10.400 Comprehensive Areawide Water and Sewer
Planning Grants
10.409 Irrigation, Drainage and Other Soil and
Conservation Loans
10.414 Resource Conservation and Development Loans
10.418 Water and Waste Disposal Systems for Rural
Communities
10.419 Watershed Protection and Flood Prevention Loans
(No. A-95)
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Soil Conservation Service
10.901 Resource Conservation and Development
10.904 Watershed Protection and Flood Prevention
Department of Commerce
Economic Development Administration
11.300 Economic Development -- Grants and Loans for
Public Works and Development Facilities
11.302 Economic Development — Planning Assistance
11.303 Economic Development -- Technical Assistance
Department of Defense
Department of the Army, Office of the Chief of Engineers
12.101 Beach Erosion Control
12.106 Small Flood Control Projects
12.107 Small Navigation Projects
12.108 Snagging and Clearing for Flood Control
Department of Health, Education, and Welfare
Health Services and Mental Health Administration
13.206 Comprehensive Health Planning -- Areawide Grants
13.220 Health Facilities Construction -- Hospitals and
Public Health Centers
13.235 Mental Health — Community Assistance Grants for
Narcotic Addiction (Construction Only)
13.249 Regional Medical Programs -- Operational and
Planning Grants (Planning and Construction
Only)
(No. A-95)
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13.253 Health Facilities Construction -- Loans and
Loan Guarantees
National Institutes of Health
13.340 Health Professions Facilities Construction
13.350 Medical Library Assistance -- Regional Medical
Libraries
13.369 Schools of Nursing -- Facilities Construction
Office of Education
13.408 Construction of Public Libraries
13.356 Higher Education Academic Facilities -- State
Comprehensive Planning
13.457 Higher Education Academic Facilities Construction
-- Interest Subsidization
13.459 Higher Education Academic Facilities Construction
-- Public Community Colleges and Technical
Institutes
13.477 School Assistance in Federally Affected Areas --
Construction
13.493 Vocational Education -- Basic Grants to States
(Construction Only)
Social and Rehabilitation Service
13.711 Juvenile Delinquency Planning, Prevention, and
Rehabilitation (Planning and Construction
Only)
13.746 Vocational Rehabilitation Services -- Basic
Support (Construction Only)
13.753 Developmentally Disabled - Basic support
(Construction Only)
13.755 Vocational Rehabilitation - Construction Grants
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Department of Housing and Urban Development
Housing Production and Mortgage Credi't/FHA
Note: The following programs are subject to the
limitations and procedures set forth in
paragraph 7, Part I, of the Circular.
14.100 Housing for Educational Institutions
14.103 Interest Reduction Payments - Rental and
Cooperative Housing for Lower Income
Families (236)
14.105 Interest Subsidy - Homes for Lower Income
Families (235(1))
14.112 Mortgage Insurance - Construction or Rehabilitation
of Condominium Projects (234(d))
14.115 Mortgage Insurance - Development of Sales Type
Cooperative Projects (213)
14.117 Mortgage Insurance - Homes (203(b))
14.118 Mortgage Insurance - Homes for Certified
Veterans (203(b)
14.119 Mortgage Insurance - Homes for Disaster Victims
(203(h))
14.120 Mortgage Insurance - Homes for Low and Moderate
Income Families (221(d)(2))
14.121 Mortgage Insurance - Homes in Outlying Areas
(203(1))
14.122 Mortgage Insurance - Homes in Urban Renewal
Areas (220 homes)
14.124 Mortgage Insurance - Investor Sponsored
Cooperative Housing (213)
14.125 Mortgage Insurance - Land Development and New
Communities (Title X)
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14.126 Mortgage Insurance - Management Type
Cooperative Projects (213)
14.127 Mortgage Insurance - Mobile Home Courts (207)
14.134 Mortgage Insurance - Rental (207)
14.135 Mortgage Insurance - Rental Housing for
Moderate Income Families (221(d)(4))
14.137 Mortgage Insurance - Rental Housing for Low
and Moderate Income Families, Market Interest
Rate (221(d)(3))
14.138 Mortgage Insurance - Rental Housing for the
Elderly (231)
14.139 Mortgage Insurance - Rental Housing in Urban
Renewal Areas (220)
14.146 Public Housing - Acquisition, Construction,
Rehabilitation (New Construction Only)
14.149 Rent Supplements - Rental Housing for Low
Income Families
Community Planning and Management
14.203 Comprehensive Planning Assistance
14.207 New Communities -- Loan Guarantees
14.208 New Communities -- Supplementary Grants
14.214 Urban Systems Engineering Demonstration Grants
Community Development
14.300 Model Cities Supplementary Grants
14.301 Basic Water and Sewer Facilities - Grants
14.303 Open Space Land Programs
14.304 Public Facility Loans
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14.306 Neighborhood Development
14.307 Urban Renewal Projects
Department of the Interior
Bureau of Outdoor Recreation
15.400 Outdoor Recreation -- Acquisition & Development
15.401 Outdoor Recreation State Planning -- Financial
Assistance
Bureau of Reclamation
15.501 Irrigation Distribution System Loans
15.503 Small Reclamation Projects
National Park Service
15.904 Historic Preservation
Department of Justice
Law Enforcement Assistance Administration
16.500 Law Enforcement Assistance — Comprehensive
Planning Grants
16.501 Law Enforcement Assistance -- Discretionary
Grants
16.502 Law Enforcement Assistance -- Improving and
Strengthening Law Enforcement
Department of Labor
Manpower Administration
17.205 Cooperative Area Manpower Planning System
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Department of Transportation
Federal Aviation Administration
20.102 Airport Development Aid Program
20.103 Airport Planning Grant Program
Federal Highway Administration
20.201 Forest Highways
20.204 Highway Beautification -- Landscaping and
Scenic Enhancement
20.205 Highway Planning and Construction
20.206 Highway Planning and Research Studies
20.209 Public Lands Highways
20.211 Traffic Operations Program to Increase
Capacity and Safety (Construction Only)
Urban Mass Transportation Administration
20.500 Urban Mass Transportaion Capital Improvement
Grants (Planning & Construction Only)
20.501 Urban Mass Transportation Capital Improvement
Loans (Planning & Construction Only)
20.505 Urban Mass Transportation Technical Studies
Grants (Planning & Construction Only)
Appalachian Regional Commission
23.003 Appalachian Development Highway System
23.004 Appalachian Health Demonstrations (Planning
and Construction only)
23.008 Appalachian Local Access Roads
23.010 Appalachian Mine Area Restoration
23.012 Appalachian Vocational Education Facilities
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National Science Foundation
47.036 Intergovernmental Science Programs
Office of Economic Opportunity
49.002 Community Action (excluding administration,
research, training and technical assistance,
and evaluation).
Water Resources Council
65.001 Water Resources Planning
Environmental Protection Agency
Air Pollution Control Office
66.001 Air Pollution Control Program Grants
(Planning Only)
Solid Waste Management Office
66.300 Solid Wdste Demonstration and Resource
Recovery System Grants
66.301 Solid Waste Planning Grants
Water Quality Office
66.400 Construction Grants for Wastewater Treatment
Works
66.401 Water Pollution Control Comprehensive Basin
Planning Grants
66.407 Water Pollution Control - State and Interstate
Program Grants
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ATTACHMENT G
EXECUTIVE ORDER 11507
-------
THE PRESIDENT 2573
Executive Order 11507
PREVENTION, CONTROL, AND ABATEMENT OF AIR AND WATER
POLLUTION AT FEDERAL FACILITIES
By virtue" of the authority vested in me as President of the United
States and in furtherance of the purpose and policy of the Clean Air
Act, as amended (42 TJ.S.C. 1857), the Federal Water Pollution Con-
trol Act, as amended (33 TJ.S.C. 466), and the National Environmental
Policy Act of 1969 (Public Law No. 91-190, approved January 1,
1970), it is ordered as follows:
SECTION 1. Policy. It is the intent of this order that the Federal
Government in the design; operation, and maintenance of its facilities
shall provide leadership an the nationwide effort to protect and en-
hance the quality of our air and water resources.
SEC. 2. Definitions. As used in this order:
(a) The term "respective Secretary" shall mean the Secretary of
Health, Education, and "Welfare in matters pertaining to air pollu-
tion control and the Secretary of the Interior in matters pertaining
to water pollution control.
(b) The term "agencies" shall mean the departments, agencies, and
establisliments of the executive branch.
(c) The term "facilities" shall mean the buildings, installations,
structures, public works, equipment, aircraft, vessels, and other
vehicles and property, owned by or constructed or manufactured for
the purpose of leasing to the Federal Government.
(d) The term "air and water quality standards" shall mean respec-
tively the quality standards and related plans of implementation,
including emission standards, adopted pursuant to the Clean Air Act,
as amended, and the Federal Water Pollution Control Act, as
amended, or as prescribed pursuant to section 4(b) of this order.
(e) The term "performance specifications" shall mean permissible
limits of emissions, discharges, or other values applicable to a particu-
lar Federal facility that would, as a minimum, provide for conform-
ance with air and water quality standards as defined herein.
(f) The term "United States" shall mean the fifty States, the Dis-
trict of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, and Guam.
SEC. 3. Responsibilities, (a) Heads of agencies shall, with regard
to all facilities under their jurisdiction:
(1) Maintain review and surveillance to ensure that the standards
set forth in section 4 of this order are met on a continuing basis.
(2) Direct particular attention to identifying potential air and
water quality problems associated with the use and production of
new materials and make provisions for their prevention and control.
(3) Consult with the respective Secretary concerning the best tech-
niques and methods available for the protection and enhancement of
air and water quality.
(4) Develop and publish procedures; within six months of the date
of this order, to ensure that the facilities under their jurisdiction are
in conformity with this order. In the preparation of such procedures
there shall be timely and appropriate consultation with the respective
Secretary.
(b) The respective Secretary shall provide leadership in imple-
menting this order, including the provision of technical advice and
assistance to the heads of agencies in connection with their duties and
responsibilities under this order.
(c) The Council on Environmental Quality shall maintain con-
tinuing review of the implementation of this order and shall, from
time to time, report to the President thereon.
FEDERAL REGISTER, VOL. 35, NO. 25—THURSDAY, FEBRUARY 5, 1970
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2574 THE PRESIDENT
SEC. 4. Standards, (a) Heads of agencies shall ensure that all
facilities under their jurisdiction are designed, operated, and main-
tained so as to meet the following requirements:
(1) Facilities shall conform to air and water quality standards as
defined in section 2(d) of this order. In those cases where no such
air or water quality standards are in force for a particular geographi-
cal area, Federal facilities in that area shall conform to the standards
established pursuant to subsection (b) of this section. Federal facili-
ties shall also conform to the performance specifications provided
for in this order.
(2) Actions shall be taken to avoid or minimize wastes created
through the complete cycle of operations of each facility.
(3) The use of municipal or regional waste collection or disposal
systems shall be the preferred method of disposal of wastes from
Federal facilities. Whenever use of such a system is not feasible or
appropriate, the heads of agencies concerned shall take necessary
measures for the satisfactory disposal of such wastes, including:
(A) When appropriate, the installation and operation of their own
waste treatment and disposal facilities in a manner consistent with
this section.
(B) The provision of trained manpower, laboratory and other
supporting facilities as appropriate to meet the requirements of this
section.
(C) The establishment of requirements that operators of Federal
pollution control facilities meet levels of proficiency consistent with
the operator certification requirements of the State in which the
facility is located. In the absence of such State requirements the
respective. Secretary may issue guidelines, pertaining to operator
qualifications and performance, for the use of heads of agencies.
(4) The use, storage, and handling of all materials, including but
not limited to, solid fuels, ashes, petroleum products, and other
chemical and biological agents, shall be carried out so as to avoid or
minimize the possibilities for water and air pollution. When appro-
priate, preventive measure shall be taken to entrap spillage or dis-
charge or otherwise to prevent accidental pollution. Each agency,
in consultation with the respective Secretary, shall establish appro-
priate emergency plans and procedures for dealing with accidental
pollution.
(5) No waste shall be disposed of or discharged in such a manner
as could result in the pollution of ground water which would endanger
the health or welfare of the public.
(0) Discharges of radioactivity shall be in accordance, with the
applicable rules, regulations, or requirements of the Atomic Energy
Commission and with the policies and guidance of the Federal Radia-
tion Council as published in the FEDKKAI, RKOISTKR.
(b) In those cases where- there-, arc no air or water quality standards
as defined in sec.fion 2(d) of this order in force for a particular geo-
graphic area or in those cases where more stringent requirements'are
deemed advisable for Federal facilities, the respective Secretary, in
consultation with appropriate. Federal, State, interstate, and local
agencies, may issue, regulations establishing air or water quality stand-
ards for the purpose of this order, including related schedules for
implementation.
(c) The heads of agencies, in consultation with the respective Sec-
retary, may from time to time identify facilities or uses thereof which
are to be exempted, including temporary relief, from provisions of this
order in the interest of national security or in extraordinary cases
where, it is in the national interest. Such exemptions shall be, reviewed
periodically by the respective Secretary and the heads of the agencies
concerned. A report on exemptions granted shall be submitted to the
Council on Environmental Quality periodically.
FEDERAL REGISTER, VOL. 35, NO. 25—THURSDAY, FEBRUARY 5, 1970
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THE PRESIDENT 2575
SEC. 5. Procedures for abatement of air and water pollution at exist-
ing Federal facilities, (a) Actions necessary to meet the requirements
of subsections (a) (1) and (b) of section 4 of this order pertaining to
air and water pollution at existing facilities are to be completed or
under way no later than December 31,1972. In cases where an enforce-
ment conference called pursuant to law or air and water quality stand-
ards require earlier actions, the earlier date shall be applicable.
(b) In order to ensure full compliance with the requirements of
section 5(a) and to facilitate budgeting for necessary corrective and
preventive measures, heads of agencies shall present to the Director of
the Bureau of the Budget by June 30, 1970, a plan to provide for such
improvements as may be necessary to meet the required date. Subse-
quent revisions needed to keep any such plan up-to-date shall be
promptly submitted to the Director of the Bureau of the Budget.
(c) Heads of agencies shall notify the respective Secretary as to
the performance specifications proposed for each facility to meet the
requirements of subsections 4 (a) (1) and (b) of this order. Where the
respective Secretary finds that such performance specifications are
not adequate to meet such requirements, he shall consult with the
agency head and the latter shall thereupon develop adequate perform-
ance specifications.
(d) As may be found necessary, heads of agencies may submit
requests to the Director of the Bureau of the Budget for extensions of
time for a project beyond the time specified in section 5 (a). The Direc-
tor, in consultation with the respective Secretary, may approve such
requests if the Director deems that such project is not technically
feasible or immediately necessary to meet the requirements of sub-
sections 4 (a) and (b). Full justification as to the extraordinary cir-
cumstances necessitating any such extension shall be required.
(e) Heads of agencies shall not use for any other purpose any of
the amounts appropriated and apportioned for corrective and preven-
tive measures necessary to meet the requirements of subsection (a)
for the fiscal year ending June 30, 1971, and for any subsequent
fiscal year.
SEC. 6. Procedures for new Federal facilities, (a) Heads of agencies
shall ensure that the requirements of section 4 of this order are con-
sidered at the earliest possible stage of planning for new facilities.
(b) A request for funds to defray the cost of designing and con-
structing new facilities in the United States shall be included in the
annual budget estimates of an agency only if such request includes
funds to defray the costs of sncn measures as may be necessary to
assure that the new facility will meet the requirements of section 4
of this order.
(c) Heads of agencies shall notify the respective Secretary us to the
performance specifications proposed for each facility when action is
necessary to meet the requirements of subsections 4(a) (1) and (1>)
of this order. "Where the respective Secretary finds that such per-
formance specifications are not adequate to meet such requirements
he shall consult with the agency head and the latter shall thereupon
develop adequate performance specifications.
(d) Heads of agencies shall give due consideration to the quality
of air and water resources when facilities are constructed or operated
outside the United States.
SEC. 7. Procedures for Federal water resoti/'Cis projects, (a) All
water resources projects of the Departments of Agriculture, the
Interior, and the Army, the Tennessee Valley Authority, and the
United States Section of the International Boundary and Water
Commission shall be consistent with the requirements of section 4
of this order. In addition, all such projects shall be presented for the
consideration of the Secretary of the Interior at the earliest feasible
stage if they involve proposals or recommendations with respect to
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2576 THE PRESIDENT
the authorization or construction of any Federal water resources proj-
ect in the United States. The Sec-rotary of the Interior shall review
plans and supporting data for all such projects relating to water
quality, and shall prepare a report to the head of the responsible
agency describing flie potential impact of the project on water quality,'
including recommendations concerning any changes or other measures
with respect thereto which he considers to be necessary in connection
with the design, const ruction, and operation of the project.
(b) The report of (lie Secretory of the Interior shall accompany
at the earliest practicable stage any report proposing authorization
or construction, or a request for funding, of such a water resource
project. In any case in which the Secretary of the Interior fails to
submit a report within 00 days after receipt of project plans, the
head of the agency concerned may propose authorization, construc-
tion, or funding of the project without such an accompanying report.
In such a case, the head of the agency concerned shall explicitly state
in his request or report concerning the project that the Secretary of
the Interior has not reported on the potential impact of the project
on water quality.
SEC. 8. tSai'/ny pi-orixions. Except to the extent that they are in-
consistent with this order, all outstanding rules, regulations, orders,
delegations, or other forms of administrative action issued, made, or
otherwise taken under the orders superseded by section 0 hereof or
relating to the subject of this order shall remain in full force and
effect until amended, modified, or terminated by proper authorit}'.
SEC. 9. Orders superseded. Executive Order No. 11282 of May 26.
1966, and Executive Order No. 11288 of July 2, 19GG. are hereby
superseded.
THE WHITE HOTTSF.,
February >h WHO.
[F.R. Doc. 70-3DGG; Fik-il, 1'Vb. 4, 1970; 1^:33 p.m.]
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ATTACHMENT H
EXECUTIVE ORDER 11514
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THE PRESIDENT 4247
Executive Order 11514
PROTECTION AND ENHANCEMENT OF ENVIRONMENTAL QUALITY
By virtue of the authority vested in me as President of the United
States and in furtherance of the purpose and policy of the National
Environmental Policy Act of 1969 (Public Law No. 91-190,-approved
January 1, 1970), it is ordered as follows:
SECTION 1. Policy. The Federal Government shall provide leader-
ship in protecting and enhancing the quality of the Nation's environ-
ment to sustain and enrich human life. Federal agencies shall initiate
measures needed to direct their policies, plans and programs so as to
meet national environmental goals. The Council on Environmental
Quality, through the Chairman, shall advise and assist the President
in leading this national effort.
SEC. 2. Responsibilities of Federal agencies. Consonant with Title
I of the National Environmental Policy Act of 1969, hereafter referred
to as the "Act", the heads of Federal agencies shall:
(a) Monitor, evaluate, and control on a continuing basis their agen-
cies' activities so as to protect and enhance the quality of the environ-
ment. Such activities shall include those directed to controlling
pollution and enhancing the environment and those designed to accom-
plish other program objectives which may affect the quality of the
environment. Agencies shall develop programs and measures to protect
and enhance environmental quality and shall assess progress in meeting
the specific objectives of such activities. Heads of agencies shall consult
with appropriate Federal, State and local agencies in carrying out
their activities as they affect the quality of the environment.
(b) Develop procedures to ensure the fullest practicable provision
of timely public information and understanding of Federal plans and
programs with environmental impact in order to obtain the views of
interested parties. These procedures shall include, whenever appro-
priate, provision for public hearings, and shall provide the public
with relevant information, including information on alternative
courses of action. Federal agencies shall also encourage State and
local agencies to adopt similar procedures for informing the public
concerning their activities affecting the quality of the environment.
(c) Insure that information regarding existing or potential en-
vironmental problems and control methods developed as part of re-
search, development, demonstration, test, or evaluation activities is
made available to Federal agencies, States, counties, municipalities,
institutions, and other entities, as appropriate.
(d) Review their agencies' statutory authority, administrative regu-
lations, policies, and procedures, including those relating to loans,
grants, contracts, leases, licenses, or permits, in order to identify any
deficiencies or inconsistencies therein which prohibit or limit full
compliance with the purposes and provisions of the Act. A report on
this review and the corrective actions taken or planned, including
such measures to be proposed to the President as may be necessary to
bring their authority and policies into conformance with the intent,
purposes, and procedures of the Act, shall be provided to the Council
on Environmental Quality not later than September 1,1970.
(e) Engage in exchange of data and research results, and cooperate
with agencies of other governments to foster the purposes of the Act.
(f) Proceed, in coordination with other agencies, with actions
required by section 102 of the Act.
SEC. 3. Responsibilities of Council on Environmental Quality. The
Council on Environmental Quality shall:
(a) Evaluate existing and proposed policies and activities of the
Federal Government directed to the control of pollution and the en-
hancement of the environment and to the accomplishment of other
objectives which affect the quality of the environment. This shall in-
clude continuing review of procedures employed in the development
and enforcement of Federal standards affecting environmental quality.
Based upon such evaluations the Council shall, where appropriate,
recommend to the President policies and programs to achieve more
FEDERAL REGISTER, VOL. 35, NO. 46—SATURDAY, MARCH 7, 1970
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4248 THE PRESIDENT
effective protection and enhancement of environmental quality and
shall, where appropriate, seek resolution of significant environmental
issues.
(b) Recommend to the President and to the agencies priorities
among programs designed for the control of pollution and for enhance-
ment of the environment.
(c) Determine the need for new policies and programs for dealing
with environmental problems not being adequately addressed.
(d) Conduct, as it determines to be appropriate, public hearings
or conferences on issues of environmental significance.
(e) Promote the development and use of indices and monitoring
systems (1) to assess environmental conditions and trends, (2) to
predict the environmental impact of proposed public and private ac-
tions, and (3) to determine the effectiveness of programs for protecting
and enhancing environmental quality.
(f ) Coordinate Federal programs related to environmental quality.
(g) Advise and assist the President and the agencies in achieving
international cooperation for dealing with environmental problems,
under the foreign policy guidance of the Secretary of State.
(h) Issue guidelines to Federal agencies for the preparation of
detailed statements on proposals for legislation and other Federal ac-
tions affecting the environment, as required by section 102 (2) (C)
of the Act.
(i) Issue such other instructions to agencies, and request such re-
ports and other information from them, as may be required to carry
out the Council's responsibilities under the Act.
(j) Assist the President in preparing the annual Environmental
Quality Report provided for in section 201 of the Act.
(k) Foster investigations, studies, surveys, research, and analyses
relating to (i) ecological systems and environmental quality, (ii) the
impact of new and changing technologies thereon, and (iii} means of
preventing or reducing adverse effects from such technologies.
SEC. 4. Ainendments of E.O. lll£t%. Executive Order No. 11472 of
May 29, 1969, including the heading thereof, is hereby amended :
(1) By substituting for the term "the Environmental Quality Coun-
cil'', wherever it ocelli's, the following: "the Cabinet Committee on
the Environment".
(2) By substituting for the term "the Council", wherever it occurs',
the following : "the Cabinet Committee".
(3) By inserting in subsection (f) of section 101, after "Budget,",
the following : "the Director of the Office of Science and Technology, ".
(4) By substituting for subsection (g) of section 101 the following:
"(g) The Chairman of the Council on Environmental Quality
(established by Public Law 91-190) shall assist the President in di-
recting the affairs of the Cabinet Committee."
(5) By deleting subsection (c) of section 102.
(6) By substituting for "the Office of Science and Technology", in
section 104, the following: "the Council on Environmental Quality
(established by Public Law 91-190) ".
(7} By substituting for "(hereinafter referred to as the 'Commit-
tee')", in section 201, the following: "(hereinafter referred to as the
'Citizens' Committee')".
(8) By substituting for the term- "the Committee", wherever it
occurs, the following : "the Citizens' Committee".
THB WHITE HOUSE,
March 6, 1970.
[F.R Doc. 70-2861; Filed, Mar. 5, 1970; 2:29 p.m.]
FEDERAL REGISTER, VOL. 35, NO. 46— SATURDAY,
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ATTACHMENT I
EXECUTIVE ORDER 11296
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PRESIDENTIAL DOCUMENTS
TITLE 3--THE PRESIDENT
Executive Order 11296
EVALUATION OF FLOOD HAZARD IN LOCATING FEDERALLY OWNED
OR FINANCED BUILDINGS, ROADS, AND OTHER FACILITIES, AND IN
DISPOSING OF FEDERAL LANDS AND PROPERTIES
WHEREAS uneconomic uses of the Nation's flood plains are
occurring and potential flood losses are increasing despite
substantial efforts to control floods; and
WHEREAS national and regional studies of areas and property
subject to flooding indicate a further increase in flood damage
potential and flood losses, even with continuing investment in
flood protection structures; and
WHEREAS the Federal Government has extensive and continuing
programs for the construction of buildings, roads, and other
facilities and annually disposes of thousands of acres of Federal
lands in flood hazard areas, all of which activities significantly
influence patterns of commercial, residential, and industrial
development; and
WHEREAS the availability of Federal loans and mortgage
insurance and land use planning programs are determining factors
in the utilization of lands:
NOW, THEREFORE, by virtue of the authority vested in me as
President of the United States, it is hereby ordered as follows:
SECTION 1. The heads of the executive agencies shall provide
leadership in encouraging a broad and unified effort to prevent
uneconomic uses and development of the Nation's flood plains and,
in particular, to lessen the risk of flood losses in connection
with Federal lands and installations and federally financed or
supported improvements. Specifically:
(1) All executive agencies directly responsible for the
construction of Federal buildings, structures, roads, or other
facilities shall evaluate flood hazards when planning the location
of new facilities and, as far as practicable, shall preclude the
uneconomic, hazardous, or unnecessary use of flood plains
in connection with such facilities. With respect to existing
Federally owned properties which have suffered flood damage or
which may be subject thereto, the responsible agency head shall
require conspicuous delineation of past and probable flood heights
so as to assist in creating public awareness of and knowledge about
flood hazards. Whenever practical and economically feasible, flood
proofing measures shall be applied to existing facilities in order
to reduce flood damage potential.
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(2) All executive agencies responsible for the administration
of Federal grant, loan, or mortgage insurance programs involving
the construction of buildings, structures, roads, or other
facilities shall evaluate flood hazards in connection with_such
facilities and, in order to minimize the exposure of facilities
to potential flood damage and the need for future Federal
expenditures for flood protection and flood disaster relief, shall,
as far as practicable, preclude the uneconomic, hazardous, or
unnecessary use of flood plains in such connection.
(3) All executive agencies responsible for the disposal of
Federal lands or properties shall evaluate flood hazards in
connection with lands or properties proposed for disposal to
non-Federal public instrumentalities or private interests and,
as may be desirable in order to minimize future Federal expenditures
for flood protection and flood disaster relief and as far as
practicable, shall attach appropriate restrictions with respect
to uses of the lands or properties by the purchaser and his
successors and may withhold such lands or properties from disposal.
In carrying out this paragraph, each executive agency may make
appropriate allowance for any estimated loss in sales price
resulting from the incorporation of use restrictions in the disposal
documents.
(4) All executive agencies responsible for programs which
entail land use planning shall take flood hazards into account
when evaluating plans and shall encourage land use appropriate
to the degree of hazard involved.
SECTION 2. As may be permitted by law, the head of each
executive agency shall issue appropriate rules and regulations
to govern the carrying out of the provisions of Section 1 of this
order by his agency.
SECTION 3. Requests for flood hazard information may be
addressed to the Secretary of the Army or, in the case of lands
lying in the basin of the Tennessee River, to the Tennessee Valley
Authority. The Secretary or the Tennessee Valley Authority shall
provide such information as may be available, including requested
guidance on flood proofing. The Department of Agriculture,
Department of the Interior, Department of Commerce, Department of
Housing and Urban Development, and Office of Emergency Planning,
and any other executive agency which may have information and data
relating to floods shall cooperate with the Secretary of the Army
in providing such information and in developing procedures to
process information requests.
SECTION 4. Any requests for appropriations for Federal
construction of new buildings, structures, roads, or other
facilities transmitted to the Bureau of the Budget by an executive
agency shall be accompanied by a statement by the head of the
agency on the findings of his agency's evaluation and consideration
of flood hazards in the development of such requests.
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SECTION 5. As used in this order, the term "executive agency"
includes any department, establishment, corporation, or other
organizational entity of the executive branch of the Government.
SECTION 6. The executive agencies shall proceed immediately
to develop such procedures, regulations, and information as are
provided for in, or may be necessary to carry out, the provisions
of Sections 1, 2, and 3 of this order. In other respects this
order shall take effect on January 1, 1967.
LYNDON B. JOHNSON
THE WHITE HOUSE,
August 10, 1966.
[F.R. Doc. 66-8838; Filled, Aug. 10, 1966; 12:14 p.m.]
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ATTACHMENT J
NEPA AND THE COURTS
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NEPA AND THE COURTS
In the three years since the National Environmental Policy
Act (NEPA) was enacted, the Federal Courts have been called
upon to enforce its provisions in widely varying factual
situations. The courts decisions have given important
interpretations to many aspects of NEPA. The following is a
representative listing of the court decisions.
UNITED STATES COURTS OF APPEALS
Arlington Coalition v. Volpe, 3 ERC 1995, 2 ELR 20162 (4th
Cir. 4/4/72).The court enjoined construction and acquisition of
right-of-way for Arlington 1-66 pending reconsideration of the
proposed location. The court held that a 102 statement is
required for the project which, although conceived before
January 1, 1970, received design approval on January 21, 1971.
Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109, 2
ERC 1779, 1 ELR. 20346 (D.C. Cir. 7/23/71).The court found the
AEC's rules for implementing NEPA in licensing nuclear power plants
invalid in four respects: (1) the rules failed to require hearing
boards to consider environmental factors unless raised by the
regulatory staff or outside persons; (2) they excluded nonradiological
environmental issues in all cases where the notice of hearing was
published before 3/4/71; (3) they prohibited reconsideration of
water quality impacts where a certification of compliance with
State standards had been'obtained; and (4) they failed to provide
for environmental review of cases in which a construction permit
had been granted prior to NEPA's effective data but the time was
not yet ripe for granting an operating license.
Committee for Nuclear Responsibility v. Seaborg, 3 ERC 1126,
1210, 1256, 1 ELR 20469 (D.C. Cir. 10/5/71, 10/28/71, 11/3/71).
The court reversed a summary judgment for defendants, holding that
plaintiffs had alleged a legally sufficient claim that the AEC's
102 statement on the underground nuclear test Cannikin was
deficient under NEPA. The court later upheld the district judge's
order requiring release of Government documents, which were not
part of the 102 statement, discussing environmental aspects of
the proposed test. However, the court refused to stay the test
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pendente lite. Finally, after release of the documents, the court
refused on national security grounds to delay the test—without
deciding whether NEPA had been satisfied. (The Supreme Court
later upheld this refusal.)
Daly v. Volpe (DC WWash) 4 ERC 1486 (9/15/72). State that
receives federal grants-in-aid for proposed highway construction
must comply with National Environmental Policy Act and failure to
comply with Act subjects state officials to jurisdiction of
federal district court in property owners' suit challenging
highway construction. National Environmental Policy Act is not
satisfied by environmental impact statement that fails to list all
adverse environmental effects of proposed federal-aid highway,
that does not discuss highway's unavoidable harmful effects, that
fails to detail cost of land, construction materials, and labor,
that fails to describe resources irretrievably lost by highway's
construction, and that was considered by Federal Highway
Administration for only one day before receiving agency approval.
State and federal agencies' environmental impact statement
submission that affords insufficient opportunity for public to
comment on environmental impact of proposed federal-aid highway
does not satisfy National Environmental Policy Act, and permits
federal district court to direct state agency to publish, in
newspaper having general circulation in vicinity of challenged
highway segment, notice that includes summary of proposal, map
of proposed highway, discussion of alternative routes, notification
that statement is available for inspection, and assurance that
individual views will be considered; agency, however, is not
required to hold new public hearing on proposal.
Ely v. Velde. 451 F2d 1130, 3 ERC 1280, 1 ERL 20612 (4th Cir.
11/8/71).The court, in reversing a district court decision, held
that the Law Enforcement Assistance Administration must prepare a
102 statement on the portion of a block grant to the State of
Virginia that will be used to construct a prison facility in a
historic area.
Environmental Defense Fund v. Froehlke (CAS) 4 ERC 1829
(1/5/73).National Environmental Policy Act authorizes federal
district court to consider whether Corps of Engineers' decision to
construct Cache River channelization project arbitrarily and
capriciously violated substantive policies of Act, even though
Congress appropriated money for project after corps filed
project's environmental impact statement.
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Greene County Planning Bd. v. FPC, 455 F2d 412, 3 ERC 1595,
2 ELR 20017 (2d Cir. 1/17/72).On a petition to review an FPC
authorization for the Galboa-Leeda transmission line, the court
found the FPC's procedures for implementing NEPA deficient. The
court rules that the FPC staff must itself prepare a draft 102
statement, prior to the public hearing, rather than treating as
the draft statement the environmental report prepared by the
applicant. However, the court refused to disturb the authorizations
for two other transmission lines, despite noncompliance with
NEPA, because the petitioners had failed to object to those
authorizations or to seek court review of them within the time
allowed by statute. Finally, the court declined to require the
FPC or the applicant to pay the expenses incurred by the
petitioners in challenging the authorizations. (The Government's
petition for cert, is pending.)
Lathan v Volpe, 455 F.2d 1111, 3 ERC 1362, 1 ELR 20602 (9th
Cir. 11/15/71).The court held that citizens were entitled to a
preliminary injunction against further acquisition of property by
the State of Washington for Interstate 90. The court found that
defendant's contention that a 102 statement was not required until
the final approval stage was at odds with the Act's concern that
statements be prepared before it is too late to adjust the plans
so as to minimize adverse environmental effects.
National Helium Corp. v. Morton, 455 F. 2d 650, 3 ERC 1129,
1 ELR 20478 (10th Cir. 10/4/71).The court upheld a preliminary
injunction against the Interior Department's cancellation of
contracts to buy helium, on the basis of noncompliance with NEPA.
NRDC v. Morton, 3 ERC 1558, 2 ELR 20029 (D.C. Cir. 1/13/72).
The court affirmed the district court's ruling that the Interior
Department's 102 statement on a proposed sale of leases for oil
and gas extraction on the Outer Continental Shelf was legally
inadequate. The court held that the 102 statement was required to
discuss the environmental effects of reasonable alternative courses
of action, including courses of action not within the authority of
the Department to adopt. The court stressed that the requirement
of discussion of alternatives is subject to a construction of
"reasonableness" and does not "impose unreasonable extremes."
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San Antonio Conservation Society v. Texas Highway Department,
446 F.2d 1013, 2 ERC 1872, 1 ELR 20379 (5th Clr. 8/5/71).The court
stayed construction of a highway through a park in San Antonio, on
the basis of noncompliance with NEPA and other laws. The court
held that the "segments" of the highway adjacent to the park must
be considered together with the park "segment" in the application
of these laws. It further held that, since the highway had been
approved for Federal funding, the State could not defeat the
application of the Federal laws by proceeding without Federal
funds.
Scherr v. Volpe (CA 7) 4 ERC 1435 (8/18/72). Federal-aid
highway project to convert 12-mile two-lane conventional highway
into four-lane freeway that would require right of way acquisition
and that would threaten animal habitat, aesthetic values, and air
and water quality of forest and lake area constitutes major
federal action significantly affecting quality of human
environment under National Environmental Policy Act. State
officials' reports considering proposed federal-aid highway's
environmental effects that were not made public, that were not
prepared in consultation with federal officials, and that were not
indicative of evaluation process required by National Environmental
Policy Act do not satisfy its environmental impact statement
requirement. Federal-aid highway project that did not receive
final federal approval and whose construction did not begin until
after effective date of National Environmental Policy Act is subject
to Act even though project's planning process originated before
Act's effective date.
West Virginia Highlands Conservancy v. Island Creek Coal Co.,
441 F.2d 232, 2 ERC 1422, 1 ELR 20160 (4th Cir. 4/6/71).The
court upheld the standing of a citizen group under NEPA and the
Wildnerness Act to challenge the Forest Service's permission of
private timber cutting and road construction in Monongahela National
Forest. The citizen group charged that a 102 statement should have
been prepared, and that the area was protected by the Wilderness
Act until studied for wilderness character. Without deciding
these claims, the court found them sufficiently strong to justify
a preliminary injunction pending further proceedings in the
district court.
Wilderness Society v. Morton, 4 ERC 1101 (D.C. Cir. 5/11/72).
The court of appeals, reversing a district court, permitted
intervention by a Canadian environmental group in this suit
testing the Secretary of Interior's compliance with NEPA in
connection with the Trans-Alaska pipeline.
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Zabel v. Tabb, 430 F.2d 199, 1 ERC 1449, 1 ELR 20023 (5th
Cir. 7/16/70), cert, denied, 401 U.S. 910 (2/22/71). The court
held that the Army Corps of Engineers has authority to deny a
dredge-and-fill permit under 33 U.S.C. 403 on ecological
grounds, basing its holding in part on NEPA.
UNITED STATES DISTRICT COURTS
Berkson v. Morton, 3 ERC 1121 (D. Md. 10/1/71). The court
issued a 10-day temporary restraining order against construction
in the C&O Canal National Historic Park without compliance
with NEPA and other Federal statutes. This order has subsequently
been extended.
Brooks v. Volpe (DC W Wash) 4 ERC 1532 (9/29/72). Submission
of environmental impact statement that relies solely on general,
nondetailed observations unsupported by factual data showing
proposed federal-aid highway's environmental effect, and failure
of state and federal agencies to give adequate public notice of
statement's existence violate requirements of National
Environmental Policy Act. Showing by state and federal highway
officials that they have made good faith effort to comply with
National Environmental Policy Act and Department of Transportation
Act of 1966, that work on three highway contracts already let is
from 31 to 95 percent complete, that enjoining further work on all
contracts already let would not prevent environmental damage but
would cause erosion and other harmful effects, and that severe
public injury in form of loss of money and jobs would result from
work stoppage warrants denial of injunction barring further work
on contract's already let, even though project's environmental
impact statement was inadequate; officials, however, may not
enter into any new contracts for project until they have fully
complied with statutes.
Committee to Stop Route 7 v. Volpe (DC Conn) 4 ERC 1329
(7/28/72).Federal officials' failure to prepare environmental
impact statement regarding construction of federal-aid highway
for which final design approval was not obtained until after
effective date of National Environmental Policy Act entitles
residents of affected area to injunction barring construction.
National Environmental Policy Act requires impact statements to
reflect agency consideration of all possible alternatives to
federal-aid highway, including whether to construction highway at
all, and requirement is not satisfied by impact statements issued
separately for each individual project segment of proposed highway.
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Conservation Council v. Froehlke, 340 F. Supp. 222, 3 ERC
1687, 2 ELR 20155 (M.D.N.C. 2/14/72). The court denied a
preliminary injunction against the Corps of Engineers' construction
of the New Hope Dam in North Carolina. The court found the 102
statement prepared by the Corps to have met the burden of full
disclosure because, among other things, it included the depositions
of plaintiffs' expert witnesses. The court found that failure
of the statement to consider the effects of two future nuclear
power plants and a proposed interstate highway was not fatal
because the planning for these projects began after the planning
for the dam was underway. The court held that, although the
evidence in the case cast doubt on the wisdom of the project,
NEPA did not authorize the court to decide that question.
(Affirmed, 4 ERC 1044 (4th Cir. 5/2/72)).
Conservation Society v. Volpe, 4 ERC 1226 (D. Vt. 6/2/72).
In a suit challenging Federal funding for segments of U.S. Route
7 in southern Vermont, the court held that NEPA is applicable
to ongoing projects that were not past the "crucial stage"
before January 1, 1970. Relying on the CEQ guidelines, the court
held that 102 statements are required for segments of Route 7 for
which bids had not been invited when NEPA became effective, even
though DOT had given design approval before that date. The court
granted a permanent injunction against work on those segments
until statements are prepared. It held that 102 statements are
not required for segments that were already out for bids on
January 1, 1970.
Daly v. Volpe, 326 F. Supp. 868, 2 ERC 1506, 1 ELR 20242
(E.D. Wash. 4/9/71). Local residents sought an injunction against
construction of an interstate highway segment near North Bend,
Washington, asserting that the Department of Transportation had
not complied with the requirements of NEPA. The segment, on
which planning and hearings had begun before enactment of NEPA,
was Approved on November 30, 1970. At that time a draft
environmental statement had been prepared, but agency comments
were not received or a final statement prepared until after the
approval. The court held that the Department of Transportation
had substantially complied with NEPA in approving the segment,
since the plans had been coordinated with many groups before
approval, and agency procedures for formal circulation of draft
environmental statements were still being developed.
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Environmental Defense Fund v. Corps of Engineers, 325 F.
Supp. 749, 2 ERC 1260, 1 ELR 20130 (E.D. Ark. 2/19/71), 4 ERC
1097. (E.D. Ark. 5/5/72). Plaintiff environmental groups sued
to enjoin further construction of the Gillham Dam, on which the
Corps has prepared an environmental statement under section
102(2)(C). The court upheld plaintiffs' standing and held that
NEPA was applicable even though the project was partially
constructed prior to January 1, 1970. On the merits, the court
rejected plaintiffs' argument that section 101 creates an
enforceable duty not to undertake environmentally damaging
projects. However, it found the environmental statement legally
inadequate and enjoined further construction until the Corps has
complied with sections 102(2)(A), (B), (C), (D) of NEPA. In a
later opinion, the court vacated the injunction because an
amended 102 statement submitted by the Corps of Engineers met the
full disclosure requirements of NEPA. The court found that
although the amended 102 statement was not as fair and impartial
and objective as if it had been compiled by a disinterested third
person, it did present a record upon which a decision-maker could
arrive at an informed decision.
Environmental Defense Fund v. Corps of Engineers, 324 F.
Supp. 878, 2 ERC 1173, 1797, 1 ELR 20079, 20366 (D. D.C. 1/27/71
7/27/71). The court granted a preliminary injunction against
further construction of the Cross-Florida Barge Canal. The
court held that a 102 statement was required for further actions
even though the project was begun before January 1, 1970. The
case was later consolidated with others involving the canal and
transferred to M.D. Fla. for pretrial proceedings.
Environmental Defense Fund v. Corps of Engineers, 331 F.
Supp. 925, 3 ERC 1085, 1 ELR 20466 (D. D.C. 9/21/71). The court
granted a preliminary injunction against construction of the
Tennessee-Tombigbee Waterway. It ruled that the plaintiffs had
made a sufficient showing of noncompliance with NEPA to warrant
an injunction pending trial. The case has since been
transferred to the N.D. Mississippi, without opinion.
Environmental Defense Fund v. Hardin, 325 F. Supp. 1401, 2
ERC 1424, 1 ELR 20207 (D.C. 4/14/71).Th~e court ruled that the
Department of Agriculture's fire ant control program, involving
dissemination of the pesticide Mi rex, was a major action
requiring an environmental statement under Section 102(2)(C) of
NEPA. However, it refused a preliminary injunction against the
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program, on the ground that the Department had performed adequate
studies of the program's environmental effects and had prepared an
environmental statement discussing those effects in sufficient
detail to satisfy all procedural requirements of Section 102(2)(C)
Environmental Defense Fund v. TVA, 339 F. Supp. 806, 3 ERC
1553, 2 ELR 20044 (E.D. Tenn. 1/11/72). The court granted a
preliminary injunction against further work on the Tellico Dam
project, because TVA had not yet filed a final 102 statement.
TVA had filed a draft statement, but claimed that a statement
was not required since construction had begun prior to enactment
of NEPA. The court held that a statement was required because
major portions of the construction remained and TVA was continuing
to seek annual appropriations for the project.
Goose Hollow Foothills League y: Romney, 334 F. Supp. 877,
3 ERC 1087, 1 ELR 20492 (D. Ore. 9/9/71).The court enjoined
construction of a Federally assisted college high-rise housing
project for failure to prepare a 102 statement. However, the
court stayed its injunction for 90 days to permit the filing of
the statement. The injunction was made effective on 12/8/71,
3 ERC 1457.
Harrisburg Coalition Against Ruining the Environment y. Volpe,
330 F.Supp. 918, 2 ERC 1671, 1 ELR 20237 (M.D. Pa. 5/12/71).fna
suit to enjoin construction of Interstate 81 through a park, the
court found that the Secretary of Transportation had not made the
findings required by Section 4(f) of the DOT Act. The case was
remanded for new findings by the Secretary and for preparation of
a 102 statement in accordance with the CEQ guidelines.
Izaak Walton League v. Schlesinger, 337 F.Supp. 287, 3 ERC
1453, 2 ELR 20039 (D. D.C. 12/17/71). The court granted a
preliminary injunction against the AEC's issuance of a partial
operating license for the Quad Cities nuclear reactor pending
completion of the NEPA review of the application for a full
operating license. The court held that the partial license was
itself a major action requiring a 102 statement. However, the
court refused to consider the plaintiffs' claim that the AEC
should have prepared a 102 statement on its rules implementing
NEPA, holding that that question could be reviewed only in a U.S.
court of appeals. The AEC appealed the decision. The appeal has
been mooted by an out of court settlement between the plaintiffs
and the applicant.
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Izaak Walton League v. St. Clair, 313 F.Supp. 1312, 1 ERC
1401 (D. Minn. 6/1/70).The court denied the Government's
motion to dismiss a suit brought to invalidate private mineral
claims in the Boundary Waters Canoe Area (a Wilderness Area).
The court upheld the plaintiff's standing to sue and ruled that
the suit was not barred by sovereign immunity.
Kalur v. Resor, 335 F.Supp. 1, 3 ERC 1458, 1 ELR 20637 (D.
D.C. 12/21/71). TrT an action to review the Corps of Engineers'
regulations governing the Refuse Act permit program, the court
found the regulations invalid in two respects: (1) the regulations
permitted the issuance of permits for discharges into non-navigable
waters; and (2) they failed to require 102 statements for the
issuance of permits. The court enjoined further issuance of
permits under the program. The decision has been appealed.
LaRaza Unida v. Volpe. 337 F.Supp. 221, 3 ERC 1306, 1 ELR
20542 (N.D. Cal. 11/8/71). The court granted a preliminary
injunction against construction or property acquisition for a
Federally assisted highway in Alameda County. The court based
its order on violations of other Federal statutes, leaving a
claimed violation of NEPA for consideration at trial.
Lathan v. Volpe (DC Wash) 4 ERC 1487 (9/15/72). National
Environmental Policy Act is not satisfied by state transportation
agency's environmental impact statement that neglects to consider
proposed federal-aid highway's effects on land use and population
distribution in surrounding metropolitan area, that inadequately
discusses proposed highway's effect on congestion on other roads,
that inadequately discusses extent of damage that will occur to
homes located above tunnels dug for highway, that fails to compare
in detail costs and benefits of alternatives to highway, that
fails to identify method of containing possible oil spills on
floating bridge section of highway, that contains no scientific
data to reinforce its conclusions on noise pollution, and that
inadequately describes effects of air pollution on residents of
highway corridor. Department of Transportation's statement
issued under Section 4(f) of Department of Transportation Act of
1966 that employs deficient environmental impact statement as
basis for approving use of local park land for federal-aid
highway does not satisfy requirements of Act.
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Minnesota Citizens Association v. AEC (DC Minn) 4 ERC 1876
(1/19/73).Atomic Energy Commission's issuance of operating
permits for two Minnesota ruclear generating plants requires
preparation of National Environmental Policy Act environmental
impact statements even though construction permits were issued
and construction began before effective date of Act.
Morningside-Lenox Park Assn. v. Volpe, 334 F. Supp. 132,
3 ERC 1327, 1 ELR 20629 (N.D. Ga. 11/12/71). The court preliminarily
enjoined further work on Interstate 485 in Atlanta, holding that
a 102 statement was required for further actions even though
location approval was given before January 1, 1970.
National Forest Preservation Group v. Volpe (DC Mont) 4 ERC
1836 (1/5/73).Federal Highway Administration's review and
approval of federal-aid highway's National Environmental Policy
Act environmental impact statement that was initially prepared by
state highway agency does not violate Act.
National Helium Corp. v. Morton, 326 F.Supp. 151, 2 ERC 1372,
1 ELR 20157 (D. Kan. 3/27/71).The~court held that the Secretary
of the Interior's cancellation of contracts for Federal purchase
of helium constituted a "major action" requiring an environmental
impact statement under Section 102(2)(C) of NEPA, and that the
contractor had standing to seek compliance with this requirement.
The court issued a preliminary injunction against termination of
the contracts until the Secretary complied with NEPA. The
injunction was subsequently affirmed by the 10th Circuit.
Natural Resources Defense Council v. Grant, 3 ERC 1883,
2 ELR 20185 (E.D. N.C. 3/15/72).The court preliminarily enjoined
the Soil Conservation Service from taking any further steps to
authorize, finance, or commence construction or installation of
the Chi cod Creek Watershed Project until a 102 statement is filed.
Despite the fact that the project received congressional approval
in 1966, NEPA is applicable because the project is an ongoing
Federal project on which substantial actions remain to be taken.
In balancing the equities for and against injunctive relief, the
court noted that the cost of preparing the 102 statement is
minute in comparison to the environmental benefits that will
result from it.
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Natural Resources Defense Council v. Morton, 337 F.Supp.
165, 167, 3 ERC 1473, 2 ELR 20028 (D. D.C. 12/16/71, 12/17/71).
The court preliminarily enjoined a proposed sale of leases for
oil and gas extraction on the Outer Continental Shelf off
eastern Louisiana. The court held that a substantial question
had been raised about the legal sufficiency of Interior's 102
statement, particularly in the scope of alternative actions
discussed. The decision was affirmed on appeal.
Natural Resources Defense Council v. Morton, 337 F.Supp.
170, 3 ERC 1623, 2 ELR 20071 (D. D.C. 2/1/72).The court was
asked to dissolve its preliminary injunction against a proposed
sale of leases on the Outer Continental Shelf, on the basis of
an addendum to the Interior Department's 102 statement
supplementing the discussion of alternative courses of action in
the original statement. The court held that the statement as
supplemented did not comply with Section 102(2)(C), because
the addendum had not been circulated to other agencies for
additional comment.
New York City v. United States, 337 F.Supp. 150, 3 ERC 1570
(E.D. N.Y. 1/20/72).A three-judge district court disapproved an
ICC order authorizing a railroad to abandon unprofitable New York
Harbor operations. The court held that a 102 statement was
necessary, since abandonment would probably have adverse
environmental impacts through an increase in the use of trucks.
The case was remanded to the ICC for preparation of a statement.
Nolop v. Volpe, 333 F.Supp. 1364, 3 ERC 1338, 1 ELR 20617
(D. S.D. 11/11/71). The court upheld the standing of minor
students at U.S.D. to sue as a class (through a guardian ad
litem) to prevent construction through the campus of a Federally
funded highway. It granted a preliminary injunction against
further construction until a 102 statement is prepared.
Northside Tenants' Rights Coalition v. Volpe (DC Ewis) 3 ERC
1376 (8/11/72).Evaluation of proposed federal-aid highway's
environmental impact by state officials does not satisfy National
Environmental Policy Act's environmental impact statement
requirement, since NEPA's requirement must be fulfilled by
federal agency, not recipient of federal aid.
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Scherr v. Volpe, 336 F.Supp. 882, 886, 3 ERC 1586, 1588, 2 ELR
20068 (W.D. Wis. 12/7/71, 12/29/71). The court upheld the
standing of the citizen plaintiffs to challenge the construction
of U.S. 16 from Oconomowoc to Pewaukee, Wisconsin, on which the
Department of Transportation had not prepared a 102 statement.
The court granted a preliminary injunction against further
development of the project. On the defendants' motion to suspend
the injunction, the court held that an agency does not have
discretion to determine whether a project requires a 102 statement.
Rather, on a challenge, the court construes the standards "major
action" and "significantly affecting" to environment, and applies
them to the particular project. The court refused to suspend the
injunction.
SCRAP v. U.S. (DC DC) 4 ERC 1312 (7/28/72). Federal court has
jurisdiction in student group's suit for injunctive relief under
National Environmental Policy Act to review Interstate Commerce
Commission's order extending interim 2.5 percent freight surcharge,
since NEPA confers authority to enjoin any federal action taken
in violation of Act's procedural requirements, even if^
jurisdiction to review agency action is otherwise lacking.
Interstate Commerce Commission's order permitting continued
imposition until November 30, 1972, of 2.5 percent surcharge on
all freight shipped by railroad constitutes major federal action
that may have adverse environmental impact, and therefore
necessitates submission under National Environmental Policy Act
of environmental impact statement.
Sierra Club v. Hardin, 325 F.Supp. 99, 2 ERC 1385, 1 ELR
20161 (D. Alaska 3/25/71). The court upheld the standing of
conservation groups to challenge the Forest Service's sale of
timber in Tongass National Forest as violative of NEPA and other
statutes. However, the court found that the Forest Service's
reliance on the report of a panel of conservationists complied
with NEPA "to the fullest extent possible" in view of the
advanced stage of the transaction at the time of NEPA's passage.
It found the claims under other statutes to be barred by laches.
The decision has been appealed.
Sierra Club v. Laird, 1 ELR 20085 (D. Ariz. 6/23/70).
Plaintiff conservation groups sued to enjoin the Corps of Engineers
from proceeding with a channel-clearing project on the Gila River,
which had been authorized prior to January 1, 1970. The court
granted a preliminary injunction on the basis of the Corps'
failure to comply with Section 102(2)(C), Executive Order 11514,
and paragraph 11 of CEQ's Interim Guidelines. The decision has
been appealed.
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Sierra Club v. Mason (DC Conn) 4 ERC 1686 (11/17/72).
Corps of Engineers' New Haven Harbor dredging project that was
planned after effective date of National Environmental Policy
Act requires preparation of environmental impact statement
since it is major federal action significantly affecting the
environment, even though aim of project is to properly maintain
harbor that was constructed before Act's effective date.
Sierra Club v. Morton (DC N Cal) 4 ERC 1561 (10/8/72).
Court of appeals' denial of environmental group's request for
preliminary injunction barring development of commercial
recreational facility in national forest does not prevent either
environmental group or federal district court from proceeding
with trial on merits of group's National Environmental Policy Act
challenge to facility.
Sierra Club v. Sargent, 3 ERC 1905, 2 ELR 20131 (W.D. Wash.
3/16/71).The court held that the Army Corps of Engineers must
prepare a 102 statement on a Refuse Act permit issued to
Atlantic Richfield Co. The court noted that it was not ruling
on the scope of consideration required of the Corps in preparing
the statement.
Texas Committee v. Resor, 1 ELR 20466 (E.D. Tex. 6/29/71).
The court granted a preliminary injunction against work on the
Cooper Dam project until the Corps of Engineers prepared a 102
statement.
Texas Committee v. United States, 1 ERC. 1303 (W.D. Tex 2/5/70)
dismissed as moot, 430 F.2d 1315 (5th dr. 8/25/70). The court
granted a preliminary injunction to prevent Farmers Home
Administration from financing a golf-course project that allegedly
threatened important wildlife habitat. The project had been
approved, but not commenced, before January 1, 1970. The basis
for the injunction was that FHA had not considered the
environmental impact as required by NEPA. The case was dismissed
as moot when the golf course was located elsewhere.
United States v. Brookhaven, 2 ERC 1761, 1 ELR 20377 (E.D.
N.Y. 7/2/71).The court granted a preliminary injunction against
dredging by a municipality in navigable waters without a Corps
of Engineers permit. It held that the Corps, which had issued
a permit in 1967, was not required to grant a subsequent permit,
since the law had changed with the passage of NEPA.
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United States v. Joseph G. Moretti, Inc.. 331 F.Supp. 151,
3 ERC 1052, 1 ELR 20443 (S.D. Fla. 9/2/71j. The court issued an
injunction against further private dredging in Florida Bay
without a Corps of Engineers permit. The injunction also required
restoration of the defendant's past damage to the bay. The
court relied on NEPA to justify considering ecological damage.
United States v. 247.37 Acres. 3 ERC 1099, 1 ELR 20513 (S.D.
Ohio 9/9/71), 3 ERC 1696, 2 ELR 20154 (S.D. Ohio 1/24/71). In a
suit to condemn land for the Corps of Engineers' East Fork
Reservoir project, the court refused to grant summary judgment for
the Government. The court held that failure to comply with NEPA
was a valid defense to the condemnation suit. In a later opinion,
the court refused to lift its ban on condemnation of the land
because the Government had not yet shown full compliance with
NEPA. The court held that the filing of a 102 statement without
showing that public notice was given and without showing whether
or not it was commented on by CEQ was not sufficient to show full
compliance with Section 102(2)(C).
Wilderness Society v. Hickel. 325 F.Supp. 422, 1 ERC 1335,
1 ELR 20042 (D. D.C. 4/28/70). Tn a suit by conservation groups,
the court enjoined the issuance by the Secretary of the Interior
of a permit for a road across Federal lands on the basis, among
others, of the Secretary's failure to prepare a statement under
section 102(2)(C) discussing the environmental impact of both
the road and the related Trans-Alaska Pipeline.
Willamette Heights Neighborhood Assn. v. Volpe, 334 F.Supp.
990, 3 ERC 1520, 2 ELR 20043 (D. Ore. 12/3/71).The court held
that a 102 statement was required for construction of a segment of
Interstate 505 near Portland. Although the Department of Transportation
had indicated "tacit approval" of the location of the segment in
1964, formal location approval was not requested until April 1969
and was not given until after the effective dates of NEPA and the
revised DOT regulations (PPM 20-8) requiring location and design
hearings. The court enjoined work on 1-505 pending compliance
with these provisions, but refused to enjoin completion of exit
ramps approved prior to enactment of NEPA.
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