a
COLLECTION
of LEGAL
OPINIONS
volume I
DECEMBER 1970 - DECEMBER 1973
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of General Counsel
Washington, D.C. 20460
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INTRODUCTION
This collection of Environmental Protection Agency legal opinions from
1971 to 1973 represents the more significant legal opinions which have been
written by our attorneys in the Office of the General Counsel from EPA's
formation in December, 1970, through December 31, 1973. Subsequent
opinions will be released in annual updates.
The Clean Air Act of 1970 launched a comprehensive program to estab-
lish abatement requirements for sources of air pollution around the country.
To implement this Act, EPA was first directed to establish national ambient
air quality standards for various air pollutants. The States were then requir-
ed to prepare plans for the implementation of these air quality standards;
these plans had to be approved, disapproved or modified by EPA. In addition
to the national ambient air standards which establish the control mechanism
of existing sources, the Clean Air Act provides for emission standards
for pollutants emitted by new sources (such as a newly-built power plant
or a cement factory). The Act also set up an accelerated schedule for
the abatement of automobile pollution.
The Federal Water Pollution Control Act (FWPCA) was enacted in order
to "enhance the quality and value of our water resources and to pollution."
The Act requires EPA to regulate the discharge of pollutants from "point
sources" into our nation's waters. Under the Act, no pollutants may be
discharged from point sources, primarily industrial plants, municipal
treatment plants and agricultural feedlots, without a permit containing dis-
charge limitations and clean-up schedules.
Because the primary responsibility for cleaning-up the nation's waters
is left to the States, Congress authorized numerous grants to aid the States
in their pollution abatement efforts. These grants provide assistance to
States for research and development, manpower training, water quality
training and monitoring and enforcement. The major financial thrust of the
Federal effort, though, is directed toward municipalities for the construction
of sewage treatment plants.
In October, 1972, the Federal Pesticide Control Act (FEPCA) was signed
into law. This Act amended the provisions of the Federal Insecticide, Fungi-
cide and Rodenticide Act of 1947 (FEPCA), which was essentially a labelling
scheme focusing its attention primarily on the licensing of pesticide products
intended for interstate shipment. FEPCA requires the registration of any
pesticide with EPA and prohibits the distribution, sale, shipment, delivery
or receipt of an unregistered pesticide.
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Our lawyers in the General Counsel's Office have the challenging and
exciting job of interpreting these statutes, which form the major basis of
EPA's statutory authority. The Office of the General Counsel is still
small by government standards. It was built gradually by the cautious
selection among the hundreds of applicants attracted to this new Agency
with its new challenge. I think it safe to say that our lawyers have won
the respect of our "clients" - the program offices - and of the public.
I believe the caliber of the opinions which follow demonstrates that these
lawyers skillfully handled difficult and varied questions of law -- often
under severe time pressures -- and that the respect they enjoy is well
deserved.
Alan G. Kirk II
Assistant Administrator for
Enforcement and General Counsel
ii
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HEADQUARTERS GENERAL COUNSEL STAFF
Assistant Administrator for Enforcement Alan G. Kirk II
and General Counsel #
Christopher Smith*
Frank J. Sizemore III
Deputy General Counsel Robert V. Zener
Associate General Counsel for Water G. Willian Frick
Thomas Bastow Alan N. Kosloff
Alan W. Eckert Daniel M. Joseph*
Jeffrey H. Howard Thomas H. Truitt*
Ray E. McDevitt Sherwood S. Willard*
Pamela P. Quinn Richard Laster*
James A. Rogers Carol A. Cowgill*
Nancy L. Speck Michael B. Gross*
Robert J. McManus Edward Krause*
Associate General Counsel for Air Quality Michael A. James+
And Radiation
John E. Bonine William F. Pedersen, Jr.
Leslie C. Carothers Richard G. Stoll, Jr.
Richard J. Denney, Jr. Jeffrey H. Schwartz*
Gerald K. Gleason Rodney G. Snow*
Associate General Counsel for Pesticides Anson M. Keller
and Solid Waste Management
Timothy L. Harker William Reukauf
John C. Kolojeski George A. Robertson
Edward W. Lyle Michael C. Farrar*
Anthony Garvin Charles B. Fielding*
Ronald L. McCallum Thomas H. Kemp*
Taylor O. Miller Eileen M. Stein*
Associate General Counsel for Grants, Contracts Joan E. Odell
and General Administration
Anthony G. Beyer Donnell L. Nantkes
Benjamin H. Bochenek Norval D. Settle
Richard C. Boehlert Joseph M. Zorc
Henry K. Gar son Frank G. E. Tucker*
Edward C. Gray
111
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REGIONAL COUNSELS
I Thomas B. Bracken
II Peter B. Devine
III Joseph Manko
IV Orin G. Briggs
V Harvey Sheldon
VI Thomas P. Harrison
VII John H. Morse
VIII James W. Sanderson
IX Cassandra Dunn
X Theodore R. Rogowski
NOTE: °John R. Quarles, Jr., now EPA's Deputy Administrator, was the
Assistant Administrator for Enforcement and General Counsel from
December, 1970, to April, 1973. During this period, Mr. Alan G. Kirk
served as Deputy General Counsel.
+Robert L. Baum, now Deputy Assistant Administrator for General
Enforcement, was Associate General Counsel for Air Quality and
Radiation
*No longer with the Agency
IV
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CONTENTS PAGE
INTRODUCTION i
HEADQUARTERS GENERAL COUNSEL STAFF iii
REGIONAL COUNSELS iv
SECTION
I. AIR 1
A. IMPLEMENTATION PLANS 1
1. Section 110 of the Clean Air Act -- Implementation Plans 1
a. Implementation of Section 110 «, 1
b. EPA Options 5
c. Approval of State Implementation Plans 9
d. Submissions to EPA of Alterations and Changes in the
Implementation Plans 11
e. Status of Existing Regulations in State Implementation Plans.. 12
f. Pre-construction Review Authority Required
for Implementation Plans 14
g. Time Period for Attainment of the National Standards 16
h. Variance and Compliance Schedules 16
i. Postponement of an Implementation Plan ._ J.8
j. Extension of Compliance Dates for Individual Sources
Beyond Attainment Dates. 20
k. Necessity of Public Hearings on Compliance Schedules 25
1. One-Year Postponement Under §110(f) 28
m. Number of Postponements Which May be Granted Pursant
to Section 110 (f) of the Clean Air Act 43
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2. Transportation Control Plans 45
a. Transportation Control Plans 45
b. Legal Authority to Promulgate and Enforce
Transportation Controls 50
c. Legal Authority to Require State and Local Officials to
Submit Compliance Schedules for Transportation Controls.... 68
d. EPA Brief in Suits Challenging Disapproval
of Implementation Plans 70
B. STATIONARY SOURCES 77
1. Section 111 of the Clean Air Act -- Standards
of Performance for New Stationary SourcesT 77
a. Nondegradation - - Federal Authority 77
b. Applicability of New Source Performance
Standards to Source Modifications 80
c. Resumption of Operations by Sources, 82
d. New Source Performance Standards for
Asphalt Batch Plants 83
e. Applicability of New Source Standards to Asphalt Plants 84
f. Authority to Proscribe Processes 85
g. Delegation of Authority 88
h. Standards upon which State Emission Standards
Must be Based 93
i. Federal Performance and Hazardous Emission Standards
- -State Enforcement 96
2. Section 112 of the Clean Air Act -- National
Emission Standards for Hazardous Pollutants 98
a. EPA's Authority to Establish an Ambient
Concentration Standard 98
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3. Section 113 of the Clean Air Act -Federal Enforcement 101
a. Enforcement Orders 101
b. Enforcement of Short-Term Violations of
Implementation Plans 107
c. Employment of Enforcement Procedures in Concert with
National Hearing on Feasibility of Sulfur Oxides Control
Technology for Coal Fired Electric Power Plants 109
4. Section 114 of the Clean Air Act --
Inspections, Monitoring and Entry. 127
a. Requirements Under Section 114 127
b. Fifth Amendment Limitations on Use of Section 114 128
c. Delegation of Authority to Make Emission Data Public 136
d. Monitoring of Ambient Air 137
e. Ambient Air Quality Monitoring by EPA 141
C. MOBILE SOURCES 143
1. New or Restored Engines in Old or Restored
Vehicles (Section 213) 143
2. Replacement Engines for Installation in Vehicles of Prior
Model Years 145
3. Emission Control Systems. 146
a. Modification of Emission Control Systems or
Devices (Section 203) 146
b. Lead Emissions from Motor Vehicle Exhaust
(Sections 202, 211, 110) 148
c. Trade Secret Information and Suspensions of
the 1975 Auto Emission Standards (Section 202(b)(5) 149
d. Warranty Repairs on Emission Control Systems
(Section 207) 151
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e. Replacement of Catalytic Converters (Section 206(a) 153
f. Sulfuric Acid Particle Emissions from Vehicles
Equipped with Platinum Catalysts 155
3. Shipment of Uncertified Vehicles 158
4. Authority to Compel Auto Manufacturers to Conduct Tests 161
5. Requiring Manfacturers To Submit Developmental Vehicles
for Testing 166
6. Certification of Three-Quarter Engines. 167
7. Heavy-Duty Engines 169
a. Standard Setting for "Low-Emission Vehicles
with Heavy-Duty Engines (Section 212) 169
b. Information Requirements -- Heavy-Duty
Engine Manufacturers (Section 208) 174
8. Warranties and Maintenance Under Section 207 175
9. Approval of Maintenance Instructions as Prequisite to Sale 181
10. Section 207 of the Clean Air Act and Related Provisions 182
11. Certificate of Conformity -- Section 206 191
a. Duration of Certificate of Conformity 191
b. Certification of Vehicles for Sale at High Altitudes 194
12. Availability of Lead-Free Gasoline to Independent
Retail Marketers 197
13. Exportation of Vehicles to Canada (Section 203) 199
14. Tampering « 201
15. Tampering Violations under §203(a)(3) of the Clean Air Act.... 209
D. COMPLEX SOURCES 212
1. Complex Sources * • 212
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E. AIRCRAFT 216
1. Applicability of Clean Air Act and Executive Order
11507 to Publicly-Owned Aircraft 216
2. Administrators's Certification: Airport and Airways Act 219
F. FUEL AND FUEL ADDITIVES 222
1. Authority to Regulate Fuels and Fuel Additives 222
2. Registration and Regulation of Fuels and Fuel Additives...... 223
3. Regulation of Lead as a Fuel Additive 229
4. Regulation of Lead and Phosphorus Content of Gasolines 232
5. Reproposal of Proposed Lead Regulations 236
6. Preemption of Municipal Lead Additive Controls
Under The Clean Air Act 239
G. EMERGENCY ACTION 244
1. Emergency Authority (Section 303) 244
2. Definition of "Imminent Endangerment" (Section 112). 246
H. AIR: GENERAL 248
1. Information Gathering Under the Clean Air Act --
Necessity for OMB Clearance 248
2. Payment of Costs Awarded to Successful Litigants
Under the Clean Air Act 250
II. NOISE. 253
A. NOISE CONTROL ACT OF 1972 253
1. EPA Enforcement Responsibilities 253
2. Definition of "Best Available Technology 256
3. Authority of EPA under Section 4(c) (Authority Administrator
to Coordinate and Review Federal Regulations Relating to
Both Environmental and Occupational Noise 260
4. Health and Welfare Criteria for Section 18 263*
5. Pre-emption 265
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III. RADIATION 275
A. ENVIRONMENTAL RADIATION - 275
1. Definition of "Generally Applicable Environmental
Radiation Standards" 275
IV. WATER. ;..... 276
A. FEDERAL WATER, POLLUTION CONTROL ACT
AMENDMENTS OF 1972 276
1. Interpretation of the Federal Water Pollution Control
Act Amendment 276
2. Technical Comments on S. 2770 278
3. Meaning of the Term "Navigable Waters" 295
4. Meaning of Best Practicable Waste Treatment Technology 296
'B. NATIONAL POLLUTION DISCHARGE ELIMINATION SYSTEM
(PERMIT PROGRAM SECTION 402). 302
1. The Statutory Background and Legislative History. 302
2. Permit Program Under Section 402 316
3. Policy Guidance. 318
a. Application of the Fish and Wildlife Coordination
Act to the Issuance of Permits 318
b. Changes in Effluent Limitations or Water Quality Standards
--Do They Constitute a Change in Permitted Discharge.... 320
c. Increase in Production and NPDES Permits. 321
4. State Permit Programs 324
a. Division of Authority 326
b. May State Permit Programs Continue to be
Operated Without an Approved Program 327
c. Regulations Which Must be Promulgated Prior to Submission
of Attorney General's Statement in Connection with Approval
of State NPDES Programs 329
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d. State Permit Program Authorities -- Civil and
Criminal Penalties 330
e. Federal vs. State Water Permits. 332
f. Ability of States to Enforce Federally Issued NPDES
Permits 333
g. Extent of EPA Approval of State Issued NPDES Permits 334
h. Conflict of Interest 337
5. Effluent Guidelines 342
a. Authority for EPA to Issue Discharge Permits Prior
to Publication of Effluent Guidelines under Section 304 342
b. Revision of Permits Upon later Issuance of
Guidelines for Effluent Limitations under §304 343
c. Effluent Limitations to be Applied to Industrial Dischargers
Now Applying Better Treatment than Effluent Guidelines
Require 345
d. Must Effluent Guidelines Establish a Range 346
e. Section 316 350
6. Scope of Permitting Authority. 351
a. FWPCA, Section 306(d) - 10 Year Grace Period 351
b. Applicability of Permit Program to Storm Sewers 352
c. Authority to Exclude Point Source from Permit
Program 354
7. Public Access to Information 357
a. Comparability of Public Participation and Information
Procedures in Permit Program and Under NEPA 357
b. Confidentiality of Effluent Data 360
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c- WATER QUALITY STANDARDS. 362
1. Disapproval of Overly Stringent State Standards 362
2. Issuance of Discharge Permits Based upon Proposed
Water Quality Standards 363
3. Objections of a Downstream State under Section 401(a) 364
4. Enforcement of Water Quality Standard 365
5. Revision of Applicable Water Quality Standards 367
6. Revision of Water Quality Standards 369
D. DRINKING WATER STANDARDS. 372
1. Legal Review of Task Force Report 372
2. Legal Review of Task Force Report--Drinking Water Standards.. 373
E. OIL AND HAZARDOUS SUBSTANCES 380
1. Outer Continental Shelf; Applicability of FWPCA 380
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2. Control of Oil Pollution 382
a. State May Impose its own Sanctions Against Discharge
of Oil into Waters Situated within its State 382
b. Control of Pollution from Offshore Facilities 383
3. Oil Sheen and Equipment Regulations 388
4. Oil Removal Authority. , 390
F. OCEAN DUMPING AND MARINE SEWAGE .. 391
1. Request for Ocean Dumping Permit 391
2. EPA Jurisdiction with Respect to Floating Nuclear
Power Plants 392
G. VESSEL WASTE 394
1. Vessel Sewage Regulations Under the FWPCA. * 394
a. Federal Pre-emption of Marine Sanitation
Device Standards • 394
b. Effective Date of No-Discharge Regulations.., 395
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c. The size of No-Discharge Areas 397
d. Definition of Navigable Waters 400
2. Vessel Sewage Regulations Under FWPCA, Amended 408
a. No-Discharge Exemption from the Federal
Vessel Sewage Standard under Section 312(f)(3) 408
b. Interpretation of Section 312 -- Vessel Sewage
Regulations 409
H. THE REFUSE ACT'S PERMIT PROGRAM. 411
1. Proposed Corps Regulations Concerning Permit
Program Hearings. 411
2. Army Corps of Engineer's Proposed Regulations Governing
Permit Program Hearings Where a Downstream State has
Objected Pursuant to Section 21 (b)(2) and(4) of FWPCA 415
3. Confidentiality Clause in Permit Program Application Form 417
4. Legal Basis for Effluent Guidelines 419
5. Legal Requirements Necessary to Obtain Abatement of
Pollution Under Section 10(c)(5), FWPCA 422
6. Effluent Guidelines and the Permit Program 424
7. Effluent Guidelines -- Suggested Amendment to Preamble 425
I. ENFORCEMENT CONFERENCES 429
1. Enforce ability of Recommendations of the
Administrator of EPA following an Enforce-
ment Conference Authorized under Section 10, FWPCA 429
V. PESTICIDES 431
A. OPINIONS BASED ON FEDERAL ENVIRONMENTAL PESTICIDE
CONTROL ACT (1972J (FEPCA) 431
1. Implementation of FEPCA ~. 431
2. Authority to Regulate Advertising of Pesticide Products 439
3. Experimental Use Permits 444
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4. Must a Request for an Advisory Committee be Automatically
Granted in Pending Cancellation Proceedings 445
B. OPINIONS BASED ON FEDERAL INSECTICIDE, FUNGICIDE,
AND RODENTlClDE ACT 448
1. Advisory Committee's Release of Submission Transcripts 448
2. Section 14(a) of FIFRA and Abbreviated Hearing 449
3. Must EPA Require a Foreign Registrant to
Designate a Domestic Agent 451
4. DDT Administration Litigation 452
C. PESTICIDE ACCIDENT SURVEILLANCE SYSTEM 454
1. Implementation of the Pesticide Accident Surveillance System... 454
VI. GRANTS AND CONTRACTS 462
A. CONSTRUCTION GRANTS 462
1. Federal Water Pollution Control Act Funds 462
a. Disaster Relief 462
2. Title II Construction Grant Funding 465
a. Appropriations in Title II Construction Grant Program 465
b. Funding for Projects under Section 208(f) 467
3. Sewage Treatment Works Construction Funds Under
FWPC A, Amended 470
a. Availability of Sewage Treatment Works
Construction Funds 470
b. Allotment of Funds for Construction of
Sewage Treatment Works 472
c. Availability of Unallotted Portions of Construction Grants
Contract Authority for FY 1973l and 1974 475
d. Use by Minnesota of^Unexpended FY 1972 Program Grant
Funds 476
e. Funding Under Delaware's "Phased'^System..... 478
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f. Funding Under Delaware's Phased Grant System 479
g. Advanced Construction Grant Authority
Pursuant to Section 206(f) 485
h. Industrial Waste Construction Cost Recovery 486
4. Great Lakes Area Treatment Works Projects 488
5. Use of Revenue Sharing Funds for Waste Treatment
Projects 492
B. SOLID WASTE GRANTS 494
1. Grants to States under the Solid Waste Disposal Act,
as Amended 494
2. Solid Waste Disposal Act-- Granted Support for Site Surveys.. 495
C. AIR GRANTS. 497
^~~~^^^^^^^^^^^~ f
\,
1. Use of Local Funds on Air Pollution Control Program
Grants 497
2. Consolidation of Air Program Grants within a State. 500
D. GRANTS; OTHER 503
1. Legal Review of EPA Contracts and Grants 503
2. Use of Other Federal Grant Funds to Meet EPA
Matching Requirements 504
E. CONTRACTS. 508
1. Authority to Contract for Paid Advertising 508
2. Proposed Contracts for Obtaining an Advertising Campaign... 509
3. Contracts for Dissemination of Information
or Encouragement of Citizen Action. ._.. 512
4. Patent Rights Clause (What Rights are Retained by
Government and its Contracted Company in the
Course a Proposed EPA Contract with the Company 515
VH. OPINIONS AFFECTING THE GENERAL ADMINISTRATION OF EPA. 520
A. AGENCY MANAGEMENT AND PERSONNEL. 520
1. Reimbursement of Personnel Travel Expenses 520
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a. Reimbursement of Travel Expense from
Non-Federal Sources 520
b. Legality of International Organizations or Foreign
Countries Paying EPA Employee's Expenses 521
2. Payment of EPA Employees' Travel Expenses
by the Federal Republic of Germany 523
3. Visitors' Releases and Hold Harmless Agreements as
a Condition to Entry of EPA Employees on Industrial
Facilities 525
4. EPA Utilization of Foreign Scientists 530
5. Voluntary Services for EPA 534
6. EPA's Use of an Advertising Agency for the
Purpose of Publicizing Polluters 543
B. CIVIL RIGHTS 545
1. Compensation for a Witness at an Agency Hearing 545
VIII. NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) 547
A. APPLICATION OF NEPA TO ACTIVITIES OF EPA 547
1. Application of NEPA to Activities of EPA 547
2. Application of National Environmental Policy Act to Permit
Program--Number of Impact Statements Required 552
3. Section 309 of the Clean Air Act -- Environmental
Impact Review 554
4. NEPA Aspects of the Award and Administration
of EPA State and Local Assistance Grants 557
5. Applicability of NEPA to "Four Corners Project" 567
6. Four Corners-- Application of NEPA to Interiors review
of Air Pollution Control Equipment 569
7. Air Pollution Control Equipment--Four Corners Generation
Station 570
B. ENVIRONMENTAL IMPACT STATEMENTS 572
1. CEQ's Guidelines for Preparation of Environmental
Impact Statements 572
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2. Comments on Draft Environmental Impact Statements --
Legal Consequences of Request for Additional Information .... 574
3. Necessity of Environmental Impact Statement when
Issuing a Discharge Permit to a "New Source" 575
C. NEPA -- SUMMARY OF MAJOR DECISIONS 577
1. Summary of Major Decisions 577
2. Calvert Cliffs Decision 579
3. Environmental Impact of Nuclear Power Plants Relationship
between AEC and EPA 580
IX. THE FREEDOM OF INFORMATION ACT 582
A. RELEASE OF INFORMATION 582
1. Release of Information in Regional Office Files 582
2. Requests for Information from Members of Congress 584
B. TECHNICAL INFORMATION 585
1. Status of Technical Information Provided EPA
by Private Companies 585
C. AUDIT REPORTS. 588
1. Public Availability of Audit Reports 588
D. INTERPRETATION OF THE FREEDOM OF INFORMATION ACT
AND THE FEDERAL ADVISORY COMMITTEE ACT 590
1. Applicability of the Freedom of Information Act and
The Federal Advisory Committee Act to Meetings
of Subcommittees 590
E. CONFIDENTIALITY OF INFORMATION. 593
1. Tapes of Advisory Committee Meetings 593
2. Confidentiality of Trade Secret Information Obtained under
Section 211 ("Regulation of Fuels") of the Clean Air Act 594
3. Confidentiality of Fuel Additive Information 596
4. Confidentiality of Information Obtained Pursuant to S. 210
of the 1967 Clean Air Act --Federal Employees not Concerned
with Carrying Out the Act , 607
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5. Protection of Process Data as Trade Secrets 609
X. TAX AND ANTI-TRUST. 612
A. TAX. 612
1. EPA Guidelines Under I.R.C. Section 169 612
2. Certification of Pollution Control Facilities Eligible for
Accelerated Amortization Under Section 169 of the Internal
Revenue Code 613
3. Eligibility of Solid Waste Compaction Facilities for Rapid
Amortization Under Section 169 of the I. R. C 619
B. ANTI-TRUST. 620
1. Anti-trust Exemption for Pollution Control 620
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SECTION I AIR
IMPLEMENTATION PLANS
SECTION 110 OF THE CLEAN AIR ACT — IMPLEMENTATION PLANS
TITLE: Implementation of Section 110
DATE: April, 30, 1973
MEMORANDUM OF LAW
FACTS
1 '•— r
Your memorandum of February 27, 1973, to Robert Baum raises several
questions involving subjects discussed at the Regional Administrators' meeting
on power plants. All of the questions are concerned with EPA's overseeing
of State implementation plans.
QUESTION # 1
If a State has an approved emission regulation which is more stringent than
necessary to attain the national standards but refuses to enforce its emission
regulation by obtaining compliance schedules from regulated sources, may
EPA reject the State emission regulation and promulgate a less restrictive
measure that provides for the attainment of ambient air quality standards ?
ANSWER # 1 l
Where EPA has approved a State emission regulation as part of an applicable
plan and the State does not enforce the regulation, EPA's responsibility under
the Clean Air Act is to enforce the approved emission limitation and, in so
doing, the Agency must provide for compliance with the,_approved emission
limitation.
DISCUSSION # 1
It is helpful to begin with a general discussion of EPA's authority and respon-
sibility under §§110 and 113 of the Act, since most of the questions raise basic
problems of interpretation of those sections. It is important to recognize
that we are discussing two separate functions, viz approval/promulgation and
enforcement.
EPA's authority to promulgate implementation plan regulations stems from
the disapproval of regulations submitted by the State, or by the failure of the
State to submit necessary regulations. If State regulations are approved by
EPA, the Agency has no authority to promulgate different regulations. Under
the law, EPA must approve regulations which are more stringent than those
needed to meet the national standards. Once these regulations are approved,
there is no authority to promulgate less stringent regulations. This is true
even if a State fails to enforce these regulations.
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With regard to the second function raised by the questions, i.e., enforce-
ment, EPA is given clear authority to enforce approved implementation plans
or plans promulgated by the Administrator. As we have previously pointed
out, under §110(d), for purposes of the Clean Air 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. " The words "applicable implementation plan" are in this
case, words of art. Section 113 authorizes Federal enforcement of an "appli-
cable implementation plan." Accordingly, it is clear that it is only approved
or promulgated plans which EPA may enforce.
As you know, the submission by a State with regard to regulations and com-
pliance schedules is really two separate submissions. On one hand, EPA
evaluates the emission limitations to make certain that they are sufficient to
achieve the national standards. If the degree of reduction is sufficient, that
emission standard is approved. Many State plans contain provisions by which
they are required to procure a compliance schedule subsequent to the adoption
and submission of the emission standard. Failure to obtain the compliance
schedules in no way affects the validity of the approved emission regulations.
Accordingly, EPA does not have authority to promulgate a different emission
regulation. What is left to EPA is the authority to procure compliance
schedules which meet the applicable implementation plan, in this case, the
emission limitations submitted by the State and approved by EPA.
QUESTION #2
When imposing Federal compliance schedules or approving State compliance
schedules for sources subject to approved State emission regulations which are
more stringent than necessary to attain the national standards, must EPA
require compliance with the approved regulation or may it impose or approve
instead whatever less stringent requirements are necessary to achieve the
national standards?
ANSWER #2
Unless the State revises its approved regulation and obtains EPA approval of
that revision, both the State and EPA are bound by the approved regulation when
obtaining or approving compliance schedules.
DISCUSSION #2
The premise of your second question is that the State has submitted emission
limitations which are more stringent than necessary to achieve the national
ambient air quality standards. The issue is whether if a State submits a com-
pliance schedule or we have to procure one, can we accept or procure one
which will achieve the standards or must we acceptor procure one which meets
the State emission regulations. This situation is similar to the first one dis-
cussed above. The applicable plan contains an emission limitation which is the
only guide for the preparation and approval of compliance schedules. Quite
aside from the requirements of §110, a different answer would put EPA in the
position of approving or trying to secure a compliance schedule to meet an
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emission limitation which does not exist, except in EPA files. More speci-
fically, even if it were possible to try to adopt or procure compliance schedules
to meet some number less stringent than that approved in the plan, exactly
what that number would be in each case would be subject to question and liti-
gation. We should point out that if the State has in fact adopted emission limi-
tations which are more stringent than necessary to meet the national standards,
they can submit a plan revision with more lenient requirements if they still
conform with the requirements of the Act.
QUESTION #3
Is a change in control strategy by a State (e.g. from a firm emission limi-
tation to a system of intermittent control, tall stacks, and/or some other
measures) to be considered a plan revision?
ANSWER #3
Yes. This action would constitute a substantive modification of the regulatory
scheme which carries out the control strategy to provide for attainment and
maintenance of the national standards.
DISCUSSION #3
The change in question would involve the regulatory requirements applicable
to a source or class of sources. Emission limitation requirements are the
most critical parts of any plan and are specifically required to be included
in the plan by §110(a)(2)(B) of the Act. It is axiomatic that a substantive
modification of such requirements must be considered a plan revision.
QUESTION #4
May States revise an approved plan requirement because of the difficulty or
impossibility of sources meeting that requirement? Where a State makes
such a determination, may it now applyfor an extension of the statutory attain-
ment date for the national standards ?
ANSWER #4
A State may revise an implementation plan requirement in the situation de-
scribed, if the plan as modified will still provide for the attainment of the
relevant national standards within the attainment date set forth in the plan
approval. If the revision to a plan requirement would necessitate postponing
the date specified for attainment of national standards, a revision for that
purpose is also possible under the Act so long as the date is as expeditious as
practicable and does not extend beyond mid-1975. Either type of revision
would have to be approved by EPA.
DISCUSSION #4
Where the State, in negotiating compliance schedule with individual sources,
determines that compliance with the approved emission regulation by a source
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or sources will be difficult or impossible by the prescribed compliance date,
it may revise its plan with respect to that source or sources. A source may
be granted a variance from the initially-applicable compliance date if com-
pliance is required to be as expeditious as practicable (40 CFR 51.15(b)> and
the compliance date does not extend past the prescribed attainment date for
the national standards. Any extension of compliance past that date would
require a postponement under §110(f) of the Act (40 CFR 51. 32(f)).
Alternatively, the State may reassess the control strategy and choose to
revise its emission regulations to reflect the non-availability of technology
or other control measures (e.g. low sulfur fuels), if the revised regulations
will still provide for attainment of the national standard within the prescribed
attainment date. The State may also set back the attainment date for a national
standard if the new date is no later than mid-1975 and the plan demonstrates
that the new date represents attaining the national standard as expeditiously
as practicable.
QUESTION #5
May EPA approve implementation plan provisions which utilize stack height
requirements for emission dispersion in lieu of measures requiring limi-
tation of emissions?
ANSWER #5
As noted in your memorandum, this question is now being considered by the
Court in the National Resources Defense Council suit challenging EPA's ap-
proval of the Georgia plan, and we feel it is appropriate for us to defer any
action on the question until the Court makes a decision.
DISCUSSION #5
As you may be aware, a briefing package on the stack height limitation issue
is being prepared for the Administrator's consideration.
QUESTION #6
Does the Act allow a State to revise a plan by adopting emission regulations
adequate to attain the national standards but less stringent than those approved
by EPA or to rescind emission regulations resulting from a reclassification
of a region from Priority I to Priority III ?
ANSWER #6
Yes, provided the State demonstrates to the Administrator's satisfaction that
the less stringent regulations provide for the attainment of the relevant national
standards as expeditiously as practicable, but no later than mid-1975. In the
case of regional reclassification, the Administrator could approve the reciss-
ion based on a determination that the controls are not necessary since the na-
tional standard (NOJ is being attained. Where the standard is being attained
only marginally, however, recission of all NOx controls may threaten main-
tenance of the standard and necessitate the Administrator's disapproval of all
or part of the recission.
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DISCUSSION #6
In our view, §110 did not require States in the preparation of their plans to
make faultless judgments with respect to the practicability of controlling sour-
ces and attaining the national standards. Reassessments and consequent revi-
sions to plans are approvable by the Administrator so long as the revised plan
demonstrates attainment of the national standards as expeditiously as practi-
cable (but no later than mid-1975). As noted in #4 above, in the case of indivi-
dual source compliance schedules (including variances), the source must be
required to comply as expeditiously as practicable (40 CFR 51.15(b)).
The unavailability of low sulfur fuels is an appropriate factor for considera-
tion in determining the practicability of control, both as applied to individual
sources (in compliance schedule development) and to attainment dates.
It should be noted that the Agency is currently engaged in litigation with the
Natural Resources Defense Council over the question of relaxation of plan
requirements, through either granting of variances or other regulatory revi-
sions. NRDC argues that the only permissible means of postponing plan re-
quirements is pursuant to §110(f) of the Act, the provision for one-year post-
ponements upon specific findings by the Administrator on the record of a
formal hearing.
§§§§§§§
TITLE: EPA Options
DATE: February 8, 1973
BACKGROUND
Your memorandum of January 22, 1973, identifies problems with the avail-
ability of low-sulfur fuels and flue gas cleaning equipment which threaten to
impair the ability of some States to carry out their implementation plans to
attain and maintain national ambient air quality standards. In general you
point out the need to apportion available clean fuels and sulfur-removal hard-
ware so that some States do not obtain their clean air at the expense of others,
especially where measures more stringent than necessary to meet the national
primary standards are involved in some States, while attainment of the primary
standards is jeopardized in other States. Considerable uncertainty exists as
to the extent to which EPA may, within the constraints of the Clean Air Act,
control State action in the utilization of these resources vital to sulfur dioxide
control.
QUESTION #1
May EPA grant a one-year delay of compliance for a source which has made
good faith efforts but cannot obtain clean fuel or a scrubber by mid-1975, even
though the delay would result in a failure to attain a national primary ambient
air quality standard by that date?
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ANSWER #1
Such a delay may be granted if the requirements of §110(f) of the Act and 40
CFR 51. 32 are met.
DISCUSSION #1
Section 110(f) was introduced in the 1970 Clean Air Amendments by the
Conference Committee. _iy It is clearly separate from and in addition to
§110(e)'s provision for extending for two years the three-year attainment
date for national primary standards, and there is nothing in its terms or its
legislative history to indicate that it does not authorize a delay in com-
pliance where the result would be a failure to meet the standard by mid-1975
(or mid-1977 where a two-year extension was already in effect). 2/ The
section specifically conditions the one-year postponement on the Administra-
tor's determination that "any available alternative operating procedures and
interim control measures have reduced or will reduce the impact of such
source on public health" ((f)(l)(O). Since the primary standard would protect
the public health if achieved, there was no need for Congress to be concerned
with interim measures to protect public health unless the postponement would
interfere with the achievement of the primary standard. The net effect of
the section is to permit deferral for up to one year of the achievement of the
standard provided the conditions in the paragraph are met and such steps as
are feasible are taken to minimize the impact on public health.
As interpreted and applied by the Agency under 40 CFR 51. 32(f), 110(f) would
not come into play unless the proposed postponement would interfere with the
attainment of a national standard within the time specified in the plan.
We should emphasize that EPA may only grant a one-year postponement if
the Governor of the State applies to the Administrator and after the Admini-
strator holds a formal hearing under paragraph (f)(2)(A), makes a fair evalua-
tion of the entire record of the hearing, and makes a statement setting forth
the findings and conclusions required by paragraph (f)(l).
QUESTION #2
\
May EPA disapprove implementation plan compliance schedules which are de-
signed to improve air quality in areas already achieving national primary stan-
dards ?
I/ The provision had no counterpart in the House bill, but the Senate bill
included a provision allowing U. S. District Courts to extend for one
year (with renewals allowed) the deadline for attainment of a primary
standard, upon petition by the Governor of a State.
21 The Senate Conferees explained the effect of §110(f) in their "Discussion
' of Key Provisions", as follows:
"A Governor may also apply for a postponement of the deadline if,
when the deadline approaches, it is impossible for a source to meet
a requirement under an implementation plan...." 116 CONG. REC.
20600 (daily ed. Dec. 18, 1970).
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ANSWER #2
There is no legal basis on which EPA could reject either compliance schedules
or plans which achieve ambient air quality levels more stringent than that
required by the Clean Air Act or which achieve the levels required by the
Act sooner than necessary under the law.
DISCUSSION #2
The operative language of §110 is that the Administrator shall approve any
implementation plans which are consistent with the requirements of the Act.
As you are aware, we have argued in other contexts that there is no real
discretion in the Administrator either to require more than is set forth in
the Act or to permit the States to do less than that which the Act requires.
Specifically, §110(a)(2)(A)(i) requires that each State's plan provide for attain-
ment of the primary standards as expeditiously as practicable" but no later
than mid-1975 (except under a §110(a) extension). The legislative emphasis
was clearly on speedy protection of public health, and the determination as
to practicability is clearly the State's. As you are aware, §116 of the Act
reserves to States the rights to have more stringent standards than required by
the Clean Air Act. This of course would include the right to achieve those or
national standards sooner than mid-1975 and would include the right to achieve
such standards in an unreasonably short length of time.
There is simply no provision of the Act which we could point to to provide
legal support for rejection of schedules or plans which complied with the re-
quirements of §110. A review of the legislative history fails to reveal any
reference to the situation which you describe, namely, where the aggregate
effect of the implementation plans is to create a shortage of fuel or abatement
equipment which is likely to result in some areas not being able to meet
the primary standards while other areas use these resources where they could
meet the primary and perhaps even the secondary standards without them.
While there is certainly justification for telling all of the States that their
aggregate efforts create a situation in which individual time schedules become
"unreasonable", failure to approve the schedules in accordance with the Act
does not appear to be warranted and from a practical point of view, would
undoubtedly create a great deal of disruption. In this connection the Adminis-
trator's disapproval under the law is to be followed by promulgation of appro-
priate measures. Itwould be very difficult to argue that appropriate measures
are those which are less stringent than those which the States submitted.
Failure to take any action would not ease the situation since it would leave
the State regulations in effect but since they were not a'pproved by EPA would
deprive EPA of any enforcement power over that portion of the State plan.
QUESTION #3
May EPA approve variances extending beyond 1975-76 to State implementation
plan regulatory requirements in areas (1) which are meeting primary but not
secondary standards, if the date in the plan for achieving secondary standards
is reset beyond 1975-76? (2) which are already achieving secondary standards ?
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ANSWER #3
(1) Yes, but the resetting of the attainment date must also be approved by
EPA in accordance with the requirements of 40 CFR 51.13(b).
(2) Yes.
DISCUSSION #3
The Act's requirement that secondary standards be achieved within a "reason-
able time" has, in the case of sulfur dioxides, been interpreted and applied
by EPA regulations to mean that where the application of reasonably avail-
able control technology" will achieve the standards, they must be met by mid-
1975, unless the State shows that good cause exists for not applying that tech-
nology (40 CPR 51.13(b)>. The regulations (40 CFR 51.1(o)) provide a basic,de-
finition of "reasonably available control technology" as meaning the controls
and techniques which will provide for the emission limitations in Appendix
B to Part 51, but qualify that by stating that Appendix B's emission limitations
should not be adopted without considering "the social and economic impact of
such emission limitations, and.... alternative means of providing for attain-
ment. ... of such national standard". Presumably, either of these issues would
provide a basis for the "good cause" showing mentioned above.
Except with respect to highly industrialized areas, most of the State plans
specify attainment of the secondary standards for sulfur dioxide by mid-1975,
because either the State or EPA prescribed that date. (Plans for attainment
of the secondary standards in many problem areas have not yet been finalized,
due to EPA granting of 18-month extensions under §110(b)). Postponement
of these attainment dates will constitute plan revisions which will have to
be approved by EPA after public hearings, such approval will have to be
consistent with the requirements of EPA regulations discussed abpve. "Good
cause" showings that specific fuels and/or hardware are not available in fact
in a given area would, in our view, provide supportable grounds for a post-
ponement. Obviously, there is a significant distinction between the avail-
ability in a developmental sense of a type of control system or technique
and the actual availability in the marketplace of that control or the means
to effectuate that technique.
If it is determined that the Agency's regulations do not provide the States
adequate flexibility in setting reasonable dates for attainment of the secondary
standards, EPA may amend its regulations to allow greater flexibility. The
language and legislative history of §110 make clear that Congress did not
place the same emphasis on achieving the secondary standards as it did on
the attainment of the primary standards. In any case, it is clear that EPA
may not compel the States to defer attainment of the secondary standards or
even more stringent State standards, although it may encourage them to do
so.
In areas where secondary standards are already achieving secondary stan-
dards, the emissions from existing sources have been included in the calcula-
tions establishing that the standards are being attained., If States grant vari-
ances to those sources which would allow them to continue to emit at existing
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levels beyond 1975-76, EPA may approve the variances because there would
be no added emissions involved which could threaten maintenance of the stan-
dards. The construction of new sources of a pollutant already being emitted
does, of course, raise the threat of failure to maintain the standards. Provis-
ions for dealing with new sources in clean areas are, however, adequately
included in implementation plans in accordance with the requirements of 40
CFR 51.18 that new source construction be prohibited if it will "interfere with
the.... maintenance of a national standard. 3/
QUESTION #4
May EPA approve a request by a State for a two-year delay in achieving
primary standards under §110(e)? This request would be on the basis of
new evidence that alternatives to comply with the Act (e. g., clean fuels) are
not available?
ANSWER #4
We have previously taken the view that the two-year extensions may be granted
if they are requested prior to February 15, 1973. This view is currently being
reexamined in light of the recent decision in NRDC v. Ruckelshaus, and we
will advise you as to any changes.
§§§§§§§
TITLE: Approval of State Implementation Plans
DATE: February 3, 1972
FACTS
Your memorandum of December 4, 1971, to Donald Mosiman, Assistant Admi-
nistrator for Air and Water Programs, takes issue with Mr. Edward Tuerk's
statement that the Clean Air Act prohibits the Administrator from delegating
the authority to approve State implementation plans to Regional Administra-
tors. Mr. Mosiman's office has asked that we respond, since an interpretation
of the Act is involved.
QUESTION #1
Does the Clean AirAct permit the Administrator to delegate the authority to
approve State implementation plans?
37 Depending upon the final outcome of Sierra Club v. Ruckelshaus in the
U. S. Supreme Court, EPA may be Required to require State plans to
include not only this protection of national standards, but also protection
against significant degradation of air quality in areas already meeting sec-
ondary standards.
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ANSWER #1
Approval of implementation plans is rule making which §301 (a) of the Act
provides may not be delegated by the Administrator.
DISCUSSION
1. The relevant language of §301 (a) of the Act is as follows:
"The Administrator may delegate to any officer or employee of the
Environmental Protection Agency such of his powers and duties under
this Act, except the making of regulations, as he may deem necessary
or expedient. [emphasis added]
The underlined language encompasses all "rule making" by the Administrator
which the Administrative Procedure Act (5 U. S. C. 551) defines as "agency
processes for formulating, amending or repealing a rule". The term "rule '
is further defined to mean "the whole or a part of an agency statement of
general or particular applicability and future effect designed to implement,
interpret, or prescribe law or policy...."
2. We conclude that the Administrator's action in approving a plan or a portion
or revision thereof falls within the quoted definition. EPA approval (or dis-
approval) is required under §110 and, therefore, clearly implements the Act.
The effects of approval are prospective and its applicability may be said to be
both general and specific within the region or State involved.
3. One way of identifying agency action as rule making is to look to the legal
consequences which flow from it. By approving a State's regulation which is
part of a plan, the Administrator essentially adopts the regulation as a Federal
rule, thereby establishing the basis for EPA enforcement action should the
State default in enforcement.*/ We think that §110 does not contemplate, nor
would we expect courts to accept, Federal request for criminal penalties and
injunctive relief against sources on the basis of some informal EPA action not
having the status of an agency rule.
4. While we conclude that approval is rule making, it is our opinion that a
notice of proposed rule making may be dispensed with, on the ground that
public involvement in the formulation of the plan makes notice unnecessary.
~*J The alternative io EPA approval is EPA promulgation of a substitute
Federal regulation. §110(c)
§§§§§§§
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TITLE: Submission to EPA of Alterations and Changes in the Implementation
Plans
DATE: February 7, 1972
FACTS
Your memorandum of January 19, 1972 to Mr. Baum in which you asked if it
would be permissible for the State air pollution control agencies to submit to
EPA corrections to the implementation plans required to make the plans ap-
provable, has been referred to me for response. You have correctly noted
that the implementation plan regulations at 40 CFR 51.5 require the Governor
of each State to submit his State's implementation plan.
ISSUE
Do changes and alterations in State implementation plans, which are not re-
visions of rules, regulations and compliance schedules and which will be sub-
mitted prior to approval of the plan, have to be submitted to EPA by the
Governors?
ANSWER
Changes in implementation plans not constituting revisions specified at 40 CFR
51.6(c) and (d) (revisions of rules, regulations and compliance schedules) and
which are submitted prior to approval of the plan do not have to be submitted
to EPA by the Governor. Such changes may be submitted to EPA by the State
air pollution control agencies.
DISCUSSION
1. Section 110 of the Act does not require that the Governor of each State
submit the implementation plans. 1 / However, the implementation plan regula-
tions do impose this requirement^/
2. The regulations appear to require the Governor to submit all revisions
or changes to a plan. Revisions are changes in applicable (approved) plans.
These changes with which you are concerned are minor amendments to sub-
mitted but not yet approved plans, and are not to be considered revisions
T7 Section 110(a)(l) provides
Each State shall... adopt and submit to the Administrator... a plan...
Section 110(a) requires that the Governor of each State make the applica-
tion for the two-year extension of the three-year period. It cannot be
inferred, however, that this section requires the Governor to submit the
plan.
2/ 40 CFR 51.5
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within the applicable regulations. Consequently, the State air pollution control
agencies maybe permitted to submit to EPA alterations to submitted butnot yet
approved plans. It is advisable, however, to continue to have the Governors
submit changes which, if submitted after approval of an implementation plan,
would constitute a revision of a rule, regulation or compliance schedule.
3. This opinion should not be interpreted as relieving any State from the
obligation of complying with the formal requirements for "adoption" of an im-
plementation plan or any portion thereof.
§§§§§§§
TITLE: Status of Existing Regulations in State Implementation Plans
DATE: October 4, 1971
FACTS
In a September 16, 1971, memorandum to Mr. Robert Baum, of this office,
Mr. Terry Stumph of Region IX discussed the problem of certain States in
submitting existing regulations to public hearings prior to inclusion in the
State's implementation plan. Your September 27, 1971, memorandum to
Mr. Baum, which references Mr. Stumph's memorandum, concedes that exist-
ing regulations must be subjected to public hearings, and discusses the ne-
cessity for readoption of these existing regulations in order to include them in
the implementation plan.
QUESTIONS
1. Does section 110 require public hearings on existing regulations?
2. Does section 110 require readoption of existing regulations?
CONCLUSION
Unless the regulations are part of an implementation plan adopted and submitted
to the Secretary, DHEW, under the provisions of the Clean Air Act prior to
the enactment of the 1970 amendments, they must be subjected to a public
hearing. However, readoption of these regulations is not necessary for them
to be included in the implementation plan.
DISCUSSION
1. Section 110(a)(l) specifically provides that implementation plans under that
section shall be submitted to the administrator only after "reasonable notice
and public hearings. " The necessity for such hearings is reiterated through-
out the section. The Administrator must approve a plan if it meets certain
requirements and if he determines that it was adopted after reasonable notice
and hearing. Section 110(a){2). Revisions of implementation plans likewise
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may be adopted only after hearings. Section 110(a)(3). If a State fails to submit
an approvable implementation plan, the Administrator is to promulgate a
plan but only after review of the public hearings or, if none were held, after
the Administrator conducts such hearings. Section 110(c).
2. The legislative history makes clear that the hearings requirement reflects
the Congress1 belief that public hearings are essential to the success of
implementation plans. "Any implementation plan could be developed for a
region only after participation by the public. Public participation can only
be meaningful if there is reasonable notice and full disclosure of information
prior to public hearings." S. Rep. No. 91-1196, 91st Cong., 2d Sess. 12
(1970). "Reasonable notice must be given of, and public hearings held on,
any proposed plan." 1( H. Rep. No. 91-1146, 91st Cong., 2d Sess. 8
(1970)._2/ -~
3. The only existing regulations which are expressly exempted from the
hearings requirement are those which are included in a plan adopted and
submitted prior to the enactment of the 1970 amendments to the Act. The
savings provisions contained in section 16 of the Act provide that such plans
shall remain in effect if they meet the requirements of the amended Act.
The Congress could have provided such an exception for other regulations
which had previously been examined by the public at hearings, but it did
not. We think no basis exists for additional exemptions.
4. Our conclusion concerning the necessity for hearings does not, how-
ever, compel the conclusion that States must readopt existing regulations
which are included as part of an implementation plan. While all regulations
included in a plan must be in effect when the plan is submitted to the Ad-
ministrator for approval, neither the Act nor its legislative history contain
any indication that Congress contemplated readoption of existing regulations
prior to adoption of an implementation plan._3/ Such a step would be a
useless formality, inconsistent with the desire of the Congress for prompt
action in formulating the plans. Thus, while the States must subject their
present regulations to public discussion with reference to their inclusion in
the plan, once the decision is made to include them in the plan, the Clean
Air Act does not require that these regulations go through the complete
rule-making process.
_!_/ Note that the proposed plan is viewed as a whole, whether it contains
existing regulations or proposed regulations, or both.
21 See also Senator Muskie's remarks stressing the importance of public
~~ involvement. 116 Cong. Rec. 20597-98 (daily ed. December 18, 1970)
3/ "Adoption" of an implementation plan means adoption by appropriate
~~ means, i.e., legislative, rulemaking, or policy, of the laws, regu-
lations, and procedures which together comprise the plan. Separate
enactment of the plan, as an entity, is not required.
§§§§§§§
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TITLE: Pre-construction Review Authority Required for Implementation Plans
DATE: February 2, 1972
FACTS
In your January 19, 1972, memorandum to the Assistant General Counsel,
Air Quality and Radiation Division, you pointed out that EPA's regulations for
preparation, adoption, and submittal of implementation plans contain provis-
ions which appear to be inconsistent and possibly without legal justification.
Accordingly, you have requested our opinion on the proper interpretation of
these regulations.
QUESTION #1
Does section 110 of the Clean Air Act provide authority for EPA to require
that implementation plans contain legally enforceable procedures for precon-
struction review and approval of construction or modification of all significant
stationary sources?
ANSWER #1
Since section 110 requires the States to submit a plan which contains measures
necessary to insure attainment and maintenance of national air quality stand-
ards, there is general authority for EPA to require review and control of
construction of all sources if this procedure is deemed essential.
QUESTION #2
What information is required under 40 CFR 51. 18(c) to determine if a control
strategy is violated ?
ANSWER#2
This information should be the same as that necessary to determine whether
construction or modification will result in attainment or maintenance of a
national standard.
DISCUSSION
1. 40 CFR 51.11(a)(4) requires that each implementation plan show that the
State has legal authority to
\
prevent construction, modification or operation of any stationary source
at any location where emissions from such source will prevent the at-
tainment or maintenance of a national standard.
40 CFR 51.18(a) requires that in connection with the above legal authority
[e]ach plan shall set forth legally enforceable procedures that will be
used to implement the authority described in section 51. ll(a)(4), which
procedures shall be adequate to enable the State to determine whether
construction or modification of stationary sources will result in
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violations of applicable portions of the control strategy or will inter-
fere with attainment or maintenance of the national standard.
2. The legal authority regulation (section 51.11(a)(4)) does require a State
to be able to control construction or modification of all sources. Although
Congress, in section 110(a)(2)(D) and 110(a)(4), specifically required this au-
thority only with respect to new sources subject to section 111, there is justi-
fication for the broader requirement under the general purpose of section
110 and specifically under section 110(a)(2)(B). The overall intent of section
110 is to provide a plan which will permit attainment and maintenance of
national ambient air quality standards. While section 110(a)(2) does include
certain specific items which the Congress said would be necessary to reach
this goal, it also provided flexibility in section 110(a)(2)(B) which states that
the plan shall be approved if it includes "such other measures as may be
necessary to insure attainment and maintenance of such primary or secondary
standards, including, but not limited to, land-use and transportation controls .
Accordingly, the Agency may require by regulation those elements of a plan
which it believes necessary to insure attainment and maintenance of any na-
tional standard. In prescribing section 51. ll(a)(4) of the regulations, the
Agency was implementing its determination that control of the location, con-
struction, and modification of sources other than those now covered under
section 111 would be necessary to insure attainment and maintenance of the
national standards. It is difficult to imagine anything more destructive of
a program designed to protect air quality than the unsupervised introduction
of significant new sources of pollution to an air quality region.
3. As pointed out above, section 110 clearly contemplates that land-use con-
trols will be necessary. Since source location control is directly concerned
with land-use, we feel that there is express support in that section for re-
quiring this type of control.
4. The relationship between the two regulations cited above presents a dif-
ferent problem. The scope of section 51.18(a) is a function of the scope
of section 51.11(a)(4). The regulation cannot compel the State to set forth
procedures to accomplish something which the State is not required tp do
under 51.11(a)(4). That section only requires the State to prevent construc-
tion, modification, or operation of a source where that source will inter-
fere with attainment or maintenance of the national standard. However, even
though section 51. ll(a)(4) does notmention "control strategy", we cannot iden-
tify any substantive difference in the two sections. A control strategy, as
defined in 40 CFR 51.1(n), refers basically to emission controls. We do
not, therefore, foresee any situation where information concerning the control
strategy would not also be pertinent to the effect of the construction or modi-
fication on the attainment or maintenance of a national standard. Of course,
should there be information which in fact does only affect decisions regarding
the control strategy, the problem of having to reject a plan for failure to
provide the procedures required by the regulation would arise. We believe it
would be appropriate to amend section 51.18(a) to conform with section 51. 11
but this problem should not interfere with the development and approval of
State implementation plans.
§§§§§§§
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TITLE: Time Period for Attainment of the National Standards
DATE: December 10, 1971
FACTS
Pursuant to §110(e) of the Clean Air Act, on application of a governor at the
time of submission of an implementation plan, the Administrator may, after
making certain determinations, extend the 3-year period for achievement of
the primary standards for up to two additional years.
ISSUE
If, pursuant to §110(c), the Administrator must promulgate an implemen-
tation plan for a State, does he have the option of promulgating a plan which
incorporates the 2-year extension, or must the EPA plan provide for the
attainment of the standards within the 3-year period?
ANSWER
Upon the making of the requisite determinations under §110(e), an implemen-
tation plan promulgated by the Administrator may provide for up to five years
for the achievement of national primary standards.
DISCUSSION
By including provisions for the 2-year extension in the Clean Air Act, Congress
recognized that in certain regions the attainment of the national standards
would be impossible within three years. Accordingly, Congress included in
the law a mechanism by which, under prescribed circumstances, up to two
additional years could be given to the State to achieve the standards. Whether
or not a State submits an approvable implementation plan is irrelevant to the
question of how long a period is necessary for achievement of the standards.
Thus, although the Act does not specifically cover the point, there can be
no doubt that in situations where, if a State had submitted a request for the
extension and it would have been granted, the Administrator's plan may itself
extend the time for achievement of the standards.
§§§§§§§
TITLE: Variances and Compliance Schedules
DATE: February 4, 1972
FACTS
In the process of reviewing implementation plans, OGE has raised questions
regarding the situation where a State grants a variance to a compliance schedule
which is part of an applicable implementation plan.
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ISSUE #1
If a State grants a source or class of sources a variance from an EPA approved
compliance schedule, does that variance constitute a revision of the implemen-
tation plan within the meaning of the regulations (40 CFR Part 51)?
ANSWER #1
Yes. Any altering or adjusting of an approved compliance schedule which de-
fers the applicability of part of an approved control strategy will constitute
a revision of the implementation plan.
ISSUE #2
As a procedural matter, what must the State do before a variance can be
approved ?
ANSWER#2
As required by §110(a)(3), any variance must be the subject of a public hearing.
DISCUSSION
1. OGE has asked if the implementation plan regulations require that a vari-
ance to an approved compliance schedule be subjected to a public hearing.
This office has concluded that the regulations do not clearly state that as
a requirement, and that their failure to do so is an omission which must
be corrected in order to make the regulations internally consistent with §110
of the Act.
2. Each State is required to submit compliance schedules to EPA as part
of its implementation plan. I/ These compliance schedules may either be
submitted at the time the plan is submitted or as soon as possible there-
after but no later than 45 days after the end of the first complete semiannual
period following approval of the implementation plan, i.e., February 15,
1973._2/ A compliance schedule may be included in a control regulation or
it may be individually negotiated with a source. The Administrator may dis-
approve any compliance schedule if such schedule does not provide for attain-
ment of the national primary standards as expeditiously as practicable. 3/
3. The status of variances to approved compliance schedules is addressed
in §51.32(f) (request for one-year postponement) of the regulations as follows:
A State's determination to defer the applicability of any
portion(s) of the control strategy with respect to such
source(s) will not necessitate a request for postponement
under this section unless such deferral will prevent attain-
_!/ 40 CFR 51. 15
2J 40 CFR 51.15(a)(l) and (2); 40 CFR 51. 7
_3j 40 CFR 51.15(b). In the case where a compliance schedule is disapproved,
EPA must promulgate one pursuant to §110(c) of the Act.
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ment or maintenance of a national standard within the time
specified in such plan: provided, however, that any such
determination will be deemed a revision of an applicable"
plan under §51.6. [emphasis added]
"Control strategy", defined at 40 CFR 51.1(n), includes compliance sche-
dules. 4/ Because a variance to any approved compliance schedule defers
the applicability of a control strategy, it constitutes a plan revision. All re-
visions of approved implementation plans must be approved by the Admini-
strator (40 CFR 51.8).
4. Section 51. 6(c) of the regulations requires that "review of rules and regu-
lations included in an applicable plan. ..be adopted after reasonable notice
and public hearings...." However, the absence of a specific reference to
compliance schedules in 51.6(c) raises an apparent inconsistency with §110
(a)(3) of the Act, which provides that "any revision" of a plan must be adopted
after notice and public hearing. The possibility of confusion is increased
by the fact that §51. 6(d) includes a reference to compliance schedules._5/
5. Recognizing that the requirement of a public hearing prior to the issuance
of a variance may create a serious burden for some States, the only suggestion
that can be made at this point is that the States be encouraged to submit
compliance schedules that are realistic. This is consistent with the require-
ment of the §110 and the regulations that plans achieve the primary standards
"as expeditiously as practicable" [emphasis added], but no later than three
years from the date of approval.
§§§§§§§
TITLE: Postponement of an Implementation Plan
DATE: April 18, 1973
MEMORANDUM OF LAW
FACTS
The Los Angeles Task Force is drafting a plan for the attainment and main-
tenance of the primary standard for photochemical oxidants in the Metropolitan
Los Angeles Intrastate Air Quality Control Region. For the purpose of this
Memorandum, it is assumed that the Administrator has granted a valid two-
year extension of the 1975 deadline, and the plan will therefore provide for
attainment of the standard in 1977.
T7 "Control strategy means a combination of measures designated to achieve
" the aggregate reduction of emissions necessary for attainment and main-
tenance of a national standard...."
5/ Section 51.6(d) specifies that "any revision of rules and regulations and
of compliance schedules be submitted. . .within 60 days following. ..
adoption. "
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QUESTION
Can the implementation of all control measures in a promulgated implemen-
tation plan be delayed until the 1977 deadline when a two-year extension has
been given ?
ANSWER
No. Section 110(a)(2)(B) of the Act, and the Administrator's regulations, 40
CFR §51.30, requirethat "interim control measures" which are "reasonable"
be provided for with respect to those sources which will be unable to comply
with the control strategy by 1975. In addition, each plan must contain legally
enforceable "compliance schedules" setting forth dates by which all stationary
and mobile sources must be in compliance with any applicable requirement
of the plan "as expeditiously as practicable," 40 CFR §51.15 (37 Fed. Reg.
26310, December 9, 1972). - - — ^
DISCUSSION
1. The Clean Air Act requires that an implementation plan provide for the
attainment of a primary standard "as expeditiously as practicable but (subject
to subsection (e)) in no case later than three years from the date of approval
of such plan . . . . " §110(a)(2)(A)(i). In addition, the Act requires that
a plan include "emission limitations, schedules, and timetables for compliance
with such limitations . ..." §110(a)(2)(B).
It could be argued that only attainment of the standard, not steps toward attain-
ment, must be achieved as expeditiously as practicable. It could be further
argued that the schedules and timetables for compliance need not provide for
compliance by each source as expeditiously as practicable, but could instead
include other considerations,
However, this view would seem to run counter to the basic scheme of Title
I to achieve clean air protective of public health at the earliest possible time.
Therefore, Agency regulations provide that each plan must contain:
legally enforceable compliance schedules setting forth
the dates by which all stationary and mobile sources
or categories of sources must be in compliance with
any applicable requirement of the plan. Such com-
pliance schedules shall contain increments of progress
required by paragraph (c) of this section. 40 CFR
The compliance schedules designed to provide for attainment of a primary
standard must provide for compliance with the applicable plan requirements
"as expeditiously as practicable. " 40 CFR §51. 15(b). And most compliance
schedules must provide for "legally enforceable increments of progress toward
compliance by each affected source or category of sources. "40 CFR §51.15(c).
These regulations taken together mean that each requirement of the plan must
be finally implemented at the earliest practicable date, and that it be imple-
mented in increments as quickly as practicable. For example, a requirement
for retrofit or inspection should involve progressive application to groups of
mobile sources until all within the affected category are covered. (Thus,
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municipal vehicles might be covered first, then all fleet vehicles, then all
recent pre-1975 vehicles, and finally all older vehicles.) A requirement for
gasoline rationing should involve such rationing as can be done without causing
undue hardship at the earliest date, with the percentage of rationing increasing
as alternative transportation can be predicted to increase, with full application
in 1977.
2. In situations where a two-year extension has been granted for attainment
of the primary standard, the Act requires that the plan provide, with respect
to the sources or classes of moving sources which are unable to comply with
the requirements of the plan, for such interim measures of control' as the
Administrator determines to be "reasonable under the circumstances." §110
(e)(2)(B)and (1)(A). To implement this provision of the Act, the Administrator
promulgated a regulation which requires that a request for extension must
show that one or more emission sources or classes of moving sources will
be unable to comply with applicable portions of the control strategy, 40 CFR
§51. 30(c)(2), and that such a showing must include:
A showing that reasonable interim control measures
are provided for in such plan with respect to emissions
from the source(s) identified [as being unable to comply]
... 40 CFR §51.30(d)(5).
There may seem to be an apparent conflict between the provisions of the Act
as interpreted by this regulation regarding plans with extension requests, which
allow interim control measures to be "reasonable" and the regulation for com-
pliance schedules for all plans, which requires that compliance be achieved
'as expeditiously as practicable." However, it is the view of this office
that all plans providing for attainment of the standards in 1975 should follow
the compliance schedule regulation and achieve increments of progress "as
expeditiously as practicable' , when an extension request is filed, the sources
which are identified as unable to comply by 1975 should also be required
to comply as expeditiously as practicable under the interim control measures,
although in unusual circumstances where a feasible or practicable interim
measure can be shown to be unreasonable, the Administrator may agree to
a somewhat less stringent interim measure.
§§§§§§§
TITLE: Extension of Compliance Dates for Individual Sources
Beyond Attainment Dates
DATE: August 31, 1973
FACTS
Your August 2, 1973, memorandum to Mr. Robert Zener raises several ques-
tions in connection with the dates for source compliance with regulations appli-
cable to priority III regions. Specifically, you are concerned about the impact
of the NRDCv. EPA decision in the First Circuit which established restrictions
on the granting of variances beyond the mandatory attainment date established
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by the Clean Air Act. You are now faced with situations where sources in pri-
ority III regions desire variances from emissions-limiting regulations which
would defer compliance beyond 1975.
QUESTION #1
May variances be approved by EPA which defer compliance beyond 1975 for
sources located in priority III regions ?
CONCLUSION #1
Since the control strategy in a priority III region is only designed for maintenance
of the standards, the time restrictions set forth in §110(a) (2)(A) and 40 CFR
§51.15(b) do not limit the time for requiring compliance by individual sources.
The First Circuit Court of Appeals, in our opinion, was addressing the problems
associated with control strategies designed both for attainment and maintenance.
Therefore, that decision does not restrict the deferral of compliance dates
in priority III regions.
QUESTION #2
Must emission limitations in priority III regions be enforced ?
CONCLUSION #2
Yes.
Amendments by the Conference Committee. 11 It is clearly separate from
and in addition to §110(e)'s provision for extending for two years the three-year
attainment date for national primary standards, and there is nothing in its terms
or its legislative history to indicate that it does not authorize a delay in com-
pliance where the result would be a failure to meet the standard by mid-1975
(or mid-1977 where a two-year extension was already in effect)._2_/ The section
specifically conditions the one-year postponement on the Administrator's deter-
mination that "any available alternative operating procedures and interim control
~T7 The provision had no counterpart in the House bill, but the Senate
bill included a provision allowing U. S. District Courts to extend
for one year (with renewals allowed) the deadline for attainment
of a primary standard, upon petition by the Governor or a State.
_2_/ The Senate Conferees explained the effect of §110(f) in their
"Discussion of Key Provisions", as follows:
"A Governor may also apply for a postponement
of the deadline if, when the deadline approaches,
it is impossible for a source to meet a require-
ment under an implementation plan...." 116 CONG.
REG. 20600 (daily ed. Dec. 18, 1970).
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measures have reduced or will reduce the impact of such source on public
health" ((f)(l)(C)). Since the primary standard would protect the public health
if achieved, there was no need for Congress to be concerned with interim
measures to protect public health unless the postponement would interfere
with the achievement of the primary standard. The net effect of the section
is to permit deferral for up to one year of the achievement of the standard pro-
vided the conditions in the paragraph are met and such steps as are feasi-
ble are taken to minimize the impact on public health.
As interpreted and applied by the Agency under 40 CFR 51. 32(f), 110(f) would
not come into play unless the proposed postponement would interfere with
the attainment of a national standard within the time specified in the plan.
We should emphasize that EPA may only grant a one-year postponement if
the Governor of the State applies to the Administrator and after the Admini-
strator holds a formal hearing under paragraph (f)(2)(A), makes a fair evalua-
tion of the entire record of the hearing, and makes a statement setting forth
the findings and conclusions required by paragraph (f)(l).
QUESTION #2
May EPA disapprove implementation plan compliance schedules which are de-
signed to improve air quality in areas already achieving national primary stan-
dards.
ANSWER #2
There is no legal basis on which EPA could reject either compliance schedules
or plans which achieve ambient air quality levels more stringent than that
required by the Clean Air Act or which achieve the levels required by the
Act sooner than necessary under the law.
DISCUSSION # 2
The operative language of §110 is that the Administrator shall approve any
implementation plans which are consistent with the requirements of the Act.
As you are aware, we have argued in other contexts that there is no real dis-
cretion in the Administrator either to require more than is set forth in the
Actor to permit the States to do less than that which the Act requires. Speci-
cifically, §110(a)(2)(A)(i) requires that each State's plan provide for attain-
ment of the primary standards "as expeditiously as practicable" but no later
than mid-1975 (except under a §110(e) extension). The legislative emphasis
was clearly on speedy protection of public health, and the determination as
to practicability is clearly the State's.
As you are aware, §116 of the Act reserves to States the rights to have more
stringent standards than required by the Clean Air Act. This of course
would include the right to achieve those or national standards sooner than
mid-1975 and would include the right to achieve such standards in an unrea-
sonably short length of time.
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There is simply no provision of the Act which we could point to to provide legal
support for rejection of schedules or plans which complied with the require-
ments of §110. A review of the legislative history fails to reveal any reference
to the situation which you describe, namely, where the aggregate effect of the
implementation plans is to create a shortage of fuel or abatement equipment
which is likely to result in some areas not being able to meet the primary
standards while other areas use these resources where they could meet the
primary and perhaps even the secondary standards without them.
While there is certainly justification for telling all of the States that their
aggregate efforts create a situation in which individual time schedules become
"unreasonable", failure to approve the schedules in accordance with the Act
does not appear to be warranted and from a practical point of view, would
undoubtedly create a great deal of disruption. In this connection the Adminis-
trator's disapproval under the law is to be followed by promulgation of appro-
priate measures. It would be very difficult to argue that appropriate meas-
ures are those which are less stringent than those which the States submitted.
Failure to take any action would not ease the situation since it would leave
the State regulations in effect but since they were not approved by EPA would
deprive EPA of any enforcement power over that portion of the State plan.
QUESTION #3
May EPA approve variances extending beyond 1975-76 to State implementa-
tion plan regulatory requirements in areas (1) which are meeting primary but
not secondary standards, if the date in the plan for achieving secondary stan-
dards is reset beyond 1975-76? (2) which are already achieving secondary
standards ?
ANSWER #3
(1) Yes, but the resetting of the attainment date must also be approved by
EPA in accordance with the requirements of 40 CFR 51.132(b).
(2) Yes.
DISCUSSION #3
The Act's requirement that secondary standards be achieved within a "rea-
sonable time" has, in the case of sulfur dioxides, been interpreted and applied
by EPA regulations to mean that where the application of 'reasonably avail-
able control technology" will achieve the standards, they must be met by mid-
1975, unless the State shows that good cause exists for not applying that
technology (40 CFR 51.13(b». The regulations (40 CFR 51.1(o)) provide a
basic definition of "reasonably available control technology" as meaning the
controls and techniques which will provide for the emission limitations in
Appendix B to Part 51, but qualify that by stating that Appendix B's emission
limitations should not be adopted without considering "the social and economic
impact of such emission limitations, and alternative means of providing
for attainment of such national standard". Presumably, either of these
issues would provide a basis for the "good cause" showing mentioned above.
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Except with respect to highly industrialized areas, most of the State plans
specify attainment of the secondary standards for sulfur dioxide by mid-1975,
because either the State or EPA prescribed that date. (Plans for attainment
of the secondary standards in many problem areas have not yet been finalized,
due to EPA granting of 18-month extensions under §110(b). Postponement of
these attainment dates will constitute plan revisions which will have to be
approved by EPA after public hearings. Such approval will have to be con-
sistent with the requirements of EPA regulations discussed above. "Good
cause" showings that specific fuels and/or hardware are not available intact
in a given area would, in our view, provide supportable grounds for a post-
ponement. Obviously, there is a significant distinction between the avail-
ability in a developmental sense of a type of control system or technique and
the actual availability in the marketplace of that control or the means to
effectuate that technique.
If it is determined that the Agency's regulations do not provide the States
adequate flexibility in setting reasonable dates for attainment of the secondary
standards, EPA may amend its regulations to allow greater flexibility. The
language and legislative history of §110 make clear that Congress did not
place the same emphasis on achieving the secondary standards as it did on
the attainment of the primary standards. In any case, it is clear that EPA
may not compel the States to defer attainment of the secondary standards or
even more stringent State standards, although it may encourage them to do so.
In areas where secondary standards are already achieving secondary stand-
ards, the emissions from existing sources have been included in the calcu-
lations establishing that the standards are being attained. If States grant
variances to those sources which would allow them, to continue to emit at
existing levels beyond 1975-76, EPA may approve the variances because there
would be no added emissions involved which could threaten maintenance of
the standards. The construction of new sources of a pollutant already being
emitted does, of course, raise the threat of failure to maintain the standards.
Provisions for dealing with new sources in clean areas are, however, ade-
quately included in implementation plans in accordance with the requirements
of 40 CFR 51.18 that new source construction be prohibited if it will "inter-
fere with the.. .. maintenance of a national standard. "__3_/
QUESTION #4
May EPA approve a request by a State for a two-year delay in achieving
primary standards under §110(e) ? This request would be on the basis of new
evidence that alternatives to comply with the Act (e.g., clean fuels) are not
available ?
Depending upon the final outcome of Sierra Club v. Ruckelshaus in the
U. S. Supreme Court, EPA may be required to require State plans to
include not only this protection of national standards, but also protection
against significant degradation of air quality in areas already meeting
secondary standards.
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ANSWER #4
We have previously taken the view that the two-year extensions may be granted
if they are requested prior to February 15, 1973. This view is currently being
reexamined in light of the recent decision in NRDC v. Ruckelshaus. and we
will advise you as to any changes. ——
§ § S § § § S.
TITLE: Necessity of Public Hearings on Compliance Schedules
DATE: February 25, 1972
MEMORANDUM OF LAW
FACTS
In connection with EPA review of State implementation plans, there has been
considerable discussion regarding source compliance schedules which are not
included as part of a control regulation. States have differed in their ap-
proaches to adoption of these schedules and their submission to EPA for ap-
proval. Some States have adopted or will adopt such compliance schedules
as part of variances to control regulations, while others utilize them to assure
that sources take the steps necessary to meet control regulations having effec-
tive dates which are months or years distant. The necessity of public hearings
in the former situation was discussed in our memorandum to you of February 4,
1972.
QUESTION #1
Are source compliance schedules required to be the subject of public hearings ?
ANSWER #1
Each source compliance schedule which is included in a State's control strat-
egy to achieve or maintain a national ambient air quality standard constitutes
part of the State's implementation plan required to be submitted to EPA for
approval, and is required by section 110 of the Clean Air Act to be the sub-
ject of a public hearing. The requirement for hearing applies whether the
compliance schedule is set forth by regulation, administrative order, or other
legally enforceable means other than court order.
QUESTION #2
Must States submit to EPA as part of their implementation plans, all com-
pliance schedules for individual sources ?
ANSWER #2
Each individual source compliance schedule which constitutes part of a State's
control strategy must be submitted to EPA as part of its implementation
plan.
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QUESTION #3
Do EPA's regulations governing preparation, adoption, and submittal of im-
plementation plans (40 CFR Part 51) clearly set forth the requirement for
public hearings on compliance schedules ?
ANSWER #3
While sections 51.15(a)(l) and 51. 4, when read together, clearly provide that
compliance schedules must be included in the plan initially submitted to EPA
3nd that such plan must be the subject of a public hearing, the provisions of
section 51.15(a)(2) allowing States to postpone the negotiation and submission
of compliance schedules for individual sources beyond initial plan submission
has apparently left room for doubt as to whether such schedules must be the
subject of public hearings.
QUESTION #4
Must EPA apply the notice requirements of 40 CFR 51. 4 to public hearings
held on compliance schedules ?
ANSWER #4
Although 40 CFR 51.4 now requires 30 days notice of a public hearing, this
requirement is based upon EPA's determination of what constitutes reasonable
notice of an entire plan, and EPA could prescribe by regulation a different
period of notice designed to provide reasonable opportunity for adequate public
scrutiny of more-limited subject matter.
DISCUSSION
NOTE: Each topic in this section is numbered in accordance with the related
question above. ,
1. Section 110(a)(2)(B) of the Act specifically provides that State implemen-
tation plans shall include ". .. emission limitations schedules and timetables
for compliance with such limitations.. . " [emphasis added]. This require-
ment is elaborated upon in section 51.15 of EPA's regulations on implemen-
tation plans, which provides that each plan must contain legally enforceable
compliance schedules for all sources or source categories subject to require-
ments of a control strategy, but allows States as much as approximately one
year from the date that plan submission is required (January 30, 1972) to
negotiate and submit as part of the plan any individual source compliance
schedules which it is impossible to negotiate and adopt prior to January 30,
1972. The allowance for later submission of individual compliance schedules I/
T/In most cases these schedules would bind sources to specified actions
to insure that they meet the compliance dates set forth in control regu-
lations.
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reflected the Agency's judgment that (1) most States could not handle initial
plan preparation and individual source compliance schedule negotiation con-
temporaneously and (2) the initial evaluation of plans, particularly control
strategies, to determine compliance with section 110 of the Act could be done
without such individual schedules included. Essentially, the submission of
the individual schedules has been treated as an amendment to the initial sub-
mission of the plan. Such schedules are distinguishable from variances or
exceptions, since they would not revise an approved plan.
Because compliance schedules included in a control strategy are required by
the Act and EPA regulations to be included in a State's implementation plan,
they are also required to be the subject of public hearings. Section 110
clearly provides that the Administrator is to approve a plan or each portion
of a plan "if he ' determines that it was adopted after reasonable notice and
[public] hearing.. . . 2/ In addition, there are numerous statements in the
legislative history, both in committee reports and in floor discussions, which
attest to the importance that the Congress attached to public involvement in
the development of State air pollution control measures required by the Act.
In the face of such unequivocal expression of congressional purpose, argu-
ments that compliance schedules ought not to be subjected to public examina-
tion because of the administrative burden involved or because they tradi-
tionally have been kept from the public's view must fail. Just as the Act's
requirement of compliance schedules is intended to insure that States will
require sources to obtain necessary controls by the regulations' compliance
dates, the public hearing requirement is designed to insure public oversight
of the State agency's actions.
2. In order to be able to make the best possible evaluation of a plan to deter-
mine compliance with section 110 of the Act, the Agency decided that it is
necessary and reasonable to require that all existing portions of a control
strategy be submitted for initial plan review (see 40 CFR 51. 15). Apparently,
some States have submitted to EPA implementation plans which do not include
individual source compliance schedules that are in effect and which directly
affect a control strategy. While this approach is acceptable where the State
recognizes that the schedule is inadequate to effectuate the control strategy
and plans to renegotiate the schedule for later submission as part of its
plan pursuant to EPA's regulations (section 51.14(a)(2)), the withholding of
other existing schedules constitutes failure to comply with those regulations
(section 51.15(a)(D).
3. As noted above, section 51.15(a)(l) of EPA's regulation provides that each
implementation plan shall contain compliance schedules for all sources cover-
ed by a control strategy, and section 51.4(a) requires that each plan be the
subject of at least one public hearing. We see no basis, therefore, for the
position taken by some States that the regulations do not clearly require com-
pliance schedules of general applicability adopted by regulation and schedules
administratively negotiated with individual sources (whether as part of a vari-
ance or by other means) to be covered in the initial public hearing on plan
adoption. The argument that section 51.15(a)(2) appears to remove individual
source compliance schedules negotiated between January 30, 1972 and Jan-
uary 1, 1973 from the plan per s_e may have somewhat more merit. Any
~S7This provision is implemented by section 51.4 of EPA's regulations.
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confusion in this area could be cured by amending section 51.15(a)(2) to ex-
pressly re quire public hearings on these schedules prior to submission to
EPA. The section should also make clear the submission requirements for
any such schedules adopted after the first semi-annual reporting period.
4. We are aware that the holding of a public hearing on each individual source
compliance schedule by approximately January 1, 1973, may present substan-
tial problems for any State which regulates many sources under a control
strategy. The prospect of procedural delays interfering with the substantive
progress in State action directed by section 110 is unsettling. 3/ It is appro-
priate, therefore, to examine whether the "reasonable notice71 requirement
of section 110 of the Act may be met by notice other than the 30 days pre-
scribed by section 51.4(b) of EPA's regulations. _4_/ This provision of the
regulations was designed to provide adequate apportunity for public analysis
of a rather lengthy document dealing with numerous and diverse sources. In
the case of an individual source compliance schedule, the verbiage and issues
are much more limited and, logically, reasonable notice could involve a much
shorter time period. We recommend, therefore, that OGE and OAP consider
amending section 51.4 so as to define a different "reasonable notice" period
for hearings on individually negotiated source compliance schedules_5_/, e.g.,
15 days.
It would also be advisable to explain in the regulations that a separate and
distinct proceeding need not be called for each schedule. We are of the
opinion that the hearing requirements of section 110 would be satisfied by
providing an opportunity for hearing in a proceeding in which the calendar is
arranged much like that of a traffic court, so that schedules on which no one
wishes to be heard need not cause delay.
Finally, we wish to make clear that we do not think the Act in any way pre-
cludes private negotiations between State agencies and sources on compliance
schedules, provided that the public is afforded sufficient notice of the sub-
stance of the schedule to be able to assess its merits prior to hearing. In
order to provide for adequate review, section 51.4 should require that each
17 The Administrator, in testimony before the Air and Water Pollution
Subcommittee of the Senate Public Works Committee on February 18,
1972, pointed out the competing policies involved in this matter. He also
noted that he believed that section 110 requires public hearings on all
compliance schedules.
4/ An argument can be made that section 51.4(b) restricts the 30-day notice
requirement to rules and regulations only, because of the "as a minimum"
language. However, we think the "principal portions "requirements governs
and, in this situation, the compliance schedule is the only portion of a
plan involved.
5/ Also note that section 51.6(c) requires that revisions of rules and regu-
lationsbe adopted after notice and hearing pursuant to section 51. 4. Our
memorandum to you of February 4, 1972, points out that section 51. 6(c)
must be amended to include reference to compliance schedules.
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source for which a schedule has been negotiated be identified in the publica-
tion of notice, and that each compliance schedule be available for public in-
spection during the notice period in at least one location in the air quality con-
trol region in which the source is located.
§§§§§§§
TITLE: One-Year Postponement Under §110(f)
DATE: June 12, 1973
MEMORANDUM OF LAW
BACKGROUND
1. Under §110(f) of the Clean Air Act of 1970, the Governor of a State may
request that the effective date of a requirement of an implementation plan, as
it applies to a specific source, be postponed for a period not to exceed one
year. Section 110(f)(2) contemplates that any determination relating to such
postponement request shall be (1) on the record after notice to interested per-
sons and pursuant to a hearing; (2) based on a fair evaluation of such record;
(3) embodied in a statement setting forth in detail findings of fact and those
conclusions upon which the determination is based.
2. To qualify for a postponement, the petitioning party must meet the follow-
ing statutory requirements:
(a) A good faith effort must have been made in attempting to meet the
requirement in question. §110(f)(l)(A)
(b) The requirement is unattainable within the time frame specified by
the implementation plan because the technology needed to satisfy the re-
quirement is either unavailable or has not been available for a sufficient
period of time. §110(f)(l)(B)
(c) Any available operating procedures will be used during the postpone-
ment period to abate the impact of the source in question. §110 (f)(l)(C)
(d) The continued operation of the source is essential to national security
or to the public health or welfare. §110(f)(l)(D)
3. The question presented are as follows i_\J •>
(a) Is the procedure contemplated by §110(f) rule-making or adjudicatory
in nature ?
17 See memorandum of Edward E. Reich dated May 31, 1973.
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(b) If adjudicatory, is a formal §554 Administrative Procedure Act (APA)
hearing required ?
(c) If a formal APA hearing is required, who may participate and what
procedural rights are available to such persons ?
(d) What is contemplated by the phrase "the continued operation of the
source is essential to national security or the public health or welfare?"
DISCUSSION
Question 1: Is the procedure contemplated by §110(f) rulemaking or adju-
dicatory in nature ?
1. The answer to this question turns on whether the information sought to
be elicited in §§110(f)(A) - (D) is adjudicatory rather than legislative. If
the former, it is well settled that a determination should not be made with-
out first giving the parties involved an opportunity "to know and to meet any
evidence that may be unfavorable to them. Davis, Vol. 1 §7. 02 at 413. Con-
versely, where the facts to be adduced are legislative in nature an evidentiary
hearing is not required. Davis, Supp. Vol. §7.04 at 321.
2. As stated by Professor Davis, "Adjudicative facts are facts about the par-
ties and their activities, businesses and properties. Adjudicative facts usually
answer the questions of who did what, when, how, why . . . . " Davis, Vol.
1 §7.02 at 413. Therefore, because the parties know more about such facts
than anyone else it logically follows that they are in the best position to rebut
or explain evidence that bears upon such (adjudicative) facts. 2/ Id. at 413.
3. By contrast, legislative facts "do not usually concern the immediate par-
ties but are general facts which help the tribunal decide questions of law and
policy and discretion. " Davis, Vol. §7.02 at 413.
4. In the context of §110(f) it is clear that requirements (a) and (C) are adju-
dicative in nature in that they look to facts which directly apply to the parties
-- viz., has good faith been shown; will steps be taken to reduce the impact
of the source during the period of postponement? However, the same analysis
can not be as neatly applied to requirements (B) and (D).
In the case of requirement (B), it is probably fair to say that most inquiries
will call for adjudicative facts. However, it is possible to think of situations
where the facts being adduced will tend toward being legislative rather than
adjudicative. For example, under requirement (B) the question of whether
a source has access to necessary technology would, at first blush, appear to
always call for adjudicative facts. This is because the source is in the best
position to attest to the technological problems it has encountered in unsuc-
cessfully attempting to comply with the applicable control strategy. However,
The Supreme Court has noted that "[i]n almost every setting where im-
portant decisions turn on questions of fact, due process requires an oppor-
tunity to confront and cross-examine adverse witnesses. "
Goldberg v. Kelly, 397 U.S. 254, 269 (1970)
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if the source were, for example, a power plant, its contention that a cer-
tain type of scrubber was needed to bring it into compliance might well lead
to the dual question of whether such methodology was, in fact, the only way
of remedying the problem and, if not, what alternative technological ap-
proaches were available. Because these questions look to facts which, in
most cases, will not be in the possession of the source, a persuasive argu-
ment can be made that such facts are legislative in nature.
Similarly, while the question of whether a community can survive for a
year without its principle factory would undoubtedly be considered adjudica-
tory in nature, if that factory happened to be a munitions plan, the question
of whether the continued operation of such a facility was essential to national
security (see requirement (D)) would seem to call for legislative rather than
adjudicative facts.
In spite of this inconclusive state of affairs, since an adjudicatory proceeding
will, in any event, be necessary under §110(f)(l)(A) and (C), it would seem
prudent and reasonable to treat the facts relating to requirement (B) and (D)
as also coming within the purview of such proceeding. 3/
Question 2: If an adjudicative proceeding is required, is a formal APA
hearing required?
1. Section 110(f)(2)(A) of the Clean Air Act stipulates, in part, that a deter-
mination relating to the one year postponement provision of §110(f)(l) shall
be "made on the record after notice to interested persons and opportunity for
hearing . ..." Section 554 of the Administrative Procedures Act (APA)
states as follows:
This section applies ... in every case of adjudication
required by statute to be determined on the record after
opportunity for an agency hearing. ...
Since the language from §110(f)(l) cited above clearly specifies the procedural
requirements set forth in APA §554 it follows that a hearing under §110(f)(l)
must contain all of the procedural elements of an APA hearing. 4/
Question 3: What are the requirements of an APA hearing?
A. Who May Participate?
~3"?The fact that evidence relating to requirement (D) may be legislative
in nature does not prevent it from being treated as adjudicative. See
Davis, Vol. 1 §7.06 at 431 where it is said: "Even where no legal right
to a trial exists, a trial may still be appropriate. The question of whether
to use the method of trial for legislative fact is one of convenience, not
one of legal right."
4/ This view is also contained in a March 19, 1973, EPA memorandum
drafted by Jeffrey H. Schwartz then of the General Counsel's office.
Similarly, in a letter dated June 4, 1973, the agency has gone on the
record as stating that a "formal hearing" is required. See letter of
the Acting General Counsel, dated June 7, 1973, to Arch A. Moore, Jr.,
Governor of West Virginia.
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1. Although §110(f)(l) authorizes no one other than the Governor of a State
in which an affected source is located to petition the Administrator for a
year's suspension, it is not stated that only he or his appointee may appear in
or be a party to the proceeding in which such a request is raised. Indeed,
since the essential characteristic of an adjudicatory hearing is that of drawing
out facts which are not in the public realm, it would seem that any person
who has an interest in the proceeding and who possesses facts which will con-
tribute to a well-reasoned determination should be allowed to be a party to or
intervene in a §110(f) proceeding. Such persons might, for example, include
the proprietor of the source, the executive officer of the community affected
by the source, responsible public interest organizations, and any other per-
sons who have an interest in the proposed suspension and who possesses
pertinent knowledge not known to the foregoing persons.
2. A useful analogy is provided by the definition of "party" as used in §125. 34
of the National Pollutant Discharge Elimination System (NPDES) published
in tne Federal Register on May 22, 1973. NPDES §125. 34(c)(l) states, inter -
alia, that within 30 days following public notice of an adjudicatory hearing to
consider the issuance of a discharge permit application, any person.__5_/ may
submit a request to be a party to such hearing. A request to be a party must:
(i) State the name and address of the person making
such request (§125. 34(c)(2)(i)h
(ii) Identify the interest of the requestor, and any per-
son represented by issuance or nonissuance of the permit
(§125.34(c)(2)(ii))j
(iii) Identify any other person whom the requestor re-
presents (§!25.34(c)(2)(iii));
(iv) Include an agreement by the requestor, and any per-
son represented by the requestor, to be subject to exami-
nation and cross-examination, and in the case of a corpor-
ation, to make any employee available for examination and
cross-examination at his own expense, upon the request of
the presiding officer, on his own motion or on the motion
of any party (§125. 34(c)(2)(iv)h and
(v) State the position of the requestor on the issues to be
considered at the hearing §125. 34(c)(4)).
1T7 The term person, is defined as follows: (2) "Person" shall mean
the State water pollution control agency of any State or States in which
the discharge or proposed discharge shall originate or which may be
affected by such discharge, the applicant for a permit, and any foreign
country, Federal agency, or other person or persons having an interest
which may be affected. §125. 34(a)(l). Compare §302 ot the Clean Air
Act where the definition of "person" is not grounded on any specific
"interest".
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If the above requirements are met, the Administrator must grant the request
to participate as a party. §125. 34(g). 5a/
B. Procedural Requirements
1. The procedural elements which are necessary to a formal APA hearing
are set forth in the Appendix which accompanies this memorandum.
Question 4: What is meant by the phrase contained in §110(f)(l)(D) that "the
continued operation of such source is essential to national secu-
rity or to the public health or welfare?"
A. Preliminary Considerations
As an initial proposition, it should be stated that subsection (d) is one of four
^provisions which must be satisfied before §110(f)(l) assistance can be granted
to a petitioning State. The other three provisions are found in subsections
(A) through (C). Technically, all four subsections must be satisfied for the
Administrator to take remedial action. However, as a practical matter, it
may be that subsection (D) will have little bearing on whether the determina-
tion of the Administrator under §110{f)(l) is ultimately upheld or rejected by
a reviewing court.
This is because once a State has come forward and shown (1) good faith on
the part of the source (§110(f)(l)(A)), (2) the absence of adequate technology
(§110(f)(l)(B)), and (3) its sincere intent to use all available measures to pro-
tect the health of persons in the area affected by the source during the re-
quested suspension period (§110(f)(l)(O), it is submitted that a fair-minded
judge would be hard pressed to uphold the Administrator's denial of §110(f)(l)
relief solely because the State was unable to show that such relief was essen-
tial to either national security or the public health or welfare (§110(f)(l)(D)).
Nevertheless, subsection (D) is part of the statute and must, therefore, enter
into any determination under §110(f)(l).
DISCUSSION
There are three terms in subsection (D) which must be defined if §110(f) is
to be administered with any degree of uniformity: (a) national security; (b)
public health; and (c) welfare._6/ In construing these terms it is important
to keep in mind that they are used in the disjunctive. Accordingly, even
though the continued operation of a source may have little to do with national
security, its continuation may, nevertheless, be justified by reference to either
the public health or the public welfare of persons in the area affected by
the source.
3a7 Following the expiration of the 30 day period referred to above, any
"person" (see note 5 on previous page) may file a motion for leave to
intervene NPDES §125.34(g).
6/ The term "essential" will be considered in conjunction with the terms
enumerated above. Suffice it to say that the dictionary defines "essen-
tial" as meaning "absolutely necessary" or "indispensable." See The
American College Dictionary at 410.
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1. The meaning of "national security".
a. The reference to "national security" as used in §110(f)(l)(D) of the
Clean Air Act does not appear in either the House or the Senate version
of the statute. The Senate bill did, however, embody a provision which
permitted a one year extension where, among other things, the failure
to achieve ambient air quality standards was due to an exemption granted
to a federal facility under §118 of the bill proposed by the Senate. No-
tably, §118 of the Senate bill authorized the Secretary to grant exemptions
to Federal facilities (i.e., Federal property, vehicles or vessels) only^
if such exemption was in the "paramount interest of the United States. "
It is entirely possible that the phrase quoted in the preceding sentence
was the progenitor to what is now the reference to "national security" in
§110(f)(l)(D). If this were so, it could be argued that the "paramount
interest" language was withdrawn infavor of a more limited concept, i.e.,
"national security". Unfortunately, the Senate Committee report fails
to elucidate on what was intended by the phrase "paramount interest" of
the United States. It is, therefore, difficult to draw any conclusions from
the abandonment of such language in the final enactment of the statute.
b. The bill proposed by the Conference Committee did include a reference
to "national security" in terms identical to the language now found in
§110(f)(l)(D) of the Act. 7/ However, the Conference Committee report
sheds little light on why tETs language was adopted or what it was intended
to mean.
c. Given the dearth of legislative history on the matter, it is logical to
look to other sections of the Act which incorporate a "national security"
concept. Hence, although the President has authority to exempt a Federal
emission source from applicable State or national standards if he deter-
mines that such exemption is in the "paramount interest of the United
States, " (see §118 of the Clean Air Act), he may not exempt such source
from the requirements of §112 other than for reasons of "national secu-
rity" (see §112(c)(2) of the Clean Air Act). The strong inference to be
drawn from the above statutory structure is that Congress regarded the
concept of "national security" as being markedly more limited than the
phrase "paramount interest of the United States"-- a phrase which, argu-
ably, also connotes "security-type" overtones. (This, of course, com-
ports with the suggestion raised in paragraph a above. )
d. The conclusion which I draw from the above is that when the Con-
ference Committee chose the term "national security" as one of the §110
(f)(l)(D) prerequisites it intended to restrict that term to matters of the
nation's safety, i_. e. , matters of a military or national defense nature.
This conclusion is consistent with the position taken by this office in de-
fining theterm "national security"for purposes of §203(b)(l). See memo-
randum of Michael A. James, January 24, 1973, in which the following
statement appears at page 3:
7/ See report of the Conference Committee to accompany H.R. 17255 at 8.
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"it appears . . . that the intention of the Congress with respect
to exemption involving 'national security was focused on 'de-
fense-related1 and combat vehicles, and there is no evidence
available of some other purpose " 8/
2. Meaning of "public health".
a. The precursor to §110(f) of the Clean Air Act is found in §lll(f)
(4)(A) of the Senate Bill which, in pertinent part, states as follows:
(4) The Court . . . shall grant relief only if it determines such
relief is essential to the public interest and the general welfare of
persons in [the affected] region, after finding
(A) that substantial efforts have been made to protect the health
of persons in such region . . .
The Senate Committee report, apart from emphasizing that §lll(f)(4) was
designed to serve as a last alternative, does little to illuminate the above
provision. The following excerpt contains pertinent language from the com-
mittee report:
The Committee expects that an extension of time would be granted
only as a last alternative. Therefore, the bill would provide that
the Court could grant relief in the paramount interest of the United
States and in the public interest and general welfare of the persons
in such region only after finding that substantial efforts had been
made to protect the health of persons in such regions . . . 9/
b. The language cited above in both the Senate bill and committee report
bears a close resemblance to what is now §110(f)(l)(C) of the Act and
which reads as follows:
(f)(l) If [among other things] the Administrator determines that
(c) any available alternative operating procedures . . . will re-
duce the impact of such source on public health . . .
then the Administrator shall grant a postponement of such require-
ment.
_8/ Although the term "national security" is used in other statutes, the
propriety of defining it for purposes of the immediate statute, by refer-
ence to such other statutes, is somewhat questionable. See Cole v.
Youngg, 351 U. S. 536 (1956) and discussion of same contained in memo-
randum cited above.
9/ Report on S. 4358, 91st Cong., 2d Sess. at 15.
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c. Both the provision in the Senate Bill and the language which now
appears in §110(f)(l)(C) of the Act speak in terms of protecting the
health of persons in the impacted region during a postponement period.
This concept should be compared with the use of the phrase "essential
to the public health" as it appears in §110(f)(l)(D). In the latter setting,
the term "public health" serves as a basis for determining the necessity
of a requested postponement.
d. From the above, it follows that the term "public health" as used in
§110(f)(l)(D)of the Actwas intended to serve as more than just a directive
to be solicitous of the public health of persons affected by an extension
under §110(f). Rather, it was used in the sense of a very strict pre-
requisite -- i.e., that a continuation would be granted only as a last
alternative and only if such continuation was essential in terms of pro-
tecting and preserving the health and physical well-being of persons in
the affected area.
e. An example of an offending source which might qualify under the "es-
sential to the public health" language of §110 (f){l)(D) might be that of a
hospital which is unable to comply with applicable air quality standards
within the time frame specified by the governing state implementation
plan. Were such a facility to be closed down pending its being brought into
compliance, it is likely that the suspension of its activities would create
a severe health hazard in the community it served. Under such cir-
cumstances, it could reasonably be argued that the continued operation
of the hospital was essential to the public health of the surrounding com-
munity.
f. Another example of a source whose continued operation might be "es-
sential to public health" is that of a power plant. If the power plant con-
stituted a major source of heat and power in the community which it
served then any disruption of its activities would, undoubtedly, have far-
reaching consequences: hospitals would have to strain their auxiliary
power equipment; street lights and traffice signals might be rendered in-
operative; and the community's supply of heat might have to be rationed
even during cold weather months. Given the above, I believe that a very
compelling argument can be made that the continued operation of the power
plant was "essential to public health".
g. A third example of a source which might qualify under the "essential
to public health" language of §110(f)(l)(D) would be that of a municipal
incinerator. Obviously, if such a facility were closed down and large
amounts of refuse were allowed to accumulate, the public health of the
community could easily become imperiled. However, the continued op-
eration of such a facility (pursuant to §110{f)) would only be justified
under circumstances where no reasonable alternative could be developed
for disposing of the community's waste.
3. Meaning of "public welfare".
a. The origin of the term "public welfare" is found in §lll(f)(4) of the
Senate Bill which, in pertinent part, states that "The Court . . . shall
grant relief only if it determines that such relief is essential to the public
interest and the general welfare. " The caution in the Senate Committee
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report that §lll(f)(4) was to be utilized only as a "last alternative" is
underscored by the use of the word "essential" in the passage quoted
above. Accordingly, it is clear that the test contemplated by the Senate
was to be a very strict one.
b. The use of the conjunctive "and" in both the Senate bill and com-
mittee report suggests that the test could be satisfied only by looking
at both the public interest as well as the general welfare of persons in
the affected area. Little additional light is shed by a reading of the
Senate Committee reports.
c. Some guidance asto whatis meant by "essential tothe public welfare"
may be obtained by reference to §202(b)(5)(i) which is the only other
provision of the Clean Air Act in which the word "essential" modifies the
term "public welfare". Section 202(b)(5)(D)(i) reads, in pertinent part,
as follows:
The Administrator shall grant a suspension of [a mobile source emis-
sion standard] only if he determines that such suspension is essential
to the public interest or the public health and welfare.
d. In construing §202(b)(5)(D)(i), the Court of Appeals for the District
of Columbia Circuit has interpreted the term "public interest" to include
the impact of a decision to suspend on "jobs and the economy. " 10J In
turn, these considerations -- and, to much lesser degree, consumer~con-
venience and satisfaction -- played an important role in the April 26, 1973,
decision of the Administrator to suspend the 1975 mobile source emission
standards for one year. See 38 Fed. Reg. 10319, April 26, 1973.
e. Admittedly, the above interpretations were addressed to the term
"public interest" as opposed to public welfare". However, in light of
the dual considerations of public interest and general welfare which are
built into the legislative history of §110(f )(1)(D), it is submitted that what
is meant by "essential tothe public interest" should have a strong bearing
on what was intended by the phrase "essential to the public welfare. " In
addition, in the context of unemployment, the Agency has recently stated,
on the record, that §HO(f) was intended by Congress to prevent . . .
serious unemployment. " ll/
f. Based upon the above, I conclude that the reference to "public welfare"
in §110(f)(l)(D) was primarily intended to cover those situations where
(1) the continued operation of a source is essential to avoid severe un-
employment or grave economic disruption within the region in which the
source is located, and (2) no other alternative exists for preserving the
economic well-being of persons in the affected area.
JO/ International Harvester Co7~v. Ruckelshaus, F2 (C.C.D.C. 1973)
ll/ Letter of Acting General Counsel dated June 7, 1973, to
Arch A. Moore, Jr., Governor of West Virginia.
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g. Although, the term "welfare" is defined in much broader terms in
§302(h), I do not believe that §302(h) was designed to apply to §110(f)(l)
(D). This is because §302(h), by its terms, only applies to those pro-
visions of the Act which are keyed to remedial action designed to reverse
the injurious "effect" of pollution on the public welfare (see, e.g., §§103
(f)(l);108(a)(2)(A); and 109(b)(2)). By contrast, in §110(f)(l)(D), the tables
are reversed and the public welfare is looked to as justification for con-
tinuing a source of pollution.
h. In defining the parameters of the term "public welfare", some con-
sideration should be given to a recent state implementation plan case 12/
in which a one year variance provision designed to satisfy "the public
good or allay undue hardship" 13/ was held to be less restrictive than
the provisions of §110(f) of the Act, and, therefore, inadequate.
12/ See Natural Resources Defense Council. Inc., Project on Clean Air
v. Environmental Protection Agency, F2 (1st Cir.. 1973).
involving implementation plans submitted by Rhode Island and
Massachusetts.
J_3_/ Regulation 50.1, Massachusetts proposed implementation plan.
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APPENDIX
Procedural Requirements of a Formal APA Hearing
[Regulations to follow at a later date. ]
1. Notice
"Persons entitled to notice of an agency hearing shall be timely informed
of -- the time, place and nature of the hearings; (2) the legal authority
and jurisdiction under which the hearing is to be held; and (3) the matters
of fact and law asserted. " 5 U. S. C. §554(b).
In fixing the time and place for hearings, due regard shall be had for the
convenience ... of the parties or their representatives. " 5 U.S. C.
§554 (b).
2. Pleadings and negotiations.
"The agency shall give all interested parties opportunity for . . . the
submission and consideration of facts, arguments, offers of settlement,
or proposals of adjustment when time, the nature of the proceeding and
the public interest permit . . . " 5 U.S. C. §554(c)(l).
3. The presiding officer.
(a) The presiding officer at the hearing may either be an independent
hearing examiner (i. e., administrative law judge) or an employee of the
agency. 5 U. S. C. §556(b).
(b) If, however, an employee of the agency is appointed, that person may
not "be responsible to or subject to the supervision or direction of an
employee or agent engaged in the performance of investigative or pro-
secuting functions for an agency, " nor (except to the extent required by
law for the disposition of ex parte matters) may he "consult a person or
party on a fact in issue, unless on notice and opportunity for all parties
to participate. " 5 U. S. C. §554(d)
(c) "An employee or agent engaged in the performance of investigative
or prosecutive functions for an agency in a case may not, in that or a
factually related case, participate or advise in the decision, recommended
decision, or agency review . . ., except as witness or counsel in public
proceedings. " 5 U. S. C. §554(d). *
* The NPDES regulations imposed the following restrictions on persons serv-
ing as presiding officers:
§125. 34(a)(4)(ii) Qualifications - A judicial officer may be a permanent or
temporary employee of the Agency who performs other duties for the
Agency. Such judicial officer shall not be employed by the office of
enforcement and general counsel or the office of air and water programs
or have any connection with the preparation or presentation of evidence
for a hearing.
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(d) "The functions of presiding employees and of employees partici-
pating in decisions . . . shall be conducted in an impartial manner. . .
A presiding or participating employee may at any time disqualify him-
self." 5 U.S.C. §556(b).
(e) The agency must determine whether the presiding employee should be
disqualified for personal bias, if a good faith affidavit to that effect is
timely filed. The agency shall determine the matter as a part of the
record and decision in the case. 5 U.S.C. §556(b)
(f) "Subject to published rules of the agency and within its powers, em-
ployees presiding at hearings may - -
/
(1) administer oaths . . .;
(2) issue subpoenas authorized by law;**
(3) rule on offers of proof and receive relevant evidence . . .;
(4) take depositions . . .;
(5) regulate the course of the hearing;
(6) hold conferences for the settlement or simplification of the issues
by consent of the parties;
(7) dispose of procedural requests or similar matters.
(8) make or recommend decisions . . .
(9) take other action authorized by agency rule consistent with this
subchapter. " 5 U.S.C. §556(c).
(g) Unless the agency requires, either in specific cases or by general
rule, the entire record to be certified to it for decision, the employee
who presides at the reception of evidence shall make an initial decision
unless hebecomes unavailable to the agency. 5 U.S.C. §554(d); §557(b).
(h) "When the presiding employee makes an initial decision, that decision
becomes the decision of the agency unless there is an appeal to, or review
on motion of the agency within time provided by rule.
On appeal from or review of the initial decision, the agency has all the
powers which it would have in making the initial decision except as it may
limit the issue on notice or by rule. 5 U. S. C. §557(b).
4. Declaratory Orders.
The agency may issue a declaratory order to terminate a controversy
or remove uncertainty. 5 U.S.C. §554(e).
* See §307(a)U) which, for purposes of §110(f) empowers the Administrator
to issue subpoenas for "the attendance and testimony of witnesses and
the production of relevant papers, books and documents. "
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5. Right to Counsel
"A party is entitled to appear in person or by or with counsel or, if
permitted by the agency, by other qualified representative. " 5 U.S. C.
§555(b).
6. Subpoenas
(a) Agency subpoenas authorized by law shall be issued to a party on
request and, when required by rules of procedure, on a statement or
showing of general relevance and reasonable scope of the evidence sought.
(b) On contest, the court shall sustain the subpoena or similar process
or demand to the extent that it is found to be in accordance with law.
(c) In a proceeding for enforcement, the court shall issue an order
requiring the appearance of the witness or the production of the evidence
or data within a reasonable time under penalty of punishment for con-
tempt in case of contumacious failure to comply. 5 U.S. C. §555(d).
(d) A person compelled to appear in person before an agency is entitled
to be accompanied, represented and advised by counsel. 5 U. S.C. §55(b).
7. Notice of Agency Action and Accompanying Explanation.
Prompt notice shall be given of the denial in whole or in part of a written
application, petition, or other request of an interested person made in
connection with any agency proceedings. Except in affirming a prior
denial or when the denial is self-explanatory, the notice shall be accom-
panied by abrief statement of the grounds for denial. 5 U. S. C. §555(e).
8. Burden of Proof.
Except as provided by statute, the proponent of an order has the burden
of proof. 5U.S.C. §556(d).
9. Evidence
Any oral or documentary evidence may be received, but the agency as a
matter of policy shall provide for the exclusion of irrelevant, immater-
ial, or unduly repetitious evidence. 5 U. S. C. §556(d).
10. Sanctions
A sanction may not be imposed or rule or order issued except on con-
sideration of the whole record or those parts thereof cited by a party
and supported by and in accordance with the reliable, probative, and
substantial evidence. 5U.S. C. §556(d).
11. Rebuttal Evidence and Cross Examination.
"A party is entitled to present his case or defense by oral or documentary
evidence, to submit rebuttal evidence, and to conduct such cross-exam-
ination as may be required for a full and true disclosure of the facts.
5 U.S.C. 556(d)
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12. Initial Decision by Agency Rather Than Presiding Employee.
"When the agency makes the decision without having presided at the re-
ception of the evidence [see 3(g) above] the presiding employee . . •
shall first recommend a decision . . . " 5 U. S. C. §557(b).
13. Opportunity to Submit Proposed Findings and Conclusions Prior to Initial
Decision.
(a) "Before a recommended [or] initial . . . decision, or a decision on
agency review of the decision of subordinate employees, the parties are
entitled to a reasonable opportunity to submit for consideration of the
employee participating in the decisions --
(1) proposed findings and conclusions; or
(2) exceptions to the decisions or recommended decisions of sub-
ordinate employees . . .; and
(3) supporting reasons for the exceptions or proposed findings and
conclusions." 5 U. S. C. §557(c).
(b) "The record shall show the ruling on each finding, conclusion, or
exception presented. All decisions, including initial (and) recommended
. . . decisions are a part of the record and shall include a statement of--
(1) findings and conclusions and the reasons or basis therefore,
on all material issues of fact, law, or discretion presented on
the record; and
(2) the appropriate . . . order, sanction, relief or denial thereof. "
5 U.S.C. §557(c).
14. The Record
"The transcript of testimony and exhibits, together with all papers and
requests filed in the proceeding, constitutes the exclusive record for
decision in accordance with section 557 of this title and, on payment of
lawfully prescribed costs, shall be made available to the parties. "
5 U.S.C. §556(e).
In connection with the highly structured, procedural requirements set forth
above, the following paragraph extracted from Page 13 of a memorandum
of Mr. Jeffrey H. Schwartz, dated March 19, 1973, is noteworthy:
"Despite the fact that these procedures may seem somewhat cumber-
some, there is authority for expediting the proceeding.
The requirement of an evidentiary hearing is not a mandate of a pro-
lix procedure protracted beyond the requirements of the issues. Even
in the most formal proceedings a capable hearing officer can evolve tech-
niques that both expedite the proceeding and illuminate the issues. Ma-
rine Space Enclosures, Inc.v. FMC, 420 F. 2d 577, 590 (D. C. Cir. 196"9)
and cases cited.
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TITLE: Number of Postponements Which may be Granted Pursuant to
Section 110{f) of the Clean Air Act
DATE: March 10, 1971
MEMORANDUM OF LAW
QUESTION
This is in response to your recent oral request for our opinion as to whether
the Administrator is authorized to grant multiple postponements of the ap-
plicability of any requirements of an approved implementation plan to a par-
ticular source (or class of sources) under section 110(f) of the Clean Air
Act.
ANSWER
The Clean Air Act authorizes only a single postponement, of not over one
year, of the date on which any implementation plan requirement becomes
applicable to any source (or class of sources).
DISCUSSION
1. Section 110(f)(l) of the Clean Air Act provides:
Prior to the date on which any stationary source or class of moving
sources is required to comply with any requirement of an applicable
implementation plan the Governor of the State to which such plan
applies may apply to the Administrator to postpone the applicability
of such requirement to such source (or class) for not more than
one year. If the Administrator [makes specified determinations], then
the Administrator shall grant a postponement of such requirement.
[emphasis added]
2. The italicized language in subsection (f)(l) suggests that only a single
postponement of the applicability of any implementation plan requirement is
authorized and that such postponement may not exceed one year in duration.
Furthermore, section 110 contains no provision expressly permitting the
extension or renewal of a postponement beyond one year. Had Congress
intended to permit additional postponements, it could have included a pro-
vision similar to that contained in section 112(c)(2), which expressly autho-
rizes the President to extend national security exemptions under that section
"for one or more additional periods".
3. The legislative history of section 110(f) supports the view that no more
than one twelve-month postponement of any plan requirement is authorized
for any source (or class of sources). The Senate passed bill (S. 4358) amended
the implementation plan section to authorize renewable extensions of the dead-
deadlines for achieving national ambient air quality standards. (Sec. Ill
(f)(5): "The court. . .may grant renewals for additional one-year periods. . . ").
However, this provision was deleted in the Conference Agreement, thereby
evidencing Congress' intent not to allow multiple extensions of the deadlines.
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4. The provision on extension of deadlines which ultimately prevailed ap-
parently represents an accommodation between the Senate-passed version
and the concerns raised in Secretary Richardson's letter to the conferees
(Congessional Record, December 18, 1970, S. 20605-6). (The House passed
version contained no deadlines and, therefore, made no provision for ex-
tension. ) In return for permitting an extension at the time of submission
of the implementation plan, as requested by Secretary Richardson, the num-
ber of postponements which could be granted prior to the effective date of
plan requirements was limited to one.
5. Moreover, the "Discussion of Key Provisions" of the Conference Agree-
ment submitted for inclusion in the Congressional Record (December 18,
1970, S. 20600-1) states, in part,
A Governor may apply for a postponement of the deadline, if, when
the deadline approaches, it is impossible for a source to meet a
requirement under an implementation plan. . . Such a postponement is
subject to judicial review, [emphasis added]
6. Use of the singular form in both instances indicates an intention to per-
mit the Administrator to postpone the effective date of any requirement only
once for each source (or class of sources). Compare Senate Report, No. 91-
1196 (on S. 4358, September 17, 1970, p. 15) which states, "The bill would
restrict relief to one-year extensions of the deadline" [emphasis added],
where the plural form was deliberately used to denote the availability of
multiple extensions. The "Discussion of Key Provisions" of the Conference
Agreement, however, makes no reference to any authority to extend or renew
a postponement or for such a postponement to exceed a one-year period.
7. A limitation on the duration and number of postponements available under
section 110(f) is consistent with Congress' broader intent to establish firm
"national deadlines "for the attainment of national primary ambient air quality
standards. (Congressional Record, December 18, 1970, S. 20598). Section
110(a)(2)(A)(i) of the Act specifies that such standard is to be attained "as
expeditiously as practicable", [emphasis added]. See also Senator Muskie's
declaration that
Within four and one-half years, the level of air quality in American
cites, as to these major pollutants, should be adequate to avoid ad-
verse effects on public health. (S. 20600)
8. While only one postponement of the applicability of any particular require-
ment of an implementation plan may be granted for a source (or class of
sources), the Administrator, in our opinion, is not precluded by section 110
(f) from postponing the applicability of other requirements of a plan as to the
same source (or class of sources) for up to one-year. However, it appears
that under section 110(f)(l) any application filed by the Governor of the State
to which the plan applies would have to treat separately each request for a
postponement of each requirement of an implementation plan for each source
(or class of sources). Likewise, that section appears to require the Admin-
istrator to make a separate determination on (although it does not require a
seprate hearing on) each postponement of a particular plan requirement for
a specific source (or class of sources).
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TRANSPORTATION CONTROL PLANS
TITLE: Transportation Control Plans
DATE: August 11, 1972
MEMORANDUM OF LAW
QUESTION #1
What "transporation controls" are the States legally entitled to adopt?
ANSWER #1
The States may enact any transportation controls they choose, unless they
are preempted by Federal law or barred by the Constitution.
QUESTION #2
What limitations are there on the power of a State to prescribe design, equip-
ment, or emission standards for vehicles?
ANSWER #2
States may not directly regulate with respect to emissions of "new" motor
vehicles, or impose requirements which would have the effect of regulating
the manufacture of motor vehicles.
QUESTION #3
What may the Administrator require to be in State plans as a condition of
approval ?
ANSWER #3
The Administrator may disapprove a plan which will not attain or maintain
the ambient air quality standards. In addition, he may prescribe guidelines
indicating what measures must be taken to satisfy him that a given control
will have the effectiveness claimed for it by the State's plan.
QUESTION #4
Are the States obligated to include in their implementation plans regulations
for the "inspection and testing of motor vehicles to assure compliance with
maintenance, warranty, and lead-free fuel requirements"?
ANSWER #4
See Answer #3. Compliance with such "requirements" by individual vehicle
owners is not required by the Act.
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QUESTION #5
What is the extent of the Administrator's authority to promulgate provis-
ions when a plan is inadequate ?
ANSWER #5
The broad language of §110 would appear to result in no statutory restric-
tions on the Administrator's authority to promulgate, as long as the meas-
ures are necessary to attain or maintain in national ambient air quality stan-
dards. Possible constitutional limitations regarding certain measures will
be addressed at a later date.
DISCUSSION
1. If a State chooses to submit an implementation plan, there are certain
required features in common for every plan (e. g., provision for monitoring
systems_l/ and authority to take quick action in an emergency_2/). Apart
from these specifics, the Act broadly requires that the plan be adequate to
insure attainment and maintenance of national ambient air quality standards.
Each State is free to select the kind of control strategy it wishes, which need
not include transportation controls if other provisions are sufficient to attain
and maintain the ambient air quality standards. 3/
2. When the Administrator determines that the State's control strategy
will not attain or maintain the air quality standards, he must publish his
proposed provisions for the implementation plan. If the State submits another
plan in the meantime which can achieve the goals, the Administrator must
approve it and withdraw his proposal. Otherwise he promulgates the plan
(or portions thereof) which he has proposed. 4/
3. The scope of the term "transportation controls" is not delineated in the
Act, but some guidance is provided in the legislative history. Senator Muskie,
in reporting to the Senate on the conference committee bill, stated in the
"Discussion of Key Provisions":
Construction of urban highway and freeways may be required to take
second place to rapid and mass transit and other public transportation
systems. Central city use of motor vehicles may have to be re-
_!/ §110(a)(2)(C).
_2/ §110(a)(2KF)(v).
3/ The Administrator must approve the plan if he determines that:
"it includes emission limitations, schedules, and timetables for com-
pliance with such limitations, and such other measures as may be nec-
essary to insure attainment and maintenance of ... primary or secon-
dary [air quality standards], including, but not limited to, land-use and
transportation controls." §110(a)(2)(B).
_4/ §110(c).
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stricted. In some congested areas the number of operations of air-
craft into an airport may need to be limited, or steps taken to reduce
emissions while aircraft are on the ground. 5/
4. (Answer #1) a. States have broad legislative powers to protect the
health and welfare of their citizens. These powers exist independently of
the Clean Air Act, and are expressly reaffirmed by §116 of the Act:
"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 ^hereof to adopt or enforce (1) any standard or limitation
respecting emissions of air pollutants or (2) any requirement re-
specting control or abatement of air pollution .... " 6/
The Act imposes two restrictions on the States's power: first, they may
not adopt or enforce a standard or limitation which is less stringent than
one in effect under an applicable implementation plan or less stringent than
one under section 111 (new stationary sources) or section 112 (hazardous
air pollutants); second, they may not act where they are specifically pre-
empted.^/
b. It should be noted that §209, which prempts States from imposing
certain limitations on "new" motor vehicles, also provides:
"Nothing in [Part A of Title II] shall preclude or deny to any State
or political subdivision thereof the right otherwise to control, regu-
late, or restrict the use, operation, or movement of registered or
licensed motor vehicles. " 8/
5/ Cong. Rec. S2060Q (daily ed. Dec. 18, 1970).
6/ The three preemptions referred to are quite different in scope. Section
233 flatly prohibits all State standards respecting emissions of air pol-
lutants from aircraft unless the standard is identical to the Federal
standards. Section 209 prohibits State standards relating to the control
of emissions from motor vehicles while they are "new," but allows State
regulation thereafter. See Discussion at notes 10-14, infra. Section
211(c)(4)(C) prohibits States (except California) from prescribing or at-
tempting to enforce, for purposes of motor vehicle emission control,
any control or prohibition respecting use of a fuel or fuel additive if
the Administrator has found that no Federal control or prohibition is
necessary, and has published his finding, or if the Administrator has
prescribed a control or prohibition and the State's is different. However,
a State may regulate motor vehicle fuels or additives if the Administrator
finds that the State control or prohibition is necessary to achieve ambient
air quality standards and it is part of an applicable implementation plan.
_7/ §116.
8/ §209(c).
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5. jAnswer #2) Some type of State enforcement of vehicle emission stand-
ards is clearly contemplated by §207 which conditions the mandatory per-
formance warranty on the vehicle owners having to bear a "penalty or other
sanction . . .under State or Federal law." 9/ As noted above, however,
section 209(a) prohibits State standards relating to control of emissions
from new motor vehicles or engines. _!£/ As we have previously advised
at a reasonable time following initial retail sale (e. g., one year after such
sale or upon second sale, second titling, or second registration), a State
is free from any preemption. Ill
6* (Answer #3) There is no warrant in the Act for the Administrator to
insist that a State adopt a particular kind of transportation control or other
measure, if the State can show that the measures which it selects will attain
and maintain the required ambient air quality standards. The Administrator
may decide that he cannotaccept the State's assertion that a particular meas-
ure will cause a certain reduction in air pollution. He might, for example,
conclude that for vehicle emission standards (Federal or State) to have any
quantifiable effect on air quality, it is necessary for the State to make
violation of these standards by in-use vehicles illegal, to set up an adequate
inspection program to enforce the standards, or to require certain periodic
maintenance. Nothing in the Act prohibits EPA from laying down any such
guidelines specifying what it will accept as being adequate to "insure" that
air quality standards are met and protected. The question whether such
guidelines must be published in the Federal Register pursuant to 5 USCA
§552(a)(l)(D) cannot be resolved until the guidelines are formulated.
_9/ §207(b)(2)(C).
10/ A "new motor vehicle" is defined in §213(3) as one the equitable or
legal title to which has never been transferred to an ultimate purchaser.
(Slightly different rules to imported cars).
Ill §116 and §209(a) make clear that there is no federal preemption of
State emission standards generally, and of State regulation of motor
vehicles in particular, except where expressly specified. See Discus-
sion at notes 8-9, supra. The 1970 Senate bill would have "given to the
Federal government the exclusive authority to certify devices for used
cars, leaving the States free to decide whether to require the devices.
S. 4358, §211(c), as printed in S. Rep. No. 91-1196, 91st Cong., 2d
Sess. 114-115 (1970). It contemplated, according to the General State-
ment in the committee report, that when "such devices had been cer-
tified, States with difficult problems could examine the value of re-
quiring used vehicles operating within that State or region to install
such devices or systems." Id. at 32-33. But the Senate-House con-
ferees deleted from the bill all provisions for certification of retrofit
devices by the Federal government; in addition, they left unchanged
from the 1967 Act the provisions preempting State emission control for
new vehicles only. According to an analysis of the conference com-
mittee bill inserted in the Congressional Record by Senator Muskie
the reason for continuing preemption in the case of new motor vehicles
was the "need for uniformity and the inability of manufacturers to pro-
duce different types of vehicles for a number of States." Cong. Rec
S20606 (daily ed. Dec. 18, 1970). a
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7. (Answer #4) a. As noted in paragraph 6 of this Discussion, the only
required provisions in implementation plans are those needed to insure that
a given part of a control strategy will meet ambient air quality standards.
This applies to inspection and testing 121 to meet emission standards, to
transportation controls, and to all other measures.
b. Regarding possible State requirements designed to enforce compliance
with maintenance or warranty requirements or lead-free fuel requirements,
it must be understood that there are no such requirements imposed by the
Act upon the individual vehicle owner. §207 makes maintenance a pre-
requisite to recovery by the owner against the manufacturer under the
mandatory performance warranty, §207(b), and a pre-condition to the Ad-
ministrator's issuance of a notice of non-conformity to the manufacturer
for recall, §207(c), but no affirmative duty to maintain is imposed by
the Act on the individual owner or operator of a vehicle. There is no
Federal lead-free fuel requirement which applies to the individual owner
or operator. The Administrator's power under §211(c)(l) is to regulate
"the manufacture, introduction into commerce, offering for sale, or sale
of any fuel or fuel additive for use in a motor vehicle . . . . " This is
'to be implemented by proposed regulations contained in 37 Fed. Reg.
3882 (February 23, 1972), none of which extend to the vehicle owner.
8. (Answer #5) There would seem to be no statutory restrictions on the
kinds of measures which the Administrator may promulgate, since the terms
"transportation controls" and "other measures in §110(a)(2)(B) are so broad,
as long as such controls or measures are found to be "necessary" within the
meaning of that provision. There may be constitutional limitations on the
Administrator's power to promulgate certain types of controls (e.g., parking
taxes). We are in the process of examining these matters.
"127 "Inspection/maintenance" is not a term used in this Memo, for it is
not used in the Act, and the "maintenance" aspect of it implies a great
deal which may not be supportable in the Act. For one thing, it is
possible to have provisions for inspection and enforcement, without having
regulations expressly requiring the maintenance to be done; maintenance
thus would be obtained only to the extent that motorists felt it neces-
sary to pass inspections. On the other hand, a State might make mainte-
nance an affirmative requirement in itself, with prosecution for failing
to meet periodic maintenance requirements whether or not needed in
the case of the individual automobile. Therefore, this Memo uses words
of the Act: "inspection" or "inspection and testing. "
§§§§§§§
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TITLE: Legal Authority to Promulgate and Enforce Transportation
Controls
DATE: February 28, 1973
MEMORANDUM OF LAW
FACTS
On January 15, 1973, the Administrator proposed a plan to achieve the pri-
mary national ambient air quality standard for photochemical oxidants in
the Metropolitan Los Angeles Intrastate Air Quality Control Region (South
Coast Air Basin) by 1977. 38 Fed. Reg. 2194 (January 22, 1973). Some of
the measures proposed were necessarily extreme ones. Questions have been
and will be raised concerning the Administrator's legal authority to carry
out these or alternative measures, or to require the State to do so. These
problems were recognized in the preamble to the plan:
Questions also exist as to EPA's authority and capability for actual
implementation of this proposal and of alternatives. These questions
include the extent to which State or local governments should be re-
quired to perform functions contemplated by the proposal and the dif-
ficulties involved in Federal or State enforcement of the plan. 38
Fed. Reg. 2194, 2198.
This Memorandum outlines the legal framework within which promulgation
and enforcement may be carried out. As the discussion below indicates,
we feel that the Administrator may take a wide variety of actions. However,
this is a new Act with no body of case law providing firm guidance on its
scope. Legal challenge to the plans promulgated is inevitable, and chances
of losing some of the challenges are not to be discounted. It is difficult
to predict in any particular case whether a court will find grounds for over-
turning EPA promulgations of specific measures which we may have felt
to be authorized. However, we feel that the risks may be minimized by the
choice of some transportation controls rather than others, and by the choice
of some rationales rather than others.
QUESTION #1
In promulgating an implementation plan or portion thereof, does the Admin-
istrator have the authority to require automobile owners and operators to
install "retrofit" pollution control equipment on their automobiles (catalytic
converters, evaporative controls, gaseous fuel conversion, etc.) to require
that vehicles be tested and/or inspected periodically and maintained, and
to require reductions in vehicle miles traveled through various means (regis-
tration limits, gasoline rationing, parking restrictions, road-use restric-
tions, or fees) ?
ANSWER #1
For the most part, yes. Reading section 110(c) together with section 110(a)
(2)(B), the implementation plan promulgated by the Administrator is to con-
tain emission limitations, schedules, and timetables for compliance with such
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limitations, and such other measures (including land use and transportation
controls) as may be necessary to insure attainment and maintenance of the
national standards. While the issue is not free from doubt as to fees, the
scope of this authority appears broad enough to encompass most of the con-
trol techniques listed in Question #1. In addition to the broad reach of
section 110(a)(2){B), there is possible additional authority for inspections
and testing in section 110(a)(2)(G), and for fuel rationing in section 211. The
Administrator's authority is, however, limited by a requirement of reason-
ableness.
QUESTION #2
Does the Administrator have the authority to impose on a State a require-
ment to institute the controls listed in Question #1 ?
ANSWER #2
In many instances, yes. We believe that a legally supportable position would
be that a highway, road, or public parking lot is a public facility" owned
or operated by the State or locality and that the State or locality can be made
responsible for reducing private automobile emissions generated on and by
the use of that facility.
QUESTION #3
Does the Administrator have the authority to require a State to provide
expanded mass transit facilities, or to include provisions for Federal or
State cooperation in a plan ?
ANSWER #3
We do not believe that adequate authority exists under the Clean Air Act to
require a State to provide expanded mass transit facilities. On the other
hand, the Administrator's plan may point out the need for mass transit im-
provements to implement.
DISCUSSION - GENERAL
1. The Administrator must promulgate a plan if the State plan is inadequate
If a State fails to submit an implementation plan or if the Administrator
determines a State plan, or any portion thereof, not to be in accordance
with the requirements of section 110, the Administrator "shall . . . promptly
prepare and publish proposed regulations setting forth an implementation
plan, or portion thereof, for [the] State . ..." Clean Air Act, 110(c). If
the State fails to submit an approvable plan within the time specified in the
law, the Administrator must promulgate the Federal plan. Id.
2. A promulgated plan must meet the ambient air quality standards. The
plan must satisfy the criteria of"section I10(a)(2). The Administrator is
authorized to promulgate whatever measures are needed for these pur-
poses.
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a. Standards
In order to be the "applicable implementation plan" for purposes of enforce-
ment by the Administrator under section 113, the approved or promulgated
plan must be one "which implements a national primary or secondary ambient
air quality standard in a State. " §110(d).
The "Summary of the Provisions of Conference Agreement on the Clean
Air Amendments of 1970" inserted into the Congressional Record by Senator
Muskie, provided:
The Administrator has six months to approve a submitted implemen-
tation plan or if no plan is submitted or the plan is inadequate, tp_
substitute a plan of his own. The plan must be designed to achieve
the level of air "quality established by the primary standard within
three years" and must include a description of steps which will be
taken, including transportation and land use controls, emissions re-
quirements, and other enforcement procedures. 116 Cong. Rec.
S20600 (daily ed. Dec. 18, 1970) (emphasis added).
b. Criteria
The original House bill contained provisions similar to the present Act which,
it was explained on the House floor, provided that "the Secretary himself
may institute an acceptable plan" if the State failed to do so. 116 Cong. Rec.
H5346 (daily e"d. June 10, 1970) (remarks of Mr. Quillen, emphasis added).
The most clear-cut statement of this responsibility is contained in the Sec-
tion-by-Section Analysis in the committee report accompanying the Senate
bill which was, in all respects relevant here, the same as the bill eventually
enacted. Concerning the provision for promulgation of a federal plan, the
Analysis provided:
Regulations published and promulgated by the Secretary must
be consistent with the criteria set forth in subsection (a)(2) of
this section! S. Rep. No. 91-1196, 91st Cong., 2d Sess. 55
U970) (emphasis added).
The criteria referred to were the ones which an appropriate State plan must
meet.
c. Authority
Since the Act clearly requires the Administrator to promulgate a plan which
will meet the criteria of section 110(a)(2) (to be discussed below in paragraph
3), it must be read as giving him the authority to do so. I/
_T/ Any doubts which may remain are resolved by the general rulemaking
authority given the Administrator in section 301 (a): The Administrator
is authorized to prescribe such regulations as are necessary to carry
out his functions under this Act. "
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Prior to the passage of the House and Senate versions of the bill which later
became the Clean Air Act, the federal power to promulgate a plan was de-
scribed by proponents in various ways. "[T]he Federal Government will
step in and establish a plan for such State." 2/ n[T]he Federal Government
will take over and make rules and regulations amounting to a State plan. " 3/
"[T]he Secretary him self will have the authority to go in and set the plan. "~4/
"The Committee bill . . . would provide for the substitution of Secretarial
authority .... " 5/ u[T]he Secretary must have the authority to replace all
or any portion of any implementation plan .... " 6/ It appears, then, that
the authority to promulgate is as broad as needed to meet the national stand-
ards and the other criteria of section 110. Nowhere in the Act or its history
is there the slightest indication that Congress intended to limit the authority
of the States or the Administrator with respect to the adoption of measures
needed to fulfill the purposes of the Act, namely, the attainment and main-
tenance of the national ambient air quality standards.
3. The criterion of section 110(a)(2)(B), which provides that plans contain
such other measures as may be necessary . . . including . . . trans-
portation controls, " is broad enough to encompass whatever measures"
are necessary to achievejfoejyurposes of the Act.
The Clean Air Act's criteria for an approvable plan include:
emission limitations, schedules, and timetables for compliance with
such limitations, and such other measures as may be necessary to
insure attainment and maintenance of [the] primary or secondary
standard, including, but not limited to, land-use and transportation
controls .... §110(a)(2)(B).
Since "transportation controls" are among the tools available to the States
or the Administrator in devising an implementation plan which would achieve
the national standards, the legislative history can also shed some light on what
the term was intended to encompass. The excerpts below do not specifically
refer to EPA-promulgated plans, but were made in general discussions of the
contents of plans.
The Senate committee said that an implementation plan
should insure . . . that moving sources will be located and operated
so as not to interfere with the implementation, maintenance, and en-
forcement of any applicable air quality standard or goal. S. Rep.
No. 91-1196, 91st Cong., 2d Sess. 12(1970).
_2/ 116 Cong. Rec. H5352 (daily ed. June 10, 1970) (remarks of
Mr. Staggers).
3/ Id. (remarks of Mr. Springer).
4/ Id. at H5356 (remarks of Mr. Rogers).
5/ STVep. No, 91-1196, 91st Cong. 2d Sess. 12 (1970).
"BY Id. at 14.
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The committee indicated that it realized "that changes or restrictions in
transportation systems may impose severe hardship on municipalities and
States . . . ." Id. at 13.
Some regions may have to establish new transportation programs
and systems combined with traffic control regulations and restric-
tions in order to achieve ambient air quality standards .... Id.
The Committee urged that other Federal agencies cooperate to alleviate the
hardship through "any relevant program assistance. " Id.
The same committee seems to have specifically foreseen a situation as drastic
as that in Los Angeles, at least for the short term:
The bill recognizes that a generation--or ten years' production--of
motor vehicles will be required to meet the proposed standards.
During that time, as much as seventyfive percent of the traffic may
have to be restricted in certain large metropolitan areas if health
standards are to be achieved within the time required by this bill.
Id. at 2 (emphasis added).
Senator Muskie, the chief architect of the Act, said that the ambient stand-
ards
will require that urban areas do something about their transportation
systems, the movement of used cars, the development of public
transit systems, and the modification and change of housing patterns,
employment patterns, and transportation patterns generally. 116
Cong. Rec. S20603 (daily ed. Dec. 18, 1970).
He also envisioned, "Central city use of motor vehicles may have to be
restricted. " Id. at S20600.
The above excerpts make clear that, at least with regard to State-submitted
plans, the term "transportation controls" encompasses whatever regulation
of motor vehicles is necessary to achieve the necessary improvement in air
quality. It is our conclusion that the same broad scope applies to EPA-
promulgated plans. Thus, emissions from individual cars may be limited,
as well as the use of the cars and the "vehicle miles traveled." 7/
TJ Agency regulations promulgated in August 1971 required that each im-
plementation plan "set forth a control strategy which shall provide for
the degree of emission reduction necessary for attainment and main-
tenance of the national standard," 40 CFR §51.14(a)(l), and defined
"control strategy" to include:
(4) Changes in schedules or methods of operation of commercial or
industrial facilities or transportation systems ....
(5) Periodic inspection and testing of motor vehicle emission control
systems ....
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DISCUSSION
4. Under section 110(a)(2)(B) the Administrator may promulgate measures
to reduce emissions of pollutants from individual vehicles (retrofits,
gaseous fuel conversion, periodic testing and/or inspections) and mea~
sures to reduce the number of vehicles (registration limits) or the number
of miles traveled by vehicles (rationing, parking restrictions, road-use
restrictions). (Question #1) ~
Generally, pollution can be lessened either by the reduction (or cleansing)
of emissions from individual sources or by the reduction of the use (operation)
of the sources. _8/ Both techniques have been used by the States and by the
Administrator in regard to stationary sources, and havelongbeen considered
as proper controls under section 110(a)(2)(B).
Each control techniques discussed below for mobile sources would qualify
as the type of control authorized or required by section 110(a)(2)(B), but
the imposition of "fees" or price increases may be less likely to withstand
judicial review. In this paragraph, the controls are discussed as they would
be imposed by EPA upon the mobile sources. In paragraph 6 the issue of
requiring the State to institute and enforce the controls is discussed.
a. Cleansing of emissions from individual sources
A regulation requiring that emissions of pollutants from an individual source
be reduced through cleansing can take two general forms. It can specify
(footnote 7/ continued from previous page)
(6) Emission control measures applicable to in-use motor vehicles,
including, but not limited to, measures such as mandatory maint-
enance, installation of emission control devices, and conversion to
gaseous fuels.
(7) Measures to reduce motor vehicle traffic, including, but not
limited to, measures such as commuter taxes, gasoline rationing,
parking restrictions, or staggered working hours.
(8) Expansion or promotion of the use of mass transportation
facilities. . . .
(9) Any land use or transportation control measures not specifi-
cally delinerated herein.
Id. at §51.1(n).
8/ A third technique is to disperse or redistribute pollution. In this cat-
egory are control techniques such as relocation of stationary sources
to less polluted areas and the redistribution of traffic from one part of
a city to another. It is possible that neither of these would, however,
be permitted if the non-degradation decision of Sierra clubv. Ruckelshaus,
344 F. Supp. 253 (D.D. C. 1972), aff'd, ~ F.2d (D.C. ClrT,
Nov. 1, 1972), cert, granted (Jan. T5, 1972), is affirmed by the Supreme
Court.
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the amount of a pollutant that may be emitted (either in absolute terms,
such as tons per hour, or in terms of the required reduction, such as an
85% reduction), or it can specify the control equipment which must be in-
stalled. The first of these is clearly an "emission limitation" within the
meaning of section 110(a)(2)(B). If the second is not an emission limitation,
it is an "other measure" under that section. Both techniques are used for
stationary source control, and both are applicable for mobile source controls.
Inspections or testing can be used in support of either technique.
(1) Emissions Limitations or Standards
Emissions standards for new vehicles are set by the Agency pursuant to
section 202 of the Act. States generally are preempted from setting such
standards by section 209, but they may set standards for other vehicles at a
reasonable time following initial retail sale._9_/ If necessary, the Adminis-
trator could promulgate a provision for an implementation plan setting such
standards for in-use vehicles under section 110(a)(2)(B). This would be
identical to already-promulgated requirements that stationary sources limit
pollutant emissions to specified amounts. 10/
(2) Retrofits and Gaseous Fuel Conversion
A requirement that vehicle owners install retrofit devices approved by the
Administrator would also be authorized under section 110(a)(2)(B) and would
be identical to the requirement that stationary source owners install con-
trol equipment approved by the Administrator, ilj
(3) Inspections and Testing
Although "inspections" and "testing" are aften conducted as part of the same
program, there are two different kinds of action which deserve separate
labels. An "inspection" may denote an examination to determine whether
control systems are installed, operating, and properly adjusted. A "test"
may denote a sampling of emissions to determine whether they fall below a
standard applicable to the class of vehicles involved. 12/ Either or both can
be required under section 110(a)(2)(B).
of See memorandum from John E. Bonine to Joel Horowitz and Ronald
Venezia, "Transportation Controls, " August 11, 1972, at 5, note 11.
1QJ See, e.g., 37 Fed. Reg. 15094, 15098 (July 27, 1972) (zinc smelters,
T3aho).
Ill The Administrator has promulgated requirements for Louisiana that
waste gas disposal systems of a certain size must incinerate the waste
gas stream "by a smokeless flare or other device approved by the Ad-
ministrator. " 37 Fed. Reg. 23085, 23097"TOct. 28, 19T2") (emphasis
added).
12 / Inspection and testing of stationary sources is carried out under section
114 of the Act.
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Separate authority for testing to meet emission standards can be found in
section 110(a)(2)(G), which recites that one of the criteria which must be
met by an applicable implementation plan is that
it provides, to the extent necessary and practicable, for periodic
inspection and testing of motor vehicles to enforce compliance with
applicable emission standards . . . . 13/
b. Reductions or limitations on the operation of mobile sources
The transportation problem in some regions cannot be solved at this time
simply by reductions in the emission of pollutants from individual vehicles
through 'retrofit" devices. In these regions, reduction in the vehicle miles
traveled (VMT) provide the only means for adequately reducing overall pol-
lutants emitted into the ambient air. Similarly, since growth in the number
of sources can offset any emission control device which is less than 100%
effective, some procedure for identifying new sources and for limiting both
their number and the amount of their operation is clearly appropriate in order
to maintain the ambient standards.
Methods of achieving these reductions, or limitations in VMT are classically
called "transportation controls, " which the legislative history indicates that
Congress intended if necessary. (See paragraph 3, supra.) The only ques-
tions in this area relate to exactly which means are appropriate to achieve
them. Methods which have been suggested include limitations, reductions
or use requirements for gasoline, parking spaces, road space (bus lanes)14/
and vehicles registered. Each of these may be accomplished directly through
regulatory provisions, or indirectly through raising their cost either by
"minimum price control" or "use fees. " Our conclusion, spelled out below,
is that the direct means are preferable.
(1) Registration limits imposed on individuals
Sections 110(a)(2)(D) and 110(a)(4) of the Act require that implementation
plans contain authority to prevent the construction or modification of any
new source "to whicha standard of performance under section 111 will apply. '
Since that requirement alone would not insure maintenance of the ambient
standards, EPA regulations pursuant to section 110(a)(2)(B) require that a
13/ To apply an inspection system under this subsection to all vehicles it
must be assumed that "applicable emission standards" refers not only
to the Federal standards for older cars under an implementation plan.
The use of this subsection would seem to require an emission standard
"applicable1 to each class of vehicles required to be inspected.
14/ Note that the vague term "mandatory car pooling" is not used here.
Without specification of enforcement measures, the term has no meaning.
"Mandatory car pooling" could be enforced through restrictions on non-
carpools on freeways and in parking. No other type of regulation seems
viable. Of course, all measures to reduce VMT can be expected to re-
sult in increased car-pooling.
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State have authority to block any stationary source if its emissions will "pre-
vent the attainment or maintenance of a national standard. 15_/ The Admin-
istrator has promulgated provisions of implementation plans allowing him
to limit the number or kind of stationary sources in some instances. 16_l An
equivalent procedure for mobile sources would be a procedure for EPA regis-
tration of vehicles, with a limitation on the number of vehicles registered
within a region. Such a procedure would be authorized under section 110(a)
(2)(B) to attain and maintain the ambient standards. A reduction in the
number of automobiles registered might be legally supportable, but would
present other problems which make it an unlikely policy choice.
(2) Limitation or reduction in gasoline use and requirement for
allocation (rationing) ~ ~~
As pointed out above, the Act authorized the imposition of "such other meas-
ures as may be necessary. " Limiting the number of vehicle miles traveled
by the use of fuel limitations would be one such measure. 17/ The fact that
the lack of gasoline will cause motorists to curtail drivfng is not a ground
for finding that the promulgation of gasoline rationing is beyond the statutory
power of the Administrator. As the Senate Report stated, in discussing the
possible consequences of controls on stationary sources under the Senate
version of the bill that later became the Clean Air Act Amendments of 1970,
the Committee "determined that existing sources of pollutants either should
meet the standard of the law or be closed down. " S. Rep. No. 91-1196,
91st Cong., 2d Sess. 3 (1970). Expectations of similar major restrictions
on traffic were quoted earlier in this memorandum.
The objection that sellers of the polluting fuel should not be regulated, but
only the actual user, lacks force under the Act. Congress specifically
recognized the need in some situations to regulate the seller of a polluting
fuel. (See section 211(c)(l). ) Moreover, if necessary for administrative
reasons, it is appropriate to impose requirements on non-polluters whose
activities are elements in a chain which results in pollution by others. Again,
157 For a discussion of the legal basis in section 110(a)(2)(B) of this ex-
panded requirement, see Memorandum from G. William Frick to
Thomas B. Yost, "Preconstruction review authority required for im-
plementation plans, " February 2, 1972.
16/ See, e.g., 37 Fed. Reg. 23085, 23087 (October 28, 1972) (Louisiana).
17/ The leading case involving World War II rationing was L.P. Steuart &
Bro. v. Bowles. 322 U.S. 398, 64 S. Ct. 1097, 1100 (1944), in which
the question of constitutional power was not discussed, but assumed.
Several lower court decisions upheld the rationing. For example, in
O'Neal v. United States. 140 F.2d 908, 911-12 (6th Cir. 1944), the
court held that the power to ration could be delegated to the executive.
The court explicitly stated that the constitutional basis for the rationing
was the legislative power of the Congress, not the war power of the
President. The only question, then, is whether the Clean Air Act's
words are broad enough to grant the rationing power to the Adminis-
trator.
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the Act does not confine its authority to emission limitations, but extends
to "other measures. "18/
Gasoline "rationing" should not be viewed as necessarily involving coupons.
If gasoline rationing were instituted at the supplier level without other pro-
visions, issues of allocation and price level would be left unresolved. These
can be dealt with in several ways: by allowing prices to rise due to reduced
supply, but permitting the market economy to allocate the remaining supply;
by allowing prices to rise and the market economy to allocate the supply,
but levying fees" on the sellers to absorb the windfall profits that would
otherwise occur; by imposing maximum price controls and permitting allo-
cation to be handled on a first come-first served basis; or by issuing coupons
to consumers for the allocation of supply (trational rationing), which would
also tend to keep the price down due to lessened demand for legal gasoline.
It should be pointed out that there may be no obligation for EPA to choose
18/ In addition, section 211(c)(4)(c) provides:
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 applicable implementation plan for such State under section 110
so provides. The Administrator may approve such provision in an
implementation plan, or promulgate an~im.plementation 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.
This subsection may be read either as granting authority to the Ad-
ministrator or as recognizing that he has such authority under other
provisions of the law--presumably section 110, but possibly section 211
(c)(l). In any case the result is the same. If, however, his authority
stems from section 211(c)(l), he may be required to make the findings
required by other subsections of section 211(c), namely that the "emis-
sion products of such fuel ...will endanger the public health or wel-
fare, " §211(c)(l)(A) (a standard more stringent than the requirement
that ambient air quality standards "protect" the public health and wel-
fare, §109(b)), that he has considered "all relevant medical and sci-
entific evidence available to him," §211(c)(2)(A), and (to the extent
rationing is viewed as a prohibition rather than as a control) that "such
prohibition will not cause the use of any other fuel. . .which will produce
emissions which will endanger the public health or welfare to the same
or greater degree, " §211(c)(2)(C).
Although there is no indication in the legislative history that Congress
specifically envisioned that this subsection might be used as the basis
for rationing gasoline, the words of the statute are broad and would
prove difficult to be read as not encompassing such power. The con-
trol or prohibition provided for by this subsection is for the "purposes
of motor vehicle emission control. "
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among these alternatives. The choice could be left up to the State, with
EPA simply restricting the overall supply available. Indeed, it may be
argued that to go further than the simple restriction on overall supply may
be unnecessary and thus not authorized (see paragraph 5, infra). The scheme
of the Act tends to support maximum State decision-making.
(3) Limitations or reductions in private parking spaces ami
requirements for allocation
Since the existence of private parking spaces is a direct incentive and pre-
condition to automobile travel, the Administrator could order a limitation
or reduction in their number under section 110(a)(2)(B). The limitation of
new construction would be similar to any other "new source review" pro-
vision of a plan. The reduction would be based on the same rationale as gas
rationing, with the same consideration arising as to whether EPA should
dictate a method of allocation. 19/
(4) Limitations, reduction, and allocation of road space (bus and
carpool lanes, restricted access) or public parking
The existence of plentiful road and public parking space is, of course, an
incentive to automobile travel. Limitations, reductions, or required allo-
cations would be mandated on the ground that they can be considered pollu-
ting facilities of the State. (For further discussion of this rationale, see
paragraph 6, infra. ) A limitation on the construction or modification of
roads and public parking facilities would be identical to any other "new source
review" under section 110(a)(2)(B) if necessary. The notion of such a limi-
tation with regard to highways can also draw some support from section 109 (3)
of the Federal Aid Highway Act:
The Secretary [of Transportation], after consultation with the Admin-
istrator of the Environmental Protection Agency, shall develop and
promulgate guidelines to assure that highways constructed pursuant
to this title are consistent with any approved plan for the implemen-
tation of any ambient air quality standard for any air quality control
region designated pursuant to the Clean Air Act, as amended. Pub. L.
No. 91-605, 84 Stat. 1735, 23U.S.C. §136(b).
T9"7 For example, it has been suggested that employers be required to "in-
stitute" car pooling and make their parking lots available only to per-
sons in car pools. However, the goal of reducing the number of vehicles
driven could be achieved simply by requiring a specified reduction in
spaces. It may be argued that a business should be left to decide how to
allocate its remaining parking spaces among its employees, subject of
course to State regulations, and that for EPA to specify "carpooling" as
the system of allocation goes beyond what is necessary to achieve the
reduction^. On the other hand, a more acceptable EPA regulation might
be one which gave each employer a choice--either to limit (or reduce)
the number of spaces outright or to impose allocation requirements which
resulted in a usage limitation (or reduction).
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Although the Department of Transportation's guidelines have not been pro-
mulgated, consultation with EPA has begun on their content.
A reduction in public parking space (e. g., on-street parking) is justifiable
just as with private parking. Again,~allocation of remaining spaces might
best be left to the State as the owner of such facilities.
Reduction in road and highway facilities outright are unlikely, but EPA could
offer the State this choice: either reduce the overall facilities available or
impose allocation requirements which EPA believes will result in the nec-
essary usage reduction. (The offering of this choice avoids the objections
to EPA allocation decisions, discussed under gasoline rationing, paragraph
4b(2), pages 13-14, supra.) Such allocation requirements could include
bus andcarpool lanes, as well as restricted access for certain vehicles dur-
ing certain hours. 2O/
Such changes in normal transportation patterns may have been envisioned by
Senator Muskie, the principal author of the Act:
If such [transportation] controls are required, the committee believes
the plan for implementation should so provide. If the plan is ap-
proved, Congress expects the Federal regulatory agencies to take
the steps necessary to assure compliance with the plan; because what
is involved in these greater urban areas is the whole complex of res-
idential patterns, and transportation patterns--the way in which"
people move about, go to their work, and live--and ail of this ought
to be subject to modification, and must be modified if the objective"
of clean air is to be achieved. 116 Cong. Rec. S20609 (daily ed.)
(December 18, 1970).
(5) Raising the cost of vehicle ownership, gasoline, parking, or road
use by price controls or use "fees"
A more indirect method of encouraging a reduction in vehicle miles traveled
and maintaining the reduction would be the imposition of stringent "minimum
price controls or stringent "use fees" on gasoline, parking, road use, or
vehicle ownership. Such measures raise three questions: (a) Are they con-
stitutional? (b) Are they a power granted to the Agency by the Clean Air
Act? (c) Are they "unnecessary" controls? It is difficult to predict what
grounds a court would choose for striking down a regulation which it found
onerous, but these measures do seem less certain of being upheld than the
direct restrictions discussed above.
20 /This restriction on the operation of certain vehicles during smog-prone
hours of the day maybe more defensible than a plan for imposing ' stag-
gered work hours" or a four-day work week. See subparagraph 4b(6),
infra, p. 18.
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(a) Const!tutional issues
There is a possibility that such fees would be ruled in a lower court as an uncon-
stitutional delegation of Congressional authority "to lay and collect taxes. "21/
Constitution, Art. I, Section 8, Clause 1. However, the courts have shown
themselves willing to view such impositions as a sanction rather than a tax
if regulation is the primary purpose of the statute, £<2/ and thus within the range
of possible delegation to an agency. (In most instances, however, the statute
itself has established the sanction or fee. ) Delegations of price control authority
are commonplace and would appear to raise no constitutional question. 23/
(b) Statutory authority
It may effectively be argued that such fees are simply another control measure
authorized by section 110(a)(2)(B) of the Clean Air Act. While it is not possi-
ble to say with assurance that they are not within section' 110(a)(2)(B), a court
could hold that the delegation of such power should be spelled out specifically
rather than generally. Nonetheless, it is true that in United States v. Grimaud,
220 U.S. 506, 31 S. Ct. 480(1911), the Court sustained the power of the Sec-
retary of the Interior to establish a fee for grazing sheep in the national forests,
finding both constitutionality and sufficient Congressional intent in one act which
simply gave the Secretary the power to make rules "to insure the objects" of
the national forests, to regulate their occupancy and use, and to preserve them
from "destruction, " and perhaps relying on another act which indicated that
"[a]ll money received from. . . the use of any land . . . shall be covered into
the Treasury of the United States. " Id._ at 484, 481. Price control authority
has been delegated to several agencies by Congress, but no cases have been
found either affirming or rejecting the proposition that prices may be controlled
under a broadly worded statue like the Clean Air Act which does not itself
mention prices. A potential conflict between putative EPA authority and au-
thority of other price control agencies might also cause a court to look skep-
tically at EPA's claim.
21/ However, non-delegation is not a doctrine with much force today. "In
only two cases in all American history have Congressional elegations
to public authorities been held invalid" [by the Supreme Court]. 1 Davis,
Administrative Law Treatise at 76, §2.01.
22] See, e.g., Rodgers v. United States, 138 F. 2d 992, 994 (6th Cir. 1943),
aff'd, 332 U.S. 371, 68 S. Ct. 5 (1947). In this case, a penalty fee
of three cents for each pound of cotton sold in excess of a farmer's quota
was involved.
23/ For prices in general. Economic Stabilization Act of 1970, 84 Stat. 799,
transportation by air, 49 U.S. C. §1373, transportation by rail, 49 U.S. C.
§15, transportation by motor carrier, 49 U.S. C. §316, foreign trade,
49 U.S. C. §§1336, 1338, 1351, natural gas production, 15U-S.C. §717d,
and agriculture, 7U.S.C. §§1441, 1446.
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(c) Issues of reasonableness, necessity, and effectiveness
The most serious problem with the use of indirect means of control depending
upon raising the cost of automobile travel is that a court may find them to be
unnecessary and not as effective as direct controls. (This requirement of
reasonableness or necessity is discussed in paragraph 5, infra.) Since the
direct controls discussed above are fewer steps removed from their result,
they may be seen as more easily reconcilable with the statutory language of
section 110(a)(2)(B). The use of direct controls would eliminate the need for
a court to resolve potentially troublesome constitutional or statutory questions
of taxation versus fees, of price controls by an environmental agency, and of
whether these indirect means were envisioned by Congress. The use of indirect
controls would run the risk that a court would dispose of a case adversely to
the Agency on these other grounds, rather than confronting the key issue of the
capability of section 110(a)(2)(B) to effect reductions in vehicle miles traveled.
(6) Staggered work hours, four-day week
In some regions, a temporal redistribution of hydrocarbon emissions might re-
sult in lower peak concentrations of pollutants. Such a redistribution might
be effected by staggered work hours" or by prohibiting the operation of certain
vehicles during smog-prone hours of the day.
Actual restrictions on vehicle operation during certain hours is clearly a more
direct method of control, as compared to restrictions on work-hours which are
expected to result in reduction on vehicle operation during those hours. (Ad-
mittedly, it may be easier to enforce the staggered work-hours; nevertheless,
it is an indirect control, one step removed from the actual purpose of affecting
vehicle operation.) Consequently, although either method might be defensible
by itself, a court might be less willing to uphold the staggered work-hours if
the direct restrictions on vehicle operation were available, since the latter may
involve less disruption to non-transportation aspects of economic and social
activity.
5. The Administrator's authority to promulgate measures is limited by a re-
quirement of reasonableness "
In the approval of State implementation plans the Administrator is not faced
with the question of the wisdom of the means which the State has chosen to meet
the national standards. (Indeed, a State's authority to adopt or enforce emis-
sion standards, emission limitations, or requirements more stringent than nec-
essary is specifically preserved by section 116.)
On the other hand, the Administrator's authority to promulgate regulations set-
ting forth a plan exists only for the purpose of achieving the standards and meet-
ing the criteria of section 110(a). Authority to promulgate regulations stricter
than necessary to accomplish that purpose cannot be inferred from the law.
Similarly, under section 301 (a) the Administrator's authority exists only to
prescribe such regulations as are necessary "to carry out his functions under
this Act. " If one possible measure involves much greater impact on the com-
munity, is too indirect, seems unfair, or seems bc.yond the range of normal
agency action, then a court may well hold that it is not "necessary if less
objectionable or less indirect measures could have been promulgated, even
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though either achieves the same degree of emission reduction and that reduc-
tion itself is "necessary. "24/ The former of the two measures may also be
considered "arbitrary and "capricious" under the Administrative Procedure Act
in light of the available alternative measure.
6. A state may be required to implement transportation controls (Question #2)
In the absence of some authority to require the State 25 / itself to implement
many of the necessary transportation or emission control measures, with appro-
priate sanctions under section 113 for failure of the State to comply, the Clean
Air Act would contain a gigantic loophole through which any State could escape
the expenditure of necessary enforcement funds to achieve the national stand-
ards.
Mr. Staggers described the House version of the bill thus during June 1970
debates:
If we left it all to the Federal Government, we would have about every-
body on the payroll of the United States. We know this is not practical.
Therefore, the Federal Government sets the standards, we tell the
States what they must do and what standards they must meet. These
standards must be put into effect by the communities and the States,
ancTwe" expect them to have the mea to do the actual enforcing. 116
Cong. Rec. H5350 (daily ed. June 1(1, 1970) (emphasis added. ) "
The most workable theory under which to require a State to implement the re-
quired transportation or emission control measures appears to be that the road-
ways andpublic parking lots or spaces are public facilities for whose emissions
the State is responsible. This office has previously stated that where "emissions
of dust from roadways" under the ownership ,26/ of a State or locality prevent
the attainment of the national standards for particulate matter,
we believe that EPA may directly require the State or locality to take
specified actions. These roadways are public facilities and, in our
view, requiring State to take measures to control emissions from them
is similar to requiring a municipality to control emissions bf pollu-
Indeed, EPA regulations specifically indicate that a State in drawing up
its plan may take into consideration "the cost-effectiveness of [any given]
control strategy in relation to that of alternative control strategies" and
"the social and economic impact of the control strategy. ..." 40 CFR
§51. 2(b), (d). The Administrator may and, we feel, must do the same.
25/- The word "State "as usedinthis paragraph in eludes cities, towns, counties,
and political subdivisions, since they owe their legal existence to State
law.
26/ The memorandum actually said "under the jurisdiction, " but ownership
rather than political jurisdiction was the basis of the concept.
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tants from its municipal incinerator .... Memorandum from Michael
A. James to Edward J. Lillis, "Authority to Require States to Pave
roads and Implement Speed Controls, "January 23, 1973 (emphasis added).
Although dust actually originates on the road surface, and is simply made air-
borne by passing vehicles, one could also view as "emissions . . . from road-
ways" the pollutants left in the vicinity of the roadway by exhaust emissions
from passing vehicles. While the issue is not free from doubt, we believe that
it is not necessary that the pollutants originate in the roadway or public faci-
lity; it is sufficient that they are generated by velHcles while on the premises.
We believe that the owner or operator of the highway or parking lot be required
to reduce emissions from such vehicles operated thereon even though the vehi-
cles are owned and operated by others. In a similar situation, a shopping cen-
ter or factory owner could be required to limit parking or to restrict it to low-
polluting vehicles if emissions on its parking lots or roads were causing the
ambient standards to be violated. 21J
An obvious example of treating the state's roadways as a source would be the
promulgation of limitations or reductions in road space or allocations of usage
thereof (discussed in paragraph 4b (4), pp. 14-15, supra. ) More unusual, but
still defensible we believe, would be the promulgation of requirements that the
State limit the amount of usage (rationing gasoline or numbers of vehicles regis-
tered) or requirements that the State allocate the privilege of using its roads
only to vehicles complying with specified emission cleansing measures (retro-
fits, inspection-maintenance).
Not to require the State to implement the transportation controls would raise--
in addition to the practical problem discussed above concerning limited EPA
resources--the specter of senseless duplication of program by the State and the
Federal Government. To have a system of EPA traffic policemen, EPA inspec-
tion personnel and stations, and EPA vehicle registration procedures would sub-
ject citizens to repetitive and at times conflicting requirements. The State and
localities already have police, safety inspections, and vehicle registration re-
quirements. It cannot be concluded that Congress intended duplication of all
these State programs to result from a State's failure to include adequate trans-
portation controls in its plan.
On balance, it appears that an implementation plan promulgated by the Admin-
istrator can require a State or its political subdivisions to impose most of the
transportation controls outlined above in paragraph 4, and violation of such
requirements by the State can be subject to enforcement under section 113 of the
Act.
27/ It is also worth noting that the notion of prohibiting the construction or
modification of a so-called "complex source" may even go beyond our
theory of regulating a State's transportation "facilities", by regulating
even those facilities which neither generate pollution nor necessarily pro-
vide the physical location on which the pollution occurs. A highway appears
to be more than a "complex source", in fact, it is an actual source.
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The Clean Air Act does not appear to address the notion that requirements
might be imposed upon State or local officials solely because the government of
a State has jurisdictional responsibilities. Clearly, requirements may be im-
posed upon--and enforced against--persons or bodies who are the owners and
operators of pollution sources (including the State as owner of polluting faci-
lities 28/). It is not possible to say definitely whether the Act grants the author-
ity to impose requirements on non-polluters--either private individuals or the
State government--although we believe requirements may be imposed where the
non-polluter canbe shown to be involved in the polluter's activities or in a chain
of events resulting in pollution. 29 / We are unable to say definitely whether a
State may be required to take action under a plan simply because the plan is
supposed to go into effect within the boundaries of the State. For this reason,
we believe it is preferable that promulgated plans not make a State responsible
for pollutant emissions from private roads or parking lots, or for rationing
private parking spaces. We find it preferable to limit such requirements to
those State activities or facilities which can be said to be involved in the pro-
duction of the pollution.
7. The Administrator cannot require the State to expand mass transit facilities,
but he may include provisions for Federal assistance in a promulgated plan.
Congress tends to offer either the carrot of financial inducement or the stick
of federal preemption to prod a State into carrying out a program, but not to
command a State government to solve a problem in a certain way or to mitigate
the consequence of Federal attempts to solve the problem. We see no way in
which a State or local government may be commanded in a Federal implemen-
tation plan to provide, for example, adequate mass transit. There is no in-
dication in the legislative history that Congress foresaw the use of section 110
in such an unusual manner. In light of possible constitutional questions and in
the absence of a clear directive from Congress, we cannot say that the Agency
should proceed under such a legal theory.
On the other hand, a Federal plan could and probably should evidence careful
consideration of all of the measures needed to make the plan work such as mass
transit, without imposing any requirement for implementing such measures.
28/ The Act provides that the Administrator may seek civil injunctive and
penalty relief against "any person" who is "in violation of any requirement
of an applicable implementation plan." §113(a)(l). The term "person"
includes a "State, municipality, and political subdivision of a State."
§302(e). There appears to be no constitutional issue of suing a State.
See Memorandum from Rodney G. Snow to John E. Bonine, "Draft Trans-
portation Control Regulations for the Metropolitan Los Angeles Intrastate
Air Quality Control Region, " December 8, 1972.
29 / Some have argued that the State or locality could be required to implement
transportation controls simply because no otherbody can effectively imple-
ment them. Others have argued that a Federal regulation must be en-
forced by State officials simply because of the supremacy of Federal law-
On balance, we believe it is better to rely on the ownership rationale or
chain-of-events rationale outlined above.
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The Agency's plan could call upon other agencies, Congress, and the State to
make the facilities available and to build the system.
A State implementation plan must contain "necessary assurances that the State
will have adequate personnel, funding, and authority to carry out such imple-
mentation plan. " §110(a)(2)(F). Agency regulations provide:
Where a plan sets forth a control strategy that provides for application
of (1) inspection and testing of motor vehicles and/or other transpor-
tation control measures or (2) land use measures ...such plan shall
set forth the State's timetable for obtaining such legal authority as may
be necessary to carry out such measures. 40 CFR §51. ll(b).
Therefore, it may be proper for an Agency plan to suggest a timetable "for
obtaining such legal authority as may be necessary to carry out such measures"
as mass transit systems. It may similarly be appropriate for an Agency plan
to indicate that the need for funding, personnel, and authority would be brought
to the attention of Congress. Although these portions of the plan may not be
very significant legally, an Agency plan which called for drastic reduction in
automobile traffic without any indication of alternative transportation is unreal-
istic and would undoubtedly be resisted. Indeed, it could be argued that a plan
which called for alternative transportation would not "insure" attainment of the
standards due to expected evasion of the laws by motorists, and thus is neither
approvable (if submitted by a State) nor adequate for promulgation.
In addition, the Agency has not required that the State air pollution control
agency itself be able to enforce every element of an implementation plan. Plans
have been accepted whose enforcement depends upon the action of Attorneys
General who may not necessarily be sympathetic with the goals of the plans and
who may not have been appointed by, nor are they responsible to, the Governors
who have submitted the plans. It would therefore seem both appropriate and
legally proper for an EPA-promulgated plan to contain provisions which depend
upon the cooperation of other Federal and State agencies. Such provisions would
not be a substitute for imposing requirements to the limit of EPA's authority,
but they would be worthwhile additions. Senator Muskie said:
If the plan is approved, Congress expects the Federal regulatory agen-
cies to take the steps necessary to assure compliance with the plan.
116 Cong. Rec. S20609 (daily ed. Dec. 18, 1970).
In fact, the cooperation of the Department of Transportation was specifically
mandated by section 109(j) of the Federal Aid Highway Act, quote in paragraph
4b(5) of this memorandum, p. 15, supra.
The Senate committee urged the agencies of the Federal Government to make
assistance available. "The highway program, various housing and urban devel-
opment programs and other sources of assistance should be examined in this
connection." S. Rep. No. 91-1196, 91st Cong., 2d Sess. 13 (1970).
§§§§§§§
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TITLE: Legal Authority to Require State and Local Officials to Submit
Compliance Schedules for Transportation Controls
DATE: April 18, 1973
MEMORANDUM OF LAW
FACTS
Because it has been generally concluded by the Los Angeles Task Force that a
transportation control plan depending solely upon gasoline rationing would be
unworkable, a mixture of measures is under consideration, including such fea-
tures as requiring state and local governments to make modifications to streets
and highways favoring buses and carpools and disfavoring single-passenger auto-
mobile travel. EPA could theoretically design from scratch and enforce a com-
plete system for the entire South Coast Basin. However, this would result in
one more layer of planning authority on top of existing authorities, possible con-
flict with State, local, and DOT plans, and the possible inclusion of inadequate
and irrational measures in the implementation plan.
This Memorandum outlines the legal basis for a framework within which State
and local decision-making could be utilized in large degree to determine the
specifics of a sensible plan for Los Angeles; there would, as required by the
Clean Air Act, be no option left to them to decide whether to have specified
changes in their transportation patterns. I/
QUESTION
Does the Administrator have the authority to promulgate and enforce an im-
plementation plan provision requiring appropriate governmental authorities to
submit, by a date certain, a compliance schedule for the modification of streets,
highways, or other facilities owned or operated by those authorities ?
ANSWER
Yes. A plan should contain, inter alia, "emission limitations, schedules, and
timetables for compliance with sucKTimitations. " §110(a)(2)(B) of the Clean
Air Act. In addition, it should contain "such other measures as may be nec-
essary" to attain and maintain the national standards. §110(a)(2)(B). The com-
plexity of the problem may make it necessary to require a source owner to draw
up its own proposed compliance schedule, and the State or locality may be treated
as such a source owner with regard to its streets and highways. We believe a
legally supportable position would be that a provision requiring that such a com-
pliance schedule be submitted would be a proper "requirement" of the applicable
implementation plan, enforceable under section 113.
_!_/ The conclusions outlined below are equally applicable to requiring com-
pliance schedules in several other areas including an inspection system, a
retrofit or conversion program, registration limits, emission or gasoline
taxes, etc.
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DISCUSSION
1. The plan promulgated on June 15 might contain some specifics (e. g., bus
lanes decreed for a few recognizable freeway corridors), but would largely con-
tain requirements that identifiable governmental authorities--in their role as
the owners and operators of emission sources, namely the highways 2/ --sub-
mit proposed compliance schedules for obtaining emission reductions~according
to named criteria, by a date certain (e.g., September 15, 1973).
Failure of the government authorities to submit adequate schedules on the speci-
fied day would result in legal action under section 113(a)(l), which provides for
thirty-day notice, followed by an order to comply or a civil action. Failure to
abide by the compliance order could result in a fine of $25, 000 per day or im-
prisonment. Section 113(c)(l).
Upon submission of a compliance schedule, an announcement of its availability
would be made in the Federal Register, along with availability of EPA com-
ments. A public hearing would be held, although it could be in only one location.
Then the final schedule would be promulgated (or approved as appropriate) in
the Federal Register and its provisions enforced according to section 113.
2. The proposed Los Angeles transportation control plan contained some regu-
latory requirements that certain persons submit compliance schedules to the
Administrator "showing how the person will bring his operation into compliance
. . . ." Proposed Amendments to 40 CFR §52.229(g), Volatile Organic Com-
pound Loading Facilities, 38 Fed. Reg. 2194, 2199 (January 22, 1973). 3/
Requiring a stationary source to submit its own compliance schedule has been a
common practice on the part of States. It is not known, however, whether States
have taken enforcement action against a source for failure to submit a compliance
schedule, or whether the States have in all cases simply drawn up their own.
3. The promulgation of a generalized plan with later promulgation of detailed
regulations can be seen as consistent with actions taken by the Agency on
May 31, 1972, in which we indicated that a "detailed timetable for implementing
the legislative authority, regulations, and administrative policies required for
carrying out the transportation control strategy by 1975" had to be submitted by
numerous States by February 15, 1973, but that needed legislative authority
could be obtained as late as July 30, 1973, and the "necessary adopted regula-
tions and administrative policies needed to implement the transportation control
_2/ See Memorandum of Law from John E. Bonine to Alan G. Kirk II, "Legal
AUfiiority to Promulgate and Enforce Transportation Controls," February
28, 1973.
_3/ However, that proposed regulation provided only that failure to file a conir
pliance schedule or abide by its terms rendered another regulatory provision
immediately applicable.
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strategy" could be submitted as late as December 30, 1973. (See, e.g., 37
Fed. Reg. 10842, 10858 (May 31, 1972) (Districts of Columbia). )T/~
5. Aside from the legal considerations, it is worth noting that since the major
reason for California not to have submitted any adequate transportation plan up
to this point may be that they are unwilling to take the political heat for it, a
federal requirement may result in voluntary compliance. Under a fairly detailed
federal requirement, they could claim (accurately) that they are simply abiding
by federal law, thereby avoiding local political repercussions for drawing up
such details as bus lanes and parking restrictions.
6. The procedure proposed would at the same time follow the requirements of
40 CFR §51.4(a)(l), 37 Fed. Reg. 26310 (December 9, 1972), as to public
hearings on State - submitted compliance schedules, and the requirements of sec-
tion 110(c)of the Clean Air Act, as to publication, hearing, and promulgation of
federal implementation plans. 5/
7. Judicial review of the generalized plan could be obtained within 30 days of
the June 15 promulgation. Judicial review of a compliance schedule could be
obtained within 30 days of its promulgation. §307(b)(§).
§§§§§§§
TITLE: EPA Brief in Suits Challenging Disapproval of Implementation Plans
DATE: November 1, 1972
The following brief responds to arguments that the Administrator could not dis-
approve implementation plans without simultaneously issuing findings of fact,
a statement of basis and purpose, or other detailed explanation. It is intention-
ally broader than may be required in any particular case.
j[/It should be noted, however, that the authority for these deferrals of sub-
mission of important elements of the transportation control plans is not
entirely clear. An important deferral, that of the plans in general to
February 15, 1973, was held to be unauthorized in NRDC v. Ruckelshaus.
F.2d (Civ. No. 71-1522, January 31, 1973). No challenge has as
yet been lodged to the other deferrals, and the Court did not discuss time.
However, the States have not been informed by the Agency that the deferral
of dates for submission of legislative authority, regulations, and adminis-
trative policies are invalid, so presumably, it is Agency policy to attempt
to continue such deferrals.
%] The Act requires the Administrator to "prepare and publish proposed regu-
lations setting forth an implementation plan, corporation thereof . . . . "
§110(c). The compliance schedule submitted by the State should be published
in the Federal Register or, at a minimum, be incorporated by reference
at the proposal stage, and be available to all who contact the regional or
national office for a copy.
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1. No findings of fact were required at the time of disapproval.
a. There is no applicable statutory requirement for findings of fact.
(1) There is no requirement in the Clean Air Act for findings of fact in
connection with disapproval of an implementation plan. Nor is there any
requirement therein for hearings, which could imply a need for findings of
fact. (See Memorandum of Gerald K. Gleason, November 1972. ) The only
requirement in the Administrative Procedure Act for a statement of "findings
and conclusions, and the reasons or basis therefor, on all the material is-
sues of fact, law, or discretion presented on the record" is contained in
5 U.S. C. §557(c), which is applicable only to adjudication, §§554, 556, and
to formal rulemaking "required by statute to be made on the record after
opportunity for an-agency hearing, " §553(c).
(2) The disapproval of implementation plans is neither adjudication nor for-
mal rulemaking (See Memorandum of Gerald K. Gleason, November 1972. )
C"
b. This is not a situation where the court should impose a requirement of
formal findings on its own.
(1). "[Although formal findings may be required in some cases in the ab-
sence of statutory directives when the nature of the agency action is ambig-
uous, those situations are rare. " Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 417, 91 S. Ct. 814, 824 (1971).
(2) There is no ambiguity about the Administrator's action. His disapproval
of specific portions of the implementation plan was set out with specificity in
the Federal Register, as well as his approval of other portions. 37 Federal
Register 10842 et seq. (May 31, 1972).
2. Even if findings of fact are required, such a requirement has been met by
the actions of the Administrator.
Unlike most situations where formal findings are required, the approval or dis-
approval of implementation plans is not an area of great discretion on the part
of the Administrator. The Clean Air Act provides that the Administrator "shall
approve" each State's plan, or any portion thereof, if he determines that it was
adopted after reasonable notice and hearing, and that it contains provisions for
various requirements (including monitoring of ambient air quality, review of
location of new sources, intergovernmental cooperation, adequate means to
carry out the plan, monitoring of emissions from stationary sources, inspection
and testing of motor vehicles, and revision). The only requirements with room
for much discretion are that the plan insure expeditious or reasonable attainment
and maintenance of the ambient air quality standards. The Administrator has
further circumscribed his own discretion and explained in advance the basis on
which his decisions would be based by publishing in the Federal Register Re-
quirements for Preparation, Adoption, and Submittal of Implementation Plans.
36 Federal Register 15486 et seq. (August 14, 1971), 40 CFR Part 51. These
included description of the "moHels on which his decisions on attainment and
maintenance of the ambient air quality standards would be based. When tne
Administrator published his approvals and disapprovals of implementation plans
or portions thereof, specific findings were made as to the respects in which eacn
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disapproved portion had failed to meet the requirements of the regulations pre-
viously established, 37 Federal Register 10847-906 (May 31, 1972), and the
reasons and basis for his approvals and disapprovals was discussed in several
pages, id. at 10842-6. In addition, evaluation reports discussing each State
plan in even greater detail were published shortly after the actions of approval
and disapproval.^/ At the end of this process, there could be little doubt in any
situation why the Administrator had taken the specific actions which he took.
Few federal agency actions have ever been accompanied with as much detailed
information and explanation as were the approvals and disapprovals of implemen-
tation plans by the Environmental Protection Agency.
3. No detailed explanation was required at the time of disapproval.
a. There is no applicable statutory requirement that a detailed explanation
be published. """"
There is no requirement in the Clean Air Act for a detailed explanation in
connection with disapproval of an implementation plan. There is no require-
ment in the Administrative Procedure Act for a detailed explanation in con-
nection with administrative action, apart from the requirement for formal
findings in some situations (see paragraph 1, above), and for a concise general
statement in connection with informal rulemaking (see paragraph 5, below).
__!/ Petitioner may argue that the evaluation reports were issued after-the-fact
and therefore are not properly part of the court record. However, those
evaluation reports are not an attempt to substitute a new rationale for a
defective one as in Texaco, Inc. vi_FPC, 412 F. 2d 740, 744 (3d Cir. 1969),
and Braniff Airways v. CA&T&T9 F. 2d 453, 465 (B.C. Cir. 1967). Nor are
they "appellate counselTlpost hoc rationalizations" as in Burlington Truck
Lines v. United States, STTuTsT 156, 168-9, 83 S. Ct. 239, 245-6 (1962).
Nor is the action here adjudicatory, as in Burlington, Braniff, and SEC v.
Chenery Corp., 318 U.S. 80, 63S.Ct. 454 (1943); 332 U.S. 194, 67S.Ct.
1575 (1947). The reports are simply explanations of administrative action
which were already in preparation at the time of disapproval on May 31, and
were issued shortly thereafter. They are at least as reliable in showing the
basis of agency action as the statements of the agencies which met the in-
formal rulemaking requirements of APA §4(b) (even though issued after the
original decisions in denying requests for rehearing, in Automotive Parts
& Accessories Association v. Boyd. 407 F. 2d 330, 338 (I). C. Cir. 1968),
and Logansport Broadcasting Corp. v. United States, 210 F. 2d 24, 27-8
(D. C. Cir. 1954); the findings or testimony that the Supreme Court sug-
gested might have to be provided by the Secretary of Transportation in
Citizens to Preserve Qverton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814
(1971); the statement that the CourTof Appeals asked the Administrator for
in Kennecott Copper v. EPA, 462 f. 2d 846, 3 ERC 1682 (D. C. Cir. 1972);
or the additional findings allowed by the court in the adjudicatory situation
in American Farm Lines v. Black Ball Freight, 397 U.S. 532, 90 S. Ct.
1288 (1970).
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b. There is no extra-statutory, court-imposed requirement that EPA ac-
tions be accompanied by publication of a detailed explanation. ~
There maybe situations where a court needs additional explanation in order
to effectuate judicial review of an agency_2/ but courts have steered clear
of imposing any requirement that the additional explanation (beyond APA
requirements) be published as a prerequisite to agency action. In Kennecott
the court asked the Administrator for an "implementing statement that will
enlighten the court" but avoided invalidating the agency action or requiring
the statement to be published in the Federal Register. The court said:
Particularly as applied to environmental regulations, produced under
the tension of need for reasonable expedition and need for resolution
of a host of nagging problems, we are loath to stretch the require-
ment of a "general statement"" into a mandate for reTerence to all
the specific issues raised in comments. ———
462 F. 2d at 850, 3 ERG at 1685. (Emphasis added.) The court also said:
These precedents [Holm v. Hardin and American Airlines v. CAB]
establish that in a particular case fairness may require more than
the APA minimum, but are not to be taken as suggesting in any way
that the court considers" the kind of problems involved in environ-
mental regulations to require more than the written submissions spec-
ified by Congress"!
2/ In Kennecott Copper v. EPA. 462 F. 2d 846, 850, 3 ERG 1682, 1685 (D.C.
Cir. 1972), the court said, "There are . . . contexts of fact, statutory
framework and nature of action, in which the minimum requirements of
the Administrative Procedure Act may not be sufficient . ..." The court
remanded the record to the Administrator "to supply an implementing
statement that will enlighten the court as to the basis on which he reached
the [secondary air quality] standard from the material in the Criteria."
It also said that "in a particular case fairness may require more than the
APA minimum. . ." citing two if its previous decisions: In American
Airlines v. CAB. 359 F.2d 624 (D.C. Cir. 1966), the court indicated its
willingness in particular situations to impose "additional procedural safe-
guards" but found it unnecessary in that case. Id. at 632. In Holm v.
Hardin. 449 F.2d 1009 (D.C. Cir. 1971), the court decided that where
tomato importers made a "not insubstantial claim that an effective showing
requires oral presentation to Department officials, . . . this right is avail-
able to them. Id. at 1016.
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Id. at note 18, (Emphasis added.) The "written submissions specified
by Congress" are the concise general statements required for informal
rulemaking in 5 U.S.C. §553 of the APA.__3/ IcL_
4. Even if this is a situation in which __a__detailed explanation is required,
such a requirement was met by the actions ol the Administrator.
2EjEi
^ LOII
As discussed iri~paragraph 2, The actions of the Administrator were accom-
panied with detailed information and explanation which would exceed even the
more stringent requirements for adjudicatory action or formal rulemaking.
5. No statement of basis__and_gu_rgose was required at the time of disapproval.
There is no requirement in the Clean Air Act for a statement of basis and pur-
pose in connection with disapproval of an implemention plan. The only require-
ment in the Administrative Procedure Act for a "concise general statement of
. . .basis and purpose" is contained in 5 U.S.C. §553(c), which is applicable
only to informal rulemaking. However, the disapproval of implementation
plans is not informal rulemaking. (See Memorandum of Jeffrey H. Schwartz,
November 1972. )
if this i is a situation in which a statement of basis and purpose is
~d^^ be upheld.
a. The requirement for a statement of basis and purpose can be met by a
minimal of exffijmajioru — — - - — __^___^_
York Foreign Freight Forwarders and Brokers Association v. Fed-
^ 33^ F.2"cT289, 1296 (2d Cir. 1964), the court
_3/ It is also erroneous to infer a requirement for publication of a detailed
statement from the following comment by the court: "The provision for
statutory judicial review contemplates some disclosure of the basis of the
agency's action." 462 F. 2d at 849, 3 ERG at 1684. The court cited two
cases and they are useful in interpreting the remark. In SEC v. Chenery
Corp.. 318 U.S. 80, 63S.Ct. 454(1943), the Supreme Court did remand
the case to the agency for a new decision, because of inadequate findings,
but a formal adjudicatory procedure was involved and the courts were
bound to base their review on the SEC's formal findings of fact. (Such
cases are now reviewed on the basis of whether they are supported by "sub-
stantial evidence" and such findings. See 5 U.S.C. §§557(c), 706(2)(E).)
In Citizens to Preserve Oyerton Park v. Volpe, 401 U.S. 402, 91S.Ct.
814 (1971), the Supreme Court did not calTTorpublication of the basis of
the Secretary of Transportation's decision; instead it reproved the District
Court for relying solely onlitigation affidavits in reviewing the Secretary's
decision and remanded the case for plenary review by the District Court of
the full administrative record that was before the Secretary, supplemented
if necessary by additional testimony or by explanations in the form of
findings. Since the court in Kennecott did not find any requirement for
findings of fact as in Chenery, and did not hold the regulation invalid on
any other grounds, perhaps it felt that in an informal rulemaking situation
it could go only as far as the Supreme Court had suggested in Overton
Park's comparable situation, namely to ask for an explanation to the court
for purposes of judicial review.
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held to be adequate under 5 U. S.C. §553(c) a mere statement that the
regulations promulgated implemented the law and had as their purpose
the establishment of standards and criteria which were to be followed by
certain shipping concerns in the conduct of their business affairs. In
Kennecott Copper v. EPA, 462 F. 2d 846, 848, 3 ERG 1682-1683 (D. C.
Cir. 1972), the following statement satisfied the court for the purpose
of 5 U. S. C. §553(c):
National secondary ambient air quality standards are those which,
in the judgment of the Administrator, based on the air quality cri-
teria, are requisite to protect the public welfare from any known
or anticipated adverse effects associated with the presence of air
pollutants in the ambient air.
The court noted that the agency need not "provide the same articulation
as is required for orders or regulations issued after evidentiary hear-
ings. " Id. at 1684.
b. The explanation provided by the Administrator far exceeded the mini-
mum requirements.
As discussed in paragraph 2, the actions of the Administrator were accom-
panied with detailed information and explanation which would exceed even
the more stringent requirements for adjudicatory action or formal rule-
making.
c. Even if the Administrator had made no explanation at all at the time of
disapproval, that would be a "purely technical flaw" and would not
justify overturning the Administrator's actions.
In Hoving Corporation v. Federal Trade Commission, 290 F. 2d 803, 807
(2d Cir. 1961), the court said: e
v Regulations so promulgated will not be declared void merely be-
cause of a purely technical flaw in failing.to include within the Rules
themselves a "concise general statement" of basis and purpose. .
. . Both the basis and purpose are obvious from the specific gov-
erning legislation and the entire trade was fairly apprised of them
by the procedure followed.
(Emphasis in original.) Likewise, the basis and purpose of the Adminis-
trator's disapproval would be clear from the specific requirements of the
Clean Air Act, and from the procedures followed (see paragraph 2). When
the substance of agency action is "not seriously contestable" and the out-
come on remand would be certain, even in an adjudicatory situation with
the much stricter requirements for formal findings, the law "does not re-
quire that we convert judicial review of agency action into a ping-pong
game" NLRB v. Wyman-Gordon Co., 89 S. Ct. 1426, 1430 (1969) (plurality
opinion!]
7. No additional explanation is needed by this court in order to provide effec-
tive judicial review.
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In some situations, a court may need additional explanation in order to effec-
tuate judicial review of agency action. 4/ In those situations, it is appropriate
for the court to ask the agency for additional explanation, as done in Kennecott
Copper v. EPA, 462 F.2d 846, 3 ERG 1682 (D.C. Cir. 1972), and as done by
the District Court after a suggestion by the Supreme Court in Citizens to
Preserve Overton Park v. Volpe, 401 U.S. 402, 420, 91 S. Ct. 814, 825 (1971),
on remand. -- F.Supp. -- , 3 ERC 1510 (W.D. Tenn. 1972).
In Kennecott the original explanation of the agency had been minimal, and in
Overton Park the court indicated that the bare administrative record might not
disclose the factors that were considered. Neither of these situations exists
here, where the Administrator has accompanied his decision with detailed
explanations, discussed in paragraph 2.
4/ See note 2. supra.
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STATIONARY SOURCES
SECTION 111 OF THE CLEAN AIR ACT —-STANDARDS
OF PERFORMANCE FOR NEW STATIONARY SOURCES
TITLE: Nondegradation -- Federal Authority
DATE: March 11, 1971
QUESTION
This is in response to your recent inquiry concerning the extent of Federal
authority under the Clean Air Act to impose a policy of non-degradation on
States. Since no determination of air quality which results in concentrations
of a pollutant in excess of a national ambient air quality standard can be per-
mitted, as discussed herein nondegradation refers to the imposition of re-
quirements on sources in areas where air quality is already better than appli-
cable national standards, and where emissions from such sources, if uncon-
trolled or only partially controlled, would not result in the standards being
exceeded.
ANSWER
Our examination of the law, set forth below, indicates that with certain quali-
fications, there is no legal support for the imposition of the policy by EPA.
DISCUSSION (Legal)
1. Section 111 of the Act authorizes the Administrator to promulgate per-
formance standards applicable to new sources. These standards are to re-
flect the best system of emission reduction which the Administrator judges
has been adequately demonstrated. (§lll(a)(l)). Subjecting new sources to
standards reflecting the "best available technology", without regard to air
quality, is of course, an embodiment of at least one aspect of a nondegrada-
tion policy. However, there is no basis in §111 or in the legislative history
of that section for extending this policy to other Federal regulatory activity
authorized by the Act.
2. Other than its inclusion in §111 standards, there is no specific language
in the Act authorizing the imposition of a Federal policy of nondegradation.
The only portion of the law which might provide some legal support for it is
in §101(b)(l) where Congress stated that one of the law's purpose's is to "...
protect and enhance the quality of the Nation's air resource... " [emphasis
supplied]. "Protect" means to "shield from injury or destruction. "I/ Taken
literally, the phrase could be considered to be an indication that Congress in-
tended that existing air quality, no matter how good, be maintained. However,
IT ''Webster's Seventh New Collegiate Dictionary" (1965) P. 685.
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the quoted statement goes on to provide that the protection of the Nation's
air resource is not only to promote the public health and welfare, but to pro-
mote ". . .the productive capacity of its [the Nation's] population. " The appli-
cation of a policy prohibiting any deterioration of air quality, any place in the
Nation, without regard to the need to protect the public health and welfare,
even on a temporary basis, 2 / in consistent with the complete statement of
purpose. The absence of specific language authorizing the imposition of the
policy and the lack of evidence of Congressional intent that the policy be im-
posed are determinative of the legal question.
DISCUSSION (General)
1. However, it is worthwhile to consider the general approach of the Clean
Air Act as it bears upon this issue. The first regulatory authority for station-
ary sources given to the Federal government (other than the abatement-con^-
ference-hearing procedure) was contained in the 1967 Act. Pursuant to the
provisions of that Act, the Secretary, HEW, was to designate air quality
control regions. The designation, together with the issuance by the Federal
government of air quality criteria and control techniques for specific pollu-
tants, triggered State action to adopt both ambient air quality standards and
plans to implement such standards. If a State either failed to take this action,
or if State action was deemed inadequate by the Secretary, the Federal govern-
ment was empowered to promulgate such standards and/or plans. The law
provided that the ambient air quality standards be set by the States or by the
Secretary at levels protective of public health and welfare. Although States
were free to adopt more restrictive standards, the Federal government was
without authority to adopt or to require emission controls more stringent than
those needed to meet the ambient air quality standards. The Senate Report on
the 1967 Act (No. 403, p. 4)in discussing the designation of regions, contained
the following language: "When the air quality of any region deteriorates below
the level required to protect the public health and welfare, the Secretary is
required to designate that region for the establishment of air quality standards
..." Although the Secretary was not precluded from designating regions prior
to the time ambient air quality standards were exceeded, 3j the language in-
dicates Congressional acknowledgment that the purposes of Federal regula-
tion were to insure that air quality was maintained at levels which protected
the public health and welfare. This concept has been carried forward in the
1970 amendments.
2. Under existing law, national ambient air quality standards are set by the
Administrator. As in the earlier law they are to be set at levels which the
criteria documents indicate are necessary to protect health and welfare. Again
States may choose to adopt more stringent standards, but Federal responsi-
bility and authority are clearly aimed towards forcing the achievement and
attainment of the national standards.
2J The possibility that it was the intention of Congress that growth, (and
thus deterioration of air quality) should be prohibited only for some tem-
porary period until existing sources install controls (perhaps 3 to 5 years)
does not merit discussion.
3_/ It is worth noting that the statement of purpose in section 101(b) discussed
~~ in paragraph 1 (supra) was a part of the 1967 Act.
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3. Moreover, as a general matter the Act's approach is to condition authority
on the demonstrated need for control. All standard-setting in the Act, in-
cluding standards applicable to motor vehicles, hazardous emissions and fuel
additives, require either findings or consideration of the need for standards
to protect the public health and/or welfare. 4_/ The concept of Federal control
for reasons which cannot be reasonably related to the need for such control,
is foreign to the theory of the Clean Air Act.
4. Some of the goals of a nondegradation policy may in fact be achieved under
existing law. As noted above, the new source performance standards will
achieve part of the desired purpose. Obviously, the speed with which such
standards can be promulgated and the number of sources which are covered
by the standards are important. Under section 110(a)(2)(B) of the Act, State
plans must include those measures necessary to "insure attainment and main-
tenance. . . "[emphasis supplied] of the standards. Many of the legally support-
able requirements which EPA will impose upon States, to insure that national
ambient standards will be maintained, are identical to those measures which
would constitute the implementation of a nondegradation policy, e.g., a permit
system for all new sources, a means of regulating modifications of all existing
sources, and the extent to which States must consider projected growth when
setting emission standards.
5. Finally, it is important to note that although EPA cannot impose the re-
quirement itself, States may and should be encouraged to do so. There are
important reasons for States implementing this policy in addition to the "clean
for clean's sake" approach. The "art" of establishing emission controls to
achieve ambient air quality standards is not so exact than in most areas States
can safely choose to apply something less than the best technology in their
regulations. If air quality is allowed to deteriorate up to the standards, any
revisions to plans due either to miscalucations as to the needed limitations,
or adjustments to the national standards, will cause great difficulties to both
the States and the affected industries. Moreover, allowing uncontrolled or
poorly controlled sources to use up more of the air resource than is necessary
will unnecessarily limit growth in States.
37 Under section 111, new source performance standards can only be pro-
~~ mulgated for those sources which ". . .may contribute significantly to air
pollution which causes or contributes to the endangerment of public health
or welfare. "
or welfare.
§ § S § S .§ S
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TITLE: Applicability of New Source Performance Standards to Source
Modifications
DATE: December 21, 1972
/
MEMORANDUM OF LAW
FACTS
Your memorandum of December 7, 1972, and our earlier telephone conver-
sation have raised the issue of the applicability of the new source performance
standards to modifications of existing affected facilities. You have suggested
two possible interpretations of the Act:
"(a) Total emissions (existing plus the increase) must be controlled
to the levels specified by NSPS. This interpretation follows
from the definition of a new source, which includes modified
existing sources, and the stipulation that all new sources must
meet NSPS.
(b) Only the emission increase is subject to the NSPS. This inter-
pretation follows from the argument that if the new capacity
were built at a second location, the existing facility would not
be subject to the NSPS. Therefore, it is inconsistent to apply
the standards to the existing plant just because the new capacity
is achieved at the same location."
Your memorandum also raises the issue of whether the language "increases
the amount of any air pollutant emitted" in §111 should be interpreted as having
some meaning other than an increase in mass emissions over sometime period.
QUESTION #1
When an existing "affected facility" is altered so as to bring it within the
definition of a "modification" in §111 of the Clean Air Act, is only the resulting
increase in emissions (of the specified pollutant) subject to the relevant new
source performance standard or are all emissions (of the specified pollutant)
from the modified source subject to the standard?
ANSWER #1
Only the emissions resulting from the modification of the "affected facility"
may be subjected to the new source performance standard.
QUESTION#2
What is the proper interpretation of the requirement in §lll(a)(4) that a change
"increases the amount of any air pollutant emitted" ?
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ANSWER #2
While there may be other methods of calculating the increase referred to, the
determination of an increase in terms of additional mass emissions of a pre-
scribed pollutant over some time period is consistent with the language of the
section.
DISCUSSION
1. Section 111 of the Act provides that new source performance standards may
be prescribed for any "new source" which includes "grass roots" facilities
and major modifications of existing sources. The term "modification" is de-
fined in §lll(a)(4) as follows:
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. I/
2. We do not believe that §111 can be interpreted so as to require the appli-
cation of new source technology to existing facilities. The clear purpose of
§111 is to apply newly developed technology to "grass roots" sources, which
allows planning for the incorporation of such controls at the earliest stages of
planning for the facility. However, in the case of a major modification, the
incorporation of this "best demonstrated new source control technology" logi-
cally applies only to the new aspect of the facility, the modification itself,
and not to the existing aspects. 2J To the extent that a standard applicable to
a modified source in effect requires the application of new source technology
to the existing source, it is inconsistent with §111.
3. It is questionable whether the current new source performance standard
regulations have adequate provisions to deal with the applicability of the stan-
dards to modified sources. For example, it does not appear that existing
sources contemplating major modifications which would bring them within §111
must perform any sort of emissions test or emissions calculation to provide
a baseline for purposes of determining the increase in pollutant emissions
which would be subject to the standard. Given the difficulties involved in cal-
culating just what portion of emissions from the modified facility must meet
the standard, it may be that the regulations will have to place the burden on
the owner or operator to provide baseline data (measured or calculated) or be
subject to the standard with respect to all emissions of the specified pollutant
from the modified source.
T7 The pollutant referred to must be considered to be only those to which the
~ relevant new source performance standard applies.
2/ In some cases, the Agency may not reasonably be able to apply best demon -
stratednew source control technology to a modification. However, section
lll(b)(2) provides flexibility to prescribe "best demonstrated modified
source control technology "for modified source which qualify as 'new sour-
ces" under the Act.
§§§§§§§
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TITLE: Resumption of Operations by Sources
DATE: February 14, 1973
MEMORANDUM OF LAW
FACTS
Your memorandum of February 2, 1973, briefly discusses' the issue of the
reopening of existing plants which have been closed for a period of time. Some
have closed because of lack of demand for their products, others operate on a
seasonal basis. You have inquired regarding the applicability of new source
performance standards to these sources.
QUESTION
May a source which was in existence prior to the proposal date of a new source
performance standard (applicable to that class of sources) be subjected to the
standard when it resumes operations following the proposals ?
ANSWER
No, the source would not be a "new source" within the meaning of §lll(a)(2)
of the Clean Air Act.
DISCUSSION
The sources which your memorandum describes are "existing sources", not
"new sources" whic"
source" as follows:
"new sources" which may be regulated under §111. The section defines "new
[A]ny stationary source, the construction or modification of which is
commenced after the publication of regulations (or, if earlier, pro-
posed regulations) prescribing a standard or performance under this
section which will be applicable to such source.
Under the facts given, it is apparent that no "construction" activity is involved,
since the source owner or operator merely takes those steps necessary to re-
turn a plant to its former operating condition and we do not think this could
legitimately be characterized as "fabrication, erection, or installation of an
affected facility".*/ In addition, no modification within the meaning of the
section is involved, since it appears that neither the source's physical structure
nor its method of operation is changed from its condition under previous opera-
tions.
*/ Which is the definition of "construction" under EPA regulation 40 CFR
60.2(g).
§§§§§§§
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TITLE: New Source Performance Standards for Asphalt Batch Plants
DATE: January 24, 1972
FACTS
James Berry and Robert Ajax of BSSPC have each had a telephone conver-
sation with me regarding the development of new source performance standards
for asphalt batch plants under §111 of the Act. They have described these
plants as being composed of a number of apparatuses which are linked together
as a working unit used in highway construction. The plants are typically sit-
uated in one location for several months at a time, then disassembled, moved
to a new location, and reassembled. Over a period of years, one plant may
operate in different air quality control regions and States.
QUESTION #1
Is an asphalt batch plant a stationary source within the meaning of §111 of the
Clean Air Act ?
ANSWER #1
Yes. Asphalt batch plants are semi-permanent sources which may be regu-
lated under §111 as stationary sources.
QUESTION #2
Would the reassembly of the components of an asphalt batch plant which has
previously been in operation make it a new source subject to §111 of the Clean
Air Act and regulations in 40 CFR Part 60?
ANSWER #2
No. The plants as a whole would not be subject. However, where the re-
assembly involves the addition of an affected facility, the construction or modi-
fication of which was commenced after the effective date of a new source per-
formance standard applicable to such facility, that new facility would be subject
to the standard.
DISCUSSION
1. In a February 8, 1971 memorandum to Irwin Auerbach of OAP, I con-
cluded that performance standards under §111 of the Act may be applied to
semi-permanent sources "which are only incidentally removable rather than
having mobility as an integral aspect". Asphalt batch plants and their com-
ponent facilities clearly fall within this description. The fact that such plants
are fairly large operations consisting of a number of apparatuses, and must
be completely disassembled in order to be moved, distinguishes them from
sources which have ready mobility as a principal characteristic.
2. Section lll(a)(2) defines a new source as "any stationary source, the con-
struction or modification of which is commenced after ... [proposal] of regu-
lations prescribing a standard of performance... which will be applicable to
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such source". EPA regulations define "construction" as the "fabrication,
erection, or installation of an affected facility" (§60.2(g)). This definition
could be read to cover the reassembly of a previously-operated asphalt batch
plant. However, it is clear from the legislative history that Congress did not
intend such an application of §111. What was intended was the application of
new control technology to sources created for the first time, so that emissions
controls could be included in the planning and design stages. In short, the word
"initial" must be read into §60.2(g) as modifying "fabrication, erection, or
installation".
3. Probably a more important consideration to the case at hand is the appli-
cability of the performance standards. Under the regulations, the standards
apply to each "affected facility", which may be identified as a complete plant
(e. g., a nitric acid production unit) or as a distinct apparatus within a plant
(e.g., the kiln in a portland cement plant). From the facts before us, it appears
that performance standards for asphalt batch plants would probably apply to the
various component apparatuses. Accordingly, the applicability of standards
would be determined on the basis of the "construction1 (see definition in para-
graph 2) of each affected facility rather than the entire plant. It seems likely
that the construction of an affected facility for use in an asphalt batch plant
would be only incidentally related to the reassembly of the plant.
§§§§§§§
TITLE: Applicability of New Source Standards to Asphalt Plants
DATE: October 5, 1973
FACTS
In a recent conversation, you asked me to address the question of applying new
source performance standards to an asphalt concrete plant as a consequence of
the plant's having changed ownership.
QUESTION
Is a change of ownership of a source, without more, basis for subjecting the
source of new source to new source performance standards under §111 of the
Clean Air Act ?
ANSWER
No. Mere change of ownership does not change the character of an existing
source so as to constitute it a 'new source" within the meaning of §lll(a)(2).
DISCUSSION
The applicability of §111 standards to source depends upon whether they are
new. Section lll(a)(2) defines a "new source" to be:
".. .Any stationary source, the construction or modification of
which is commenced after the publication of regulations (or, if
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earlier, proposed regulations) prescribing a standard of per-
formance under this section which will be applicable to such
source."
"Modification" is defined to mean a change in the physical plant or operational
method which causes increased emissions. When the ownership of a plant is
transferred, there is no physical change, nor could the mere fact of different
management or personnel operating the plant be fairly characterized as a
change method of operation.
Section 111 is concerned with the creation of new pollution sources, whether
from "grass-roots" or enlarged plants or from significant operating changes,
and the application of the best available control to such sources. Transfer
of ownership does not change the emission characteristics of an existing plant.
§§§§§§§
TITLE: Authority to Proscribe Processes
DATE: September 28, 1973
MEMORANDUM OF LAW
i
FACTS
Group II A new source performance standards under development by OAQPS
for copper smelters group all types of furnaces together as "affected facil-
ities". Application of the proposed SO standard to the reverberatory fur-
nace will have the effect of banning its future use, it is agreed by OAQPS and
the smelting industry, because the cost of compliance is prohibitive. Appar-
ently, no effective means of control exists for reverberatory furnaces, while
other types of furnace processes are controllable.
The background document for the standard addresses in some detail the avail-
able alternatives to the reverberatory furnace, and the costs associated with
these alternatives. Smelting industry technical representatives have chal-
lenged the conclusions therein, and one lawyer for a smelting concern has sub-
mitted a letter concluding that §111 of the Act does not authorize EPA to
effectively ban a process by setting a standard which it cannot meet.
QUESTION
Is EPA authorized under §111 .of the Clean Air Act to promulgate new source
performance standards for a class of sources which would have the effect of
limiting the types of processes which can be used to conduct the activity in which
the sources are engaged ?
ANSWER
Yes. In general, EPA is authorized to promulgate one standard applicable
to all processes used by that class of sources, in order that the standard may
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reflect the best system of emission reduction for that class. However, where
the application of a standard to a given process would effectively ban the pro-
cess a separate standard must be prescribed for it unless some other pro-
cess(es) is available to perform the function at reasonable cost.
DISCUSSION
In prescribing new source performance standards the Administrator is fre-
quently faced with identifying one control system or technique as being more
effective than another for a given process. This determination is dictated by
§lll(a)(l), which states:
"The term 'standard of performance' means a standard for emissions
of air pollutants which reflects the degree of emission limitation a-
chievable through the application of the best system of emission re-
duction which (taking into account the cost of achieving such reduction)
the Administrator determines has been adequately demonstrated. "
In the case of some classes of sources, the different processes utilized in the
production activity in which the source is engaged figure importantly in the
emissions levels of the source and/or the technology which may be employed
to control the emissions. For this reason, we think the "best system of emis-
sion reduction" language of §lll(a)(l) should not be read so as to refer only to
emission control hardware. It is clear that adherence to existing process
utilization could serve to undermine the purpose of §111 to force the technology
toward better control. As stated in the Senate Committee Report:
"'Standards of performance', aterm which has not previously appeared
in the Clean Air Act refers to the degree of emission control which
can be achieved through process changes, operation changes, direct
emission control, or other methods. " (p. 17)
Thus, if some processes are amenable to control while others are not, the
singling out of the less controllable process for application of less stringent
standards may well be subject to successful challenge as ignoring the mandate
to impose standards which require the best system of emission reduction.
In determining whether different processes constitute a basis for setting dif-
ferent standards, the Agency first has the responsibility to determine whether
processes are functionally interchangeable. Factors such as whether the
least polluting process can be used in various locations or with various raw
materials or under other conditions must be considered.
The second critical consideration for the Agency involves the costs of achieving
the reduction called for by a standard applicable to all processes used in a
source category. Where a single standard would ban a process which is much
less expensive than the permitted process, the economic impact of the single
standard must be determined to be reasonable or separate standards must be
set. The basic approach is that of identifying economically viable alternatives
to the process which is potentially to be prohibited. This does not mean
that the cost of the alternatives can be no more onerous than those which would
be associated with controlling the process under a less stringent standard.
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Of critical importance in the promulgation of any standards of the type dis-
cussed here is a well reasoned, well documented discussion in the background
document and/or the preamble to the regulations. This "discussion should in-
clude the basic legal and policy rationale, the availability of alternative pro-
cesses, the costs of alternative processes, and any particular problems iden-
tified in the Agency's examination of those issues. In this connection, the
U.S. Court of Appeal's opinion in Portland Cement Association v. Ruckelshaus,
5 ERG 1593 (1973), is worth noting: ~~
We are not here considering a regulation that was issued in the con-
templation that all new cement plants will be dry-process, and con-
trolled by baghouses on the theory that this is the 'best system' of
emission control. Possibly such an approach would be feasible, but
in any event it would require underlying reasons by EPA, to terma17
nate the process. . . identified as major now and in future production.
(emphasis added) (Slip Op. at 41)
As appears from our examination of technological feasibility, in Part
IV of this opinion, a substantial question arises as to whether either
wet process plants, or any process using electrostatic precipitators,
will be able to achieve mandated pollution control. . . . As to exclu-
sion of electrostatic precipitators, the record shows that they area
cheaper technology than fabric filters. Since remand is required for
other reasons, as appear from Part IV, we confine our analysis at
this juncture to a declaration that on remand the Administrator should
consider, as a matter of economic costs, contentions and presenta-
tions submitting that the standard as adopted unduly submitting that
the standard as adopted unduly precludes supply of cement, including
whether it is unduly preclusive as to certain qualities, areas, or low-
cost supplies. (Slip Op. at 23024.)
Coming to the specific issue which is now before the Agency, the application
of a sulfur dioxide emission limitation to reverberatory furnace in copper
smelters, the principles enunciated above necessitate a thorough examination
of the costs associated with the available substitutes for reverberatory fur-
naces, especially in that area of their utilization where the availability of
alternatives from a functional standpoint is in dispute. Our conclusion is
that the background documents reflect sufficient consideration to proceed to
proposal. Informational gaps that are identified now or are pointed out in com-
ments will hopefully be closed in the final preamble or background statement.
§§§§§§§
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TITLE: Delegation of Authority
DATE: November 9, 1972
MEMORANDUM OF LAW
FACTS
The division of Stationary Source Enforcement is presently preparing guide-
lines for the delegation of authority to implement and enforce new source
performance standards which is provided for in §111 (c). Presently, all au-
thority with regard to new source performance standards resides with EPA.
Some States have requested delegation of this authority. At the present time,
it is not clear exactly what form the delegation will take, the exact scope of
authority which can or must be delegated, or the effect of such delegation on
enforcement of the standards by the States.
QUESTION # 1
May the delegation make the new source performance standards "State" stand-
ards which can be enforced as State regulations ?
ANSWER #1
Since the standards are authorized by the Federal Clean Air Act and promul-
gated by the Federal Environmental Protection Agency, they cannot be con-
sidered "State" standards and must be enforced as Federal standards by the
States.
QUESTION #2
May State agencies be delegated the authority to enforce Federal standards ?
ANSWER #2
State officials may be authorized by the Federal Government to implement and
enforce Federal law. While there are arguments on both sides of the question
of whether a State official may enforce Federal law where there is a State
policy or statute prohibiting him from acting in such a manner, the more modern
view should permit a State official to carry out delegated authority under the
Clean Air Act regardless of State law given the cooperative Federal-State con-
cept of the Clean Air Act. It is unlikely that there will be any State restrictions
arguably precluding State officials from implementing and enforcing the new
source performance standards.
QUESTION #3
May the scope of authority delegated to a State be less than the authority avail-
able to the Administrator ?
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ANSWER #3
Since the Clean Air Act provides that a delegation may be made only if the State
has adequate procedures and it is a delegation of "any" authority which the
Administrator has under the Act, the Administrator is not required to dele-
gate all of his authority but can restrict it to the extent he deems appropriate.
DISCUSSION
1. Section 111 of the Clean Air Act, as amended, provides for the promul-
gation of regulations setting forth Federal standards of performance for new
stationary sources within certain categories. Enforcement of these stand-
ards by the Administrator is provided for in §113(a)(3)and §§113(b)(3) . Section
11 l(c) states that:
(c)(l) Each State may develop and submit to the Administrator
a procedure for implementing and enforcing standards of per-
formance for new sources located in such State. If the Admin-
istrator finds the State procedure is adequate, he shall dele-
gate to such State any authority he has under this Act to imple-
ment and enforce such standards (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.
2. The full impact of this section depends upon an analysis of both the Clean
Air Act and some of thebasic principles behind our Federal system of govern-
ment. At the present time, the new source performance standards are solely
the responsibility of the Federal government. Even though a State may have
standards which apply to new sources and are more or less stringent than
the §111 Federal standards, the latter constitute Federal law and must be
complied with by a source regardless of any such State standards which it
must also meet. A State could, of course, promulgate standards exactly
as stringent as the Federal and implement and enforce them pursuant to
its own procedures. A State may forego the opportunity to establish similar
standards and, through a delegation of authority under §111, assume respons-
ibility for controlling a particular group of pollution sources. The delegation
provided in §lll(c) reflects the overall emphasis of the Clean Air Act on
developing and encouraging State responsibility for improving the quality of
the nation's air.
3. The most fundamental question raised by §lll(c) is the authority of the
Congress of the United States to authorize State officials to implement and
enforce Federal law, whether that law be established by statute or by regu-
lation. It has been settled for many years that the Federal Government may
authorize State officials to perform a particular duty. Kentucky v. Dennison.
65 U.S. 66, 107-08 (1860). Therefore, Congress clearly can authorize a
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State agency to implement and enforce Federal standards._JL7 While there
is some case law to the effect that the Federal Government cannot compel
a State agency to perform these duties, it will be assumed that this is not
the situation here since the State must request the delegation and provide
adequate procedures for implementing and enforcing the regulations. The
only limitation which might affect the performance of a State official in carrying
out the delegated authority is raised in some cases which hold that while a
State agency or official may be authorized to carry out Federal law, he cannot
do so if it conflicts with a State constitutional or legislative prohibition against
such conduct. E.g., Dallemagne v. Moisan, 197 U. S. 169 (1905). The pre-
sent-day effect of such a limitation is not exactly clear. A significant United
States Supreme Court case. Testa v. Katt, 330 U.S. 386 (1947), held that
the State could not deny enforcement of claims arising out of a valid Federal
law. The decision found the State policy to be subject to and superceded by
the supremacy clause of the United States Constitution^/ which holds that
the Constitution and laws pursuant to it are the supreme laws of the land,
and they are binding alike upon States, Courts and people, regardless of any-
thing to the contrary in the constitution or laws of the State. 3/
4. There are other decisions, however, which provide support for the con-
clusion that Federal law may permit State officials to perform certain actions
regardless of the dictates of State law. For example, in Indiana v. Killigrew.
117 F. 2d 863 (7th Cir. 1941), a State court clerk was held to have authority
to naturalize citizens as expressly authorized by Federal law even though there
was no State statute permitting him to exercise such authority. The case of
Gates v. Council of the City of Huntington. 93 F. Supp. 757 (S.D.W.Va.
1950) affirmatively supports the proposition that a State agent can act pursuant
to Federal law regardless of his authority under State law. There, a Federal
statute authorized any city council to extend the provisions of the Rent Control
Act merely by passing a resolution that there remained a need for such rent
controls within the community. The city charter did not authorize the city
council to make any such resolution and such action was therefore outside
the express power of the council. The Court found that the council had the
authority to make such a determination since it was acting under Federal
law, not under State law. The Court noted that when Congress acts on
a matter within its constitutional authority, such action becomes a part of
the State policy in the same manner as if the State legislature itself had enacted
that kind of law and that neither the silence of local law nor any policy or rule
_T/ Whether this is done by express authorization by Congress or through
a determination by the Administrator should be irrelevant. Congress
has expressed its desire to have States assume responsibility and has
merely left the actual authorization to the Administrator to provide flexi-
bility. This is a permissible delegation of Congressional authority.
2/ U. S. Constitution, Article VI, §2.
3/ This case did, however, deal directly with the jurisdiction of Courts,
not with the authority of State agencies, and there was some suggestion
in the opinion that the State courts did provide jurisdiction for similar
causes arising under State law".
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to the contrary could serve to defeat the will of Congress. This clearly sup-
ports the position that a State agency could act pursuant to any delegated
federal authority to implement and enforce Federal new source performance
standards irrespective of conflicts with State laws, regulations or policies.
5. Further support can be found in cases arising out of the Federal Power
Act. That Act authorized delegation of the Federal emminent domain power
to any Federal licensee under the Act. In several instances, this licensee
was a local municipality. The courts upheld the exercise of this Federally
delegated power despite the lack of any express State authority to exercise
it. 4/ In Chapman v. Douglas Co., 367 F. 2d 163 (9th Cir. 1966), the Court
noted that ''the substance oi the delegated Federal power, however, may not
be diminished by State law. "_5/ Thus, it would appear that there is pre-
cedent and axithority for a provision such as the delegation of authority to
implement and enforce the new source performance standards. Admittedly,
Congress cannot legislate outside the realm of its authority as specified in
the enumerated powers delegated to it by the States. But that is not the
situation here where Congress is legislating to protect the public health through
the Commerce clause. The only question is whether the State, since it retains
concurrent authority over control of air pollution within its jurisdiction, can
limit the manner in which the Federal government exercises its authority
when such exercise involves the use of State agents. Based on the above
cited cases, it is our opinion that such a delegation may be made and carried
out despite any possible limitations which exist in State law. We would assume,
however, that for the most part there will be no restrictions in the State
law which will impede the State agency from implementing and enforcing
the standards of performance.
6. Since Congress had the authority to pass §lll(c), the only question re-
maining is the manner and scope of the delegation. The section provides
for the Administrator to delegate as much authority as he has to the States,
but it does not require him to do so. First, he must review the State pro-
cedures to determine if they are adequate. A State may elect not to carry
out all the necessary aspects of implementation and enforcement or to im-
plement only certain standards. Furthermore, a State may utilize its own
available State authority to carry out certain aspects of implementing the
standards. The provision therefore necessarily contemplates that the Ad-
ministrator may grant as much or as little of his authority as he deems
appropriate and necessary to enable the State to carry out any or all §111
standards.
7. There is great flexibility provided the Administrator in determining how
the States must show that their procedures are adequate. For example, he
can require them to illustrate exactly how they will compel sources to comply
with the standards, how the sources will be inspected and supervised to deter-
mine their compliance, and how enforcement will actually be undertaken. If
4/ 5ee Washington Department of Game v. FPC, 207 F. 2d 391 (9th Cir.).
5/ 367 F. 2dat 167.
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the procedures do notprovidefor implementation and enforcement of the stand-
ards as desired by the Administrator, he may clearly find them inadequate
to that extent and refuse the delegation. The Administrator can determine
what is "adequate" so the procedural requirements presented to the States
can establish any restrictions which DSSE deems necessary to insure that
the States will carry out the delegated authority in a manner consistent with
EPA policy.
8. One specific problem lies in the realm of enforcement where, in order
to prevent possible undesirable precedent for cases filed directly by EPA,
it is desired that the States not enforce the regulations in Federal court.
Of course, enforcement of Federal regulations such as these is available to
the Administrator either in State or Federal court. _6_/ Since the Admin-
istrator can delegate any authority he has under the Act, it would appear
permissible for him to delegate to the State agencies only the authority to
seek enforcement pursuant to State law and in State courts. Tj This could
also be based on his determination of what are adequate procedures for carrying
out this section. It would provide the States with full enforcement in courts
they are familiar with while eliminating the problem of State involvement in
Federal courts.
9. It should be noted that §lll(c) provides for delegation of "authority" which
the Administrator has. Section 113 provides criminal penalties for violations
of §111. This criminal penalty is not part of the authority of the Administrator
but is a statutory penalty; as such, it is not something which can be delegated.
The State agencies will have to seek relief from the remedies generally avail-
able to them under State law.
10. It is, therefore, our interpretation that the Administrator may dele-
gate his §111 authority to the States and that such delegation may be limited
to the extent the Administrator deems appropriate, including restrictions on
the forum for enforcement actions. The States will be enforcing Federal
regulations but pursuant to State procedures. While we believe such a delega-
tion is justified, some State courts may find that the State agents cannot imple-
ment Federal standards where State law precludes it, as discussed above. In
such a case, the delegation would have to be withdrawn.
_B7 See Testa v. Katt, supra. Even if a court were to find that Testa
does not require a State court to hear a Federal cause of action where
State policy prohibits such jurisdiction, the situation should not occur
with regard to these regulations since all States provide jurisdiction for
enforcement of regulations protecting health through prohibition of air
pollution. Since a State court would entertain a similar State cause
of action, it is in no position to refuse to accept a Federal cause of
action. See also Claflin v. Houseman. 93 U. S. 130(1876).
_7_/ §113(b) provides jurisdiction for the Administrator to enforce a violation
of §111 (c) in the United States District Court. This being one part of
his authority under the Act to implement and enforce §111 standards, he
can refuse to extend it to the States.
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TITLE: Standards Upon Which State Emission Standards Must be Based
DATE: May 26, 1971
QUESTION
This is in response to your memorandum of May 7, 1971, which raises the
question of whether section lll(d) of the Clean Air Act requires the States to
adopt emission standards applicable to existing sources which are adequate to
protect public health and welfare.
ANSWER
Section lll(d) of the Clean Air Act requires the Administrator of EPA to pro-
mulgate regulations which mandate States to adopt emission standards which
are necessary and sufficient to protect public health and welfare. In no event,
however, may the Administrator require the imposition of emission standards
which are more stringent than the new source standards of performance pro-
mulgated under section lll(b) of the Act.
DISCUSSION
1. Section lll(d)(l) of the Clean Air Act provides,
The Administrator shall prescribe regulations which shall estab-
lish a procedure similar to that provided by section 110 under
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)(l)(A) but (ii) to which a standard of performance
under subsection (b) would apply if such existing source were
a new source, and (B) provides for the implementation and en-
forcement of such emission standards.
2. The foregoing provision does not state the basis on which such "emission
standards" are supposed to be established. Likewise, neither the Conference
Report on H.R. 17255 (which ultimately became P.L. 91-604), nor.the floor
debates on the conference bill specify the appropriate basis for establishing
such standards. The only legislative history is inconclusive. I/ In light of
this uncertainty, we regard three alternative interpretations of, section lll(d)
of the Clean Air Act as plausible.
i/ The predecessor of section lll(d) of the Clean Air Act was section 114 of
the Senate-passed bill, S. 4358. Section 114(c)(l) provided that national
emission standards for "selected" air pollutants shall be designed to in-
sure that emissions of such pollution agent or combination of agents from
any such stationary source shallnot endager public health. Section lll(d)
of the Clean Air Act represents a substantial modification of section 114
of the Senate-passed bill. Without explanation or inclusion of another cri-
terion, the conferees eliminated protection of public health as the stated
basis for the emission standards.
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3. First, section 111 (d) may be read as requiring the establishment of emission
standards which reflect the emission reductions attainable through use of the
best available emission reduction systems applicable to existing sources (i.e.,
"best available retrofit"). Second, as your memorandum of May 7 suggests,
section lll(d) may be read as requiring that emission standards reflect such
reductions, unless the State "could show that public health and welfare would
not be endangered by application of less stringent emission standards". In
such cases, emission standards would be based upon the reductions necessary
to protect the public health or welfare.
4. However, we believe a third reading to be the most persuasive. We believe
that Congress intended the section 111 (d) emission standards to protect the public
health and welfare. 2/ However, in many instances the health and welfare
effects of the pollutants to which section lll(d) emission standards may apply
have not been adequately determined. This is so, at least partly, because
such pollutants "are not emitted in such quantities or are not of such character
as to be widely present or readily detectable on a continuing basis with avail-
able technology in the ambient air. " 3/ In light of this lack of knowledge
Congress apparently established a re"b~uttable presumption that installation of
the best available retrofit would be both necessary and sufficient to protect
~2"7It is true that section 114(c)(l) of S. 4358 provided for national emission
standards for "selected" air pollutants "designed to insure that emissions
of such pollution agent of combination of agents from any such stationary
shall not endanger public health. " It is also true that section lll(d) of the
Act did not include any such provision. Normally, such a deletion would
be considered evidence of congressional intent to base lll(d) emission
standards on some criterion other than protection of the public health. How-
ever, by 1) specifying State-by-State emission standards, 2) failing to spe-
cify what criterion should be used, if not protection of public health and
welfare, and 3) tying lll(d) standards to lll(b) new source performance
standards which are aimed at sources which "may contribute significantly
to air pollution which causes or contributes to the endangerment of public
health or welfare", Congress appears to have adopted the approach we set
forth herein.
_3_/ Senate Report on S. 4358 (No. 91-1196), September 17, 1970, p. 18.
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public health and welfare. 4/ Thus, Congress intended that the Administrator's
regulations under sectionall(d) would require States to establish emission
standards based on best available technology applicable to an existing source
(i. e., Taest available retrofit ), unless the Administrator determined that such
emission standards were either unnecessary or insufficient to protect the public
health and welfare.
5. If the Administrator determines that the public health or welfare are ade-
quately protected by the establishment of emission standards which are less
stringent than those based on best available retrofit, emission standards may
be set at such less stringent level. In such a case, industry and consumers
should not be put to the extra expense necessarily involved in more stringent
control of emissions.
6. If, on the other hand, the Administrator determines that emission standards
on the best available retrofit are not sufficiently stringent to protect public
health and welfare, 5/ emission standards must be established at a more
stringent level which is sufficient to assure such protection. 6/
47The location of section lll(d) in section 111 rather than as a separate sec-
tion, as in the Senate bill, the close relationship of section lll(d) emission
standards to standards or performance under lll(b), and the identity of
sources to which they apply indicate congressional intent to establish such
a presumption requiring the application of the best available technology
applicable to existing sources.
That the presumption was intended to be rebuttable is evident from the fact,
which you point out, that Congress did not intend "to have nationally uniform
emission standards applied to existing sources under section lll(d). " Not
only does section lll(d) provide for the establishment of emission stan-
dards on a State-by-State basis, but Congress rejected section 14 of the
Senate-passed bill, the predecessor of section lll(d), which provided for
the establishment of national emission standards applicable to existing
sources.
_5/ Whether emission standards based on the best available retrofit will be
adequate, more than adequate, or less than adequate to protect public wel-
fare depends to some extent upon local factors, such as the concentration
of sources of a certain type of pollutant and the proximity of such source(s)
to populated areas. To permit consideration of factors such as these, Con-
gress rejected the Senate bill's national emission standards approach.
6/ As your memorandum points out, the standards must "as a minimum,
~~~ [be] adequate for protection of public health or welfare. It may be argued
that it is unreasonable to read section lll(d) to require the application of
emission standards to existing sources which are more stringent than
standards based upon best available retrofit. We do not find this argument
persuasive. The Administrator is implicitly authorized under section 11 l(d)
to establish deadlines for compliance with the emission standards. Rea-
sonable time must be allowed to permit installation of the requisite control
(continued on next page)
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7. In no event, however, may the Administrator require any State to adopt
an emission standard applicable to an existing source under section lll(d),
which is more stringent than the comparable new source performance standard
applicable to such a new source. _J7_/ Since section lll(b) makes no provision
for prohibiting the operation of a new source which meets the applicable stand-
ards of performance, it is inconceivable that Congress could have intended to
permit the Administrator to require an existing source to meet a standard
which cannot be achieved, even through a application of the best available
technology applicable to a new source.
8. In sum, we agree with your memorandum of May 7, 1971, with the addi-
tional provisions we have suggested in paragraphs six and seven of this memo-
randum.
9. As we have previously advised you orally, several other problems remain
to be resolved prior to promulgation of the regulations under section lll(d).
Among the issues which remain to be clarified are the timing for compliance
with the State emission standards and the form that the regulations of the
Administrator will take. We assume these and other relevant concerns are
currently under consideration by your office.
§§'§§§§§
TITLE: Federal Performance and Hazardous Emission Standards -- State
Enforcement
DATE: February 8, 1971
1. A question has arisen with regard to the responsibility of States to enforce
Federal new source performance standards and Federal hazardous emission
standards. A draft of the guidelines document to be issued to States in con-
nection with implementation plans contains what appears to be a request that
each State submit a statement of policy that it will adopt procedures needed to
enforce Federal emission standards when such standards are promulgated. In
another context, APCO has raised the issue in a January 22, 1971, memoran-
dum to this office, asking whether, as a condition of receiving grant assistance
under §105 of the Act, States may be required to enforce such standards.
(Footnote #6 continued from previous page)
equipment. If emission standards adequate to protect the public health
and welfare necessitate the installation of the best available new source
technology, then additional time may be allowed for compliance (i. e.,
replacement of the existing sources with new sources). If, at the end of
the period allowed for compliance, any plant continues to emit in excess
of the emission standard to the detriment of the public health or welfare,
it would be closed.
11 No state is precluded from applying to existing sources a standard more
" stringent than the comparable new source performance standard. See
section 116 of the Act. However, States may not be required to adopt such
a more stringent standard.
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2. Both §111 of the Clean Air Act, which authorizes Federal performance
standards applicable to new sources, and §112, which authorizes Federal stand-
ards for hazardous pollutants, clearly provide that the development, promul-
gation and implementation of the standards are Federal responsibilities. Both
sections however, contain a procedure by which States may undertake the
implementation and enforcement of the respective standards. The pertinent
subsections (lll(c)(l)) and 112(d)(l)) are almost identical in language, i.e.,
"Each State may develop and submit to the Administrator a procedure for
implementing and enforcing... " the standards. [Emphasis supplied]. Under
both sections, "If the Administrator finds the State procedure is adequate, he
shall delegate to such State any authority he has under the Act to implement
and enforce such standards.... Finally each section provides that even after
such a delegation is made, the Administrator retains concurrent enforcement
authority.
3. There is no doubt that under these provisions the implementation of Federal
standards is primarily the responsibility of the Federal government. The
quoted sections are permissive in nature and cannot be construed to place any
legal obligation on the States.
4. Since the law itself does not require States to perform this function, in our
opinion APCO cannot, either as part of its requirements for State implemen-
tation plans or as a condition of grant support to States, impose this require-
ment.
5. This conclusion is not inconsistent with advice previously given by this
office to the effect that APCO has a great deal of latitude to imposing require-
ments on States in connection with both grant support and implementation
plans. In both of these areas the law places the responsibility with the State,
with clear authority in the Federal government to oversee States, and to act
if States fail. This is quite different from the case of the national performance
and hazardous standards. Here, as is appropriate in the case of national stand-
ards, Congress selected EPA as the responsible entity. States were merely
given the option, in appropriate circumstances, to undertake, concurrently
with the Federal government, responsibility for a portion of the implemen-
tation of the standards. There is no justification in the law or the legislative
history for altering this framework by requiring States to undertake this
responsibility.
6. This does not mean of course, that States should not be encouraged and
assisted in developing a program under which they can implement Federal
standards. In this connection it would be helpful to States if APCO developed
and made available to States the criteria by which the adequacy of their pro-
cedures will be judged. We are available to assist in the development of the
criteria.
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SECTION 112 OF THE CLEAN AIR ACT -- NATIONAL
EMISSION STANDARDS FOR HAZARDOUS POLLUTANTS
TITLE: EPA1s Authority to Establish an Ambient Concentration Standard
DATE: August 13, 1974
Mr. Scott H. Lang, Attorney
Environmental Defense Fund
1525 18th Street, N. W.
Washington, D. C. 20036
Dear Scott:
You asked me to advise you what the Agency's position is with respect to
our authority to establish an ambient concentration standard under Section
112 of the Clean Air Act, "National Emission Standards for Hazardous Air
Pollutants".
As I under stand your position, it is that EPA should establish a "safe" ambient
level for a hazardous air pollutant and then set, on a case by case basis, e-
mission standards as are necessary to ensure that the safe level is not ex-
ceeded in any situation. You said that you felt that this would be a preferable
approach to establishing emission standards applicable across the country
which in some cases would be unnecessarily strict and in other cases might
be inadequate to protect the public health.
We share your concern that emission standards established on the basis of
public health, as opposed to considerations of control technology and cost,
could be over or under protective in particular situations. For example, a
standard established to protect the public health from a large number of over-
lapping sources of the same pollutant in a large population area would likely
be unnecessarily restrictive applied to a single source located in an isolated
location. Conversely, an emission standard established on the basis of pro-
tecting the public health from an ordinary concentration of sources and ordi-
nary meteorological conditions might result in a smaller margin of safety in
unusual situations. Nevertheless, we believe that Congress quite clearly in-
tended that EPA would in fact set national emission standards for hazardous
air pollutants under §112 rather than national ambient standards that would
result in varying emission standards on a case by case basis. Congress is
quite clearly aware of the distinction between ambient standards and emission
standards. Congress provided for national ambient standards in Section
109 of the Clean Air Act and emission standards in Sections 111 and 112 of
the Act. Thus, in our opinion Section 112 cannot be construed to permit am-
bient standards. (The ambient concentration limit in §61. 32(b) of the regula-
tion is in reality an emission standard since it applies only to a very few iso-
-------
lated point sources where the ambient limit is effectively a means of meas-
uring the facility's emissions.)
There are also policy reasons for not construing §112 to require or permit
ambient standards. The difference between an ambient level and an emission
level is enormously important in terms of implementation. Implementing
an emission level requires only that techniques of measurement and en-
forcement be developed. The amount of discretion required for such deci-
sions is comparatively small. On the other hand, implementation of an am-
bient level requires that decisions be made as to which sources shall be al-
lowed what emission levels of pollutants in order to maintain the ambient
levels. This decision involves value judgments. In §110 of the Clean Air
Act Congress provided elaborate procedures for translating ambient stand-
ards to emission standards. These procedures, while insuring fairness, re-
quire enormous expenditures of time and manpower at both the State and
Federal Government levels. Accordingly, national ambient air quality stand-
ards can be established only for those pollutants "the presence of which in
the ambient air results from numerous or diverse mobile or stationary sourc-
es." Section 108(a)(l)(B).
Congress envisioned a different type of regulatory process for pollutants
which are hazardous but do not result from numerous or diverse sources.
Section 112 of the Clean Air Act provides for regulation of such sources.
It would be very cumbersome to control such pollutants through the State
implementation plan process. Congress ordered the Administrator of EPA
to directly establish emission standards for such sources. If Congress had
intended to authorize ambient standards under §112, it would so provide, or
at least not specifically require "emission standards. " Furthermore, Con-
gress would presumably have prescribed some method to insure that the
necessary ad hoc determinations required to set emission limits on individual
sources in order to meet the ambient standards were fairly conducted. Adju-
dicatory hearings would probably be required. Some guidance probably
would have been given concerning how judgments were to be made concern-
ing which emissions would be permitted and which eliminated. Would achiev-
ability and cost or the social value of the various emitting industries be
determinative? Would existing sources be preferred over new sources?
In most cases, because the sources of hazardous air pollutants are not "nu-
merous or diverse, " there should be no overlap problem. Standards are set
for different sources that ensure that ambient levels are not reached which
threaten public health. In establishing emission standards under Section 112,
EPA attempted to take into account those situations where several sources
of the same pollutant may be located in the same area. The "margin of safe-
ty" which EPA is required to include in §112 standards will necessarily vary
from place to place, but in no cases will it be eliminated. If we found that it
was eliminated, we would revise our standards accordingly. In this respect
we notethat both the ambient levels considered by EPA in developing its §112
standards and the actual emission standards established to avoid exceeding
the ambient levels have margins of safety built in. Thus, even if the ambient
guidelines are exceeded in a few specific situations, this does not mean that
the margin of safely has been eliminated or that all sources in the country
should be subjected to more stringent standards under §112.
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In summary, we believe that Section 112 on its face makes it quite clear
that the Administrator is to establish emission, not ambient, concentrations
limits for hazardous air pollutants which satisfy the criteria of that section.
Furthermore, we do not believe that it would be wise or appropriate for the
Administrator under the authority of Section 112 to regulate emissions on a
case by case basis.
You also asked whether EPA has authority to issue standards under §112
which would apply to any (i. e., undesignated) sources. Although the statute
does not require that sources to which §112 standards would apply be specif-
ically designated, I believe that it would be a violation of due process not to
do so. Capture and analysis of air emissions usually is quite expensive. A
Section 112 standard required to all (undesignated) sources would require
every stationary source in the country to test its emissions for the pollutant
involved or be in jeopardy of violating Section 112. This is an enormous, and
in our opinion unjustified, burden to impose upon sources which neither EPA
nor the source has any reason to believe is emitting the Section 112 pollutant.
Furthermore, sources which didn't believe they were emitting the §112 pol-
lutant might not be able to test, and thus learn whether they would be affected
by the regulation, until after the comment period on the proposed regulation
had expired. The problem is exacerbated by the fact that §112 only applies
to pollutants for which there is no applicable ambient air quality standard and
therefore is presumably emitted only by a few sources.
A further problem is that EPA believes that the environmental and economic
impact of all its standards should be determined and disclosed to the public.
It would be impossible to make this determination if we don't know what
sources will eventually prove to be subject to our standards.
An additional problem with your suggested approach is that different sources
may have different emission characteristics which require different stand-
ards to protect the public health. For example, some sources have emissions
which are at low temperatures and close to the ground and thus have a con-
siderably greater impact on ambient levels breathed by people than do other
sources which have tall stacks and high temperature emissions. It would be
unnecessary and, therefore unfair, to restrict the latter source to the same
emission limits as the former source.
For these reasons, we believe that §112 standards should be made applicable
only to designated sources. Whenever it appears that additional sources may
emit the pollutant in question in unsafe amounts, we will immediately inves-
tigate the situation and propose and promulgate regulations as necessary to
protect the public health.
While I regret I must disagree with you on both of these issues, I believe we
share the same goal - construing EPA's authority to maximize the protection
of the environment and the public health. Accordingly, I would be pleased to
consider any arguments you may have in opposition to the above positions.
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SECTION 113 OF THE CLEAN AIR ACT -- FEDERAL ENFORCEMENT
TITLE: Enforcement Orders
DATE: July 12, 1972
1. This memorandum confirms oral advice rendered to you over the past
several months concerning the issuance of §113 orders to alleged violators
of implementation plan requirements. In addition, as you requested, it re-
sponds to several points raised by the Legal Support Division (LSD) of the
Offfice of Water Enforcement in a memorandum commenting on SSED's pro-
posed guidelines for enforcement. I/
2. We have previously advised you that the Clean Air Act does not require
an opportunity for a formal or informal hearing of any type, other than the
"opportunity to confer with the Administrator: required by §113(a)(4), before
an order maybe issued to take effect 2j under §113. This advice is consist-
ent with the statement in the LSD memorandum (p. 4) that the Act neither
requires nor forbids providing an opportunity for a "quasi-judicial" hearing.
In addition, we have advised you that neither the Administrative Procedure
Act 3_/ nor constitutional due process 4_/ requires the Agency to provide an
T/ Memorandum to Director, Legal Support Division, from Carol A. Cowgill
(subject: "Comments on Proposed Guidelines for Enforcement Actions A-
gainst Violations of Air Quality Implementation Plans"), June 29, 1972
[hereafter cited at "LSD memorandum"]
2j For purposes of our analysis, we have assumed that the phrase "take
effect" in §113 (a)(4) refers to the time atwhicha§113 order becomes suffi-
ciently "final" that civil or criminal proceedings may be commenced for
its violation.
3_/ It is well-established that the Administrative Procedure Act does not
require formal hearings, either for adjudication or for rulemaking, where
such hearings are not required by some other statute or by the Constitu-
tion. E.g., Sisselman v. Smith, 432 F. 2d 750, 754 (3d Cir. 1970,
and cases cited. As discussed in paragraphs 4 and 5 below, we believe
due process does not require hearings at the administrative level in con-
nection with the issuance of §113 orders.
As we discussed, §6(a) of the Administrative Procedure Act, codified^
in 5 U. S. C. §555(b) (1970), can be read as conferring a right to "appear
in connection with the issuance of §113 orders, both for the alleged vio-
lators and for interested persons. Assuming that this reading is correct,
however, the provisions of §6 (a), standing alone, do not purport to require
formal hearings, particularly when compared with provisions intended
to require hearings and related procedures. E.g., 5 U.S. C §§553, 554,
556, 557 (1970).
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opportunity for a fornial administrative hearing before a §113 order may
be issued or take effect. This advice appears to be consistent with the anal-
ysis presented in the LSD memorandum, which argues that formal hearings
would be desirable for various reasons but, with one possible exception,^/
does not argue that they are mandatory.
3. As you know, our previous advice was based on relatively extensive re-
search, the results of which are reflected in a draft memorandum approxi-
mating 40 double-spaced pages in length. Although time has not permitted
us to issue the memorandum in final form, its contents have been reviewed
within this office and, we believe, reflect the present state of the law. On
that basis, we reaffirm the advice previously rendered on the points mention-
ed above.
4. A brief summary of our views with respect to due process requirements
may be useful for present purposes. We believe that a party to whom a §113
order has been issued is entitled to an opportunity to be heard on disputed
matters before coercive sanctions may be imposed for a violation of the or-
der. Due process does not necessarily require, however, that an opportu-
nity to be heard be provided at the administrative level. It is ordinarily suf-
ficient if a party affected by an opportunity to present all available defenses
to court (for example, in civil or criminal enforcement proceedings) before
coercive sanctions may be imposed.
5. A somewhat different question arises in the case of §113 orders, because
violation of such an order is a separate ground for the imposition of criminal
penalties. 11 In such cases, the possibility of testing the order in proceedings
4/ .See paragraphs 4 and 5, infra.
5/ See note 15, infra.
6_/ E.g., Rowan v. United States Post Office, 397 U. S. 728, 738-39(1970),
and cases cited. Where administrative action may have an immediate and
drastic effect on the affected party, however, without serving an overrid-
ing governmental or public interest in summary action, due process may
require an opportunity to be heard before the action is taken. E.g.,
Goldberg v. Kelly, 397 U.S. 254, 262-64 (1970), and cases cited. We
believe such actions are distinguishable from the issuance of §113 orders;
e.g., in terms of the types of interests at stake and the consequences
of the actions for the affected parties. Id. at 264. As to the rights of
third parties affected by §113 orders, see generally Getty Oil Co. v.
Ruckelshaus, _F. Supp. , Civil No. 4366 (D. Del., May 10, 1972),
slip op. at 17 n. , 32-38.
l_l Although criminal penalties may be imposed if a violation continues more
than 30 days after issuance of a §113 notice (except in the case of a violation
of §114), the requirements with which a source must comply in such a case
are pre-existing requirements established by approval or promulgation of
the applicable implementation plan and subject to challenge under §307 at
the time of approval or promulgation. With some reservations, we believe
such cases fall within the general rule referred to above. See, e.g.,
Rowan v. United States Post Office, supra note 6, at 738-39; Ewing v.
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brought for its violation may be insufficient, standing alone, to satisfy due
process. 8/ Assuming that this rule is still the law, 9/ however, recent de-
cisions appear to establish that due process is satisfied in such cases by
the opportunity to test the validity of an administrative order (a) in pre-en-
forcement review proceeedings or (b) in enforcement proceedings in which
penalties are stayed pending review of the order. 10/ Even if this were not
true in the case of §113 orders, the result woulcTEe about the same; i.e..
an injunction against enforcement of an order or imposition of penalties uh-
til the validity of the order had been tested in court. 11_/ In either case,
available defenses could be presented in court, and due process would not
require an opportunity for hearing at the administrative level.
6. As noted above, the LSD memorandum argues that formal administrative
hearings would be desirable for a variety of reasons. Although we would a-
gree that most of the points raised in the memorandum suggest the desira-
bility of formal hearings, we understand that they have been considered at
some length in previous discussions of the question. In any event, we believe
that some adverse practical consequences of providing such hearings de-
serve mention if the question is reopened at this time.
7. If the number of enforcement actions taken under §113 is large, as we
expect it to be, it could severely strain the Agency's resources to provide
77 Mytinger, 339 U.S. 594, 598-99 (1950). Where a §113 order is issued,
however, the order may impose new requirements (e.g., "milestones"
to assure compliance) with which a source must comply or risk criminal
penalties. In such cases, as indicated in the text, a somewhat different
rule may apply.
8/ E.g., Oklahoma Operating Co. v. Love, 252 U.S. 331 (1920); Ex parte
Young, 209 U.S. 123, 147-48 (1908). But see note 9, infra. The rationale
of the rule is that, if the validity of the order can be tested only by
disobediance, the threat of criminal penalties can so deter a challenge
that the opportunity to present available defenses has been effectively
"denied. E. g., Oklahoma Operating Co. v. Love, supra, 252 U.S. at
336-37.
9/ The scope and vitality of the rather old decisions cited in note 8, supra,
~~ may be questionedin view of more recent decisions. See, e.g., Reisman
v. Caplin, 375 U.S. 440, 446-50 (1964). See alsoTIark v. Gabriel,
393 U.S. 256, 259 (1968).
10/ E.g., Reisman v. Caplin, 375 U.S. 440, 446-50 (1964) (dictum); St. Re-
~~ giFPaper Co. v. United States, 386 ULSL 208, 225-27 (1961) (dictum);
Genuine Parts Co. v. FTC, 445 F. 2d 1382, 1392-93 (5th Cir. 1971)
See also Abbott Laboratories v. Gardner, 387 U.S. 136, I5fa (lab/),
and companion cases; Getty Oil Co. v. Ruckelshaus, F. Supp,
, Civil No. 4366 (D. Del, May 10, 1972), slip op. at 37.
Ill Oklahoma Operating Co. v. Love, supra note 8, 252 U.S. at 337-38;
— Ex parte Young, supra note 8, 209 U.S. at 148, 165.
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formal hearings whenever orders are issued. 12/ In many cases, the issu-
ance of orders may bring about compliance without the necessity of further
proceedings. In such cases, formal hearings would be an unnecessary bur-
den. 13/ In other cases, where large amounts of money are at stake, or
where~alleged violators have an interest in delaying enforcement as long as
possible, we doubt that many lawsuits would be forestalled by the device of
providing hearings. In such cases, the Agency would face the burden of
two formal proceedings rather than one. 14/
12 / It might be argued that the Agency should undertake enforcement
actions only when it has the resources to conduct full hearings in each
case. If so, we doubt that the Agency could fulfill its mandate under
the Clean Air Act. We believe Congress intended the §113 order to pro-
vide a more expeditious means of enforcement than civil or criminal
proceedings, and that it expected the Agency to exercise its various
powers of enforcement to the maximum degree necessary to bring about
rapid compliance with the implementation plans. See, e. g., Sen. Rep.
No. 91-1196, 91st Cong., 2d Sess. 21(1970). InTEis regard, it should
be noted that attainment of the national standards within the times speci-
fied in the implementation plans, as mandated by Congress, depends
on timely compliance with the requirements of the plans. In other words,
if significant numbers of polluters are not forced to comply according
to schedule, the intent of Congress will have been frustrated.
13/ It might be argued that the Agency need offer only an opportunity for
hearing, in which case the number of hearings actually conducted might
be substantially reduced. If an opportunity for hearing is provided, how-
ever, we believe many companies that would have complied with orders
in the absence of hearings will be tempted to request such hearings on
the ground that they have nothing to lose and, at the least, will gain time
by going through the additional procedure.
14/ The LSD memorandum (p. 4) argues that judicial review of an order is-
sued after a formal hearing would be limited to application of the sub-
stantial evidence test. If so, the burden of judicial review would be
lessened to some extent. It should be noted, however, that there is some
question whether the substantial evidence test would apply when, as
here, hearings would be provided although not required by the Admini-
strative Procedure Act or other pertinent statutes. See 5 U. S. C. §706(2)
(E) (1970). As you know, our preliminary research on that question
has disclosed conflicting authorities. Compare, e. g., Jordan v. United
Insurance Co. of America, 289 F. 2d 778, 7ST(D. C. Cir. 1961)
(de novo trial proper), and cases cited, with U. S. Pept 109-10 (1947)
(de novo trial improper), and cases cited. See generally 4 K. Davis,
Administrative Law Treatise §§29.01 et seql (1958); F. Cooper, Ad-
ministrative Agencies and the Courts 346-47 (1951). Accordingly, ~w"e
cannot render a definitive opinion on the question without further re-
search.
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8. Probably the most important factor is that, for resourceful corporate
counsel, the administrative hearings would provide a host of opportunities
for delay, as well as an additional set of issues to raise in subsequent litiga-
tion; i. e., the adequacy and fairness of the hearing procedures, the propriety
of rulings on evidence and similar matters. In view of the cumulative bur-
dens and delays that could result, the inherent advantages of the enforcement
order, as opposed to civil and criminal proceedings, would largely vanish.
9. You have asked that we comment on several additional points raised in the
LSD memorandum. With respect to citizen participation in the process of
issuing §113 orders (p. 5 of the memorandum), a partial answer is that citi-
zens have many opportunities to partcipate in the development and enforce-
ment of implementation plans, including the options of (a) intervening in State
or Federal suits to enforce the plans or (b) suing alleged violators directly
if the States and the Agency do not resort to the courts. Without elaboration
of that statement, we should note that citizens' dissatisfaction with §113 or-
ders will ordinarily focus on the time permitted for compliance with such
orders. As we have previously advised you, we do not believe that §113
orders, without more, will bar citizens from suing to enforce the original
deadlines in such cases. 15/
10. The LSD memorandum (pp. 3-4) questions the legality of providing an
"opportunity to confer" after issuing an order under §113. Although it may
be preferable as a matter of policy to provide the "opportunity to confer"
before issuing an order, as the guidelines suggest for all but exceptional
cases, the Act does not purport to require this procedure. It requires only
that the "opportunity to confer"be provided before an order may "take effect. '
There is no legislative history with respect to this requirement and, given
that the Agency does not presently intend to treat the "opportunity to confer"
as a formal hearing, we see no legal objection to the procedure suggested
in the guidelines.
11. The LSD memorandum (pp. 5-6) suggests, citing 5 U. S.C. §551 (a), that
the proposed guidelines will not be legally effective unless published in the
Federal Register. You have indicated that the guidelines are, in fact, in-
tended to provide guidance to EPA personnel, rather than to bind other
parties, and have asked whether the requirements of 5 U.S. C. §552(a) are
applicable in such cases. Our preliminary research on that question suggests
15/ The discussion in the text assumes that the questions of permitting citi-
zens to take part in the process of issuing §113 orders is solely one
of policy. If so, the protections otherwise afforded to citizens' rights
under the Act are proper considerations in determining the policy. The
LSD memorandum (p. 5) suggests, however, that an opportunity for
citizen participation in the process may be required by recent decisions
broadening the concept of standing. Although we believe citizens would
be entitled to intervene if the Agency provided hearings before issuing
§113 orders, we are unprepared to conclude that they are entitled to
take part in an informal §113 conference. See National Welfare Rights
Organization v. Finch, 429 F. 2d 725 (D. CTCir. 1970); cf. paragraph
12, infra. Nor do we believe the decisions on standing require the
Agencylb provide hearings where none are required by statute or by
the Constitution.
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that it is more complex than might first appear. J.6_/ In view of its
nificance for the Agency, we believe we should refrain from expressing
an opinion until we have had an opportunity to examine the question further.
12. Finally, the LSD memorandum (p. 3) suggests that States should be in
vited to take part in conferences held under §113(a){4), and that the guide-
lines should so require. Although this may appear to be solely a matter
of policy, we believe it has legal implications as well. Aguideline "requiring"
that States be invited would (a) eliminate, as a practical matter, the present
option of excluding States in exceptional cases; (b) suggest that other inte-
rested parties, including the public, are (or should be) entitled to take part
in the conferences. As we have discussed, such a guideline could be chal-
lenged by the party to whom a §113 order is issued, on the ground that
he is entitled to a private conference under §113{a)(4). 1TJ Until the issue
is resolved, and until the" Agency has had more experience under §113, it
may be desirable to retain the flexibility permitted by the proposed guide-
lines.
13. Aside from the points discussed above, most of the comments in the
LSD memorandum appear to concern mainly matters of policy. Accord-
ingly, we have not attempted to address all the issues raised by the memo-
randum. As illustrated by the suggestion that States be invited to take part
in §113 conferences, however, some of the policy suggestions may liave
legal implications that should be considered before the suggestions are
adopted.
16/ For example, the Attorney General has taken the position that operat-
ing instructions, guidelines, and similar materials intended only for the
use of agency staff are exempted^ from the requirements of 5 U. S. C.
§552 (a)(l), but that noF~all matters of internal management are so
exempted. U.S. Dep't of Justice, Attorney General's Memorandum on
the Public iSomiition Section of the Administrative Procedure ActlT
(1967). Similarly, where an agency provides opportunities for informal
conferences on matters within its jurisdiction, the Attorney General
states that "the fact that the practice exists should be stated in the
Federal Register" but does not address the question whether internal
guidelines concerning such conferences need be published. 1(1. at 9.
Finally, he appears to interpret 5 U. S. C. §552 (a)(2) as requiring
public availability (as opposed to Federal Register publication) of such
material when they "affect any member of the public," particularly
when they contain standards that guide agency action; but not where
confidential treatment is necessary 'if they are to serve the purpose for
which they are intended. "Id. 16-17. In short, the question you pose is not
readily answered.
17/ For present purposes, we note that the legislative history is silent on
the question, which we view as a difficult one.
§§§§§§§
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TITLE: Enforcement of Short-Term Violations of Implementation Plans
SDATE: July 5, 1973
BACKGROUND
During a briefing of the Senate and House Staff on Supplemental Control
Systems (SCS), a question was raised about Federal enforcement. Speci-
fically, the question concerned the situation where a SCS system was un-
successful, causing a two or three hour or perhaps a two or three-day
violation of an ambient air quality standard. The Staff questioned whether
or not EPA was precluded from enforcing. The reason for the uncertainty
is that pursuant to §113 of the Clean Air Act, enforcement procedures
provide that a source be given 30 days notice of any violation of an imple-
mentation plan. Only if the violation continues beyond the 30-day period
can an order be issued or an injunction sought.
DISCUSSION
At the outset, it should be clearly understood that the question presented
is a difficult one, but it is not a question which arises only in connection
~with SCS systems. There are many air quality control regions in which
there are one or a few significant sources, all of which must have sub-
stantial controls to meet the national ambient air quality standards. As-
sume for the moment that SCS is not used, and permanent controls are
applied to all sources. Where one of the sources puts on a precipitator
which, instead of getting the required percentage of control, is inefficient
and simply does not meet the emission limitation to which the source is sub-
ject, enforcement is simple. There is an obvious violation of the emission
limitation. The violation will continue beyond 30 days since the precipi-
tator is not adequate. This is no different from the SCS situation where there
is a continuous violation of an ambient air quality standard. The violation
would not be "continuous" in the sense that it would exist for every hour
or every day of a 30-day period. But if the system could be seen to be
inadequate, as evidenced by rather frequent violations under certain con-
ditions, a notice of violation would issue and the subsequent proceedings
commenced. It is important to note that in both cases the violation of
--.the applicable implementation plan may cause a violation of the national am-
bient air quality standard and enforcement would essentially be the same.
It is true that in some cases there might be some slightly longer delay
before we could make the judgment that the SCS system was inadequate,
but generally we have a situation where if the system does not work, no
problem is presented.
The more difficult situation is the short-term violation. In the terms
discussed by the Staff the question was raised as to EPA's ability under
§113 to do something when there was an occasional violation of a standard.
Again it should be understood that this same problem exists without regard
to whether the controls involved are permanent or supplementary. Re-
turning to the hypothetical, in those many regions where there are a limited
number of sources which, upon failure of control systems, will result in
violations of ambient air quality standards, we fully expect that the short -
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term violation will be an enforcement problem. Specifically, if a precipi-
tator or other permanent control device breaks dov/n for an hour or a
day or any period shorter than 30 days and the plant continues to function,
the question of the applicability of §113 is raised.
EPA takes the following view of the situation. First of all, where a preci-
pitator or scrubber or other permanent control device breaks down for a
short period of time, is repaired as rapidly as is reasonably possible, and
operating practices are such that precautions against the same action being
repeated are taken by the source operator, ordinarily there should be
and will be no enforcement. The state-of-the-art is not such that sources
who in good faith purchase equipment and do their best to maintain and
operate it properly, should be penalized for minor violations not within
their control. Where, however, there is a pattern of these breakdowns in
the case of any single source, EPA, upon a determination that the owner
or operator is not taking the necessary steps to prevent such occurences,
will treat such breakdowns as continuing violations, i. e^_, a breakdown of
a precipitator every ten or twenty days, which the Agency determines is
dua to lack of maintenance which the operator should be performing, will
be treated as a "continuing violation. " We will issue a notice of violation;
at the end of the 30 days an order can be issued requiring the owner to per-
form the required maintenance, ,or a legal action can be instituted to secure
a Court order requiring the action.
This same approach applies to supplementary control systems. As a matter
of fact these systems may offer some advantage. Where there is a single
violation for a short period of time, it may be possible, without waiting
for additional occurrences, to analyze the meteorological and operating
conditions which prevailed at the time of violation and order an immediate
revision of the criteria which triggers the supplemental control system.
If the violations continue with relative frequency, just as in the case where
permanent controls are concerned, it will be treated as a continuing vio-
lation and a 30-day notice will issue and appropriate proceedings taken
to enforce against the violator.
§§§§§§§
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TITLE: Employment of Enforcement Procedures under Section 113
of the Clean Air Act in Concert with National Hearing on
Feasibility of Sulfur Oxides Control Technology for Coal-
Fired Electric Power Plants
DATE: September 14, 1973
SUMMARY
By memorandum dated August 13, 1973, you have asked us three legal ques-
tions. Those questions, and our answers to them, are set out below.
Question 1
May EPA take legal action against Federal (in particular, TVA) facilities
under Section 113 of the Clean Air Act?
Answer 1
Though the issue is not free from doubt, our view is that the answer is
"Yes, " particularly if the facilities in question are owned by TVA.
Question 2
Would a comprehensive "legislative" type hearing on the availability of sul-
fur oxides control technology held in connection with the issuance of notices
of violation under §113 to certain sources satisfy the requirement of that
section that recipients of an enforcement order be allowed to "confer" with
EPA before the order takes effect?
Answer 2
Yes, if the recipients of the notice were allowed to discuss their own parti-
cular situations as well as the status of technology in general. In fact, the
rights afforded would in our view be far more than the law requires. Though
there is no objection to this, our opinion that we are doing more than neces-
sary should be clearly stated in the Federal Register notice to avoid setting
a precedent.
Question 3
May individuals be compelled to appear in person at this hearing and testify
under oath?
Answer 3
The question whether personal appearances may be compelled is the closest
question presented here. However, we believe there are sound legal argu-
ments under §114 of the Clean Air Act in favor of compelling such appear-
ances by employees of companies that own or operate emissions sources.
If such appearances can be compelled, it would follow that false statements
could be punished, although most likely no formal oath could be administered.
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However, we see no valid way to compel personal appearances by individuals
who are not employees of companies that own or operate such emissions
sources, or who do not own or operate such sources themselves.
DISCUSSION
1. May EPA sue TVA under §113(b) or §113(c) of the Clean Air Act?
a. The Intent of the Statute
Section 113 (a) of the Clean Air Act provides that if the Administrator finds
that "any person" is in violation of any provision of an applicable implementa-
tion plan, he shall notify them of their violation. If the violation has not
been voluntarily corrected within thirty days of this notice, the Adminis-
trator may issue a compliance order commanding it to be corrected, and
compliance with the order may be enforced either through court orders,
§113(b), or by court-imposed fines of $25, 000 per day of violation, §113(c).
The word "person" is defined in Section 302(e) as follows:
The term "person" includes an individual, corpora-
tion, partnership, association, State, municipality,
and political subdivision of a State.
This definition, comprehensive as it is, does not include any agency of the
Federal government, and it might well be argued that this exclusion shows
that Congress did not intend to include such agencies in the definition, and
hence did not intend to subject them to the enforcement provisions of §113.
However, the definition of "person" in §302(e) begins "The term 'person'
includes (emphasis supplied). Each of the five other definitions in that
section begins "the term'x' means" (emphasis supplied). Both this contrast
in language and the common meaning of the word "includes" indicate that
when the term "person" is used in a passage of the Clean Air Act, it may
encompass entities not explicitly mentioned in Section 302(e) if the context,
or the policy of the statute, call for a broader reading.
If the definition in §302(e) is not exclusive, the question is whether a Federal
facility may be included in the term "person" by implication. There is a
presumption that the word "person, " when used in a statute, does not in-
clude the Federal government. United States v. Cooper Corporation. 61
S. Ct. 742 (1941). However, the opinion in that case also emphasizes
that there is "no hard and fast rule of exclusion, " 61 S. Ct. 743-44. Indeed,
the case has been cited far more for the second of these two propositions
than for the first.
The portion of the Clean Air Act that deals most directly with the duties and
obligations of Federal facilities is section 118. It provides that "[e]ach
department, agency, and instrumentality of the executive, legislative, and
judicial branches of the Federal government . . . shall comply with Fed-
eral, State, interstate, and local requirements respecting control and abate-
ment of air pollution to the same extent that any person is subject to such
requirements" unless it has been exempted by the President.
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There can be no dispute that this language requires compliance with the
substantive emissions limitations of State plans. See memorandum of
Jeffrey H. Schwartz to John R. Quarles, Jr., March 27, 1972. It might
be argued, however, that the statute in commanding compliance by Federal
agencies " to the same extent that any person is subject to such require-
ments" (emphasis supplied) is emphasizing that Federal agencies are not
"persons" within the meaning of the statute (and hence of §113) but simply
should comply with the same substantive emissions control requirements.
This, however, is a technical argument based on one particular reading of
an ambiguous passage. That reading, in our opinion, is not consistent with
the evidence of Congressional intent contained in the legislative history
of §118. The legislative history makes clear that by 1970 Congress had
formed a low opinion of the clean-up efforts of Federal agencies under prior
law, and that when it passed Section 118 it meant to compel Federal agen-
cies to match the performance of private persons and if possible take the
lead in complying with air quality standards.
The prior law had stated:
It is hereby declared to be the intent of Congress that
any Federal department or agency having jurisdiction
over any building, installation, or other property
shall, to the extent practicable and consistent with
the interests of the United States and within any avail-
able appropriations, cooperate with the Department
of Health, Education, and Welfare and with any pol-
lution control agency in preventing and controlling the
pollution of the air in any area insofar as the discharge
charge of any matter from or by such building, instal-
lation, or other property may cause or contribute to
pollution of the air in such area. 81 Stat. 499.
and had included in addition an authorization to the Secretary of HEW to
establish categories of Federal sources that would need a permit9could only
be revoked if the Secretary found that pollution from the covered facility
was endangering the health or welfare of persons.
Both House and Senate versions of the Clean Air Amendments of 1970 had
sections that made Federal compliance with local emissions standards man-
datory. The House report said of this section
Instead of exercising leadership in controlling or eli-
minating air pollution, the Federal Government has
tended to be slow in this respect. The foregoing pro-
visions are designed to reverse this tendency. H.R.
Report No. 91-1146 (91st Cong., 2d Sess.) (1970) pp.
4-5.
and the Senate report said
This section would require every Federal agency with
control over any activity or real property to provide
national leadership in the control of air pollution in
such operations.
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Evidence received in hearings disclosed many inci-
dents of flagrant violations of air and water pollution
standards by Federal facilities .... The Federal
Government cannot expect private industry to abate
pollution if the Federal Government continues to pol-
lute at will. S. Rep. No. 91-1196 (91st Cong., 2d
Sess. ) (1970) p. 23 (henceforth cited "Senate Report").
Similar statements were made on the floor of both Houses.
Given such a clear expression of Congressional intent, the rule should apply
that a court "cannot, in the absence of an unmistakeable directive, construe
[a statue] in a manner which runs counter to the broad goals which Congress
intended it to effectuate. " F.T.C. v. Fred Meyer Inc., 88 S. Ct. 904,
908 (1968).
It is inconsistent with the Congressional intent expressed above to read sec-
tion 118 as exempting federal agencies by implication from the full scope
of the enforcement mechanism set up to ensure compliance. A reading of
the statutory language that would better serve this statutory purpose is to
take the phrase to the same extent" used to connect the descriptions of the
compliance responsibilities of federal and non-federal sources as intended
to set the two categories of sources it connects strictly equal to each other
in respect of their obligations under the Clean Air Act, and by extension
to make federal sources as liable as other sources to enforcement under
§113. */ Indeed, it is hard to see how there can be assurance that federal
*1It might be argued that the difference in the phrases used in §118 to
describe the respective obligations of federal and private facilities also sup-
ports the position that Federal facilities are not "persons. " The statute
uses words of jurisdiction -- "subject to" --to describe the relationship
of private persons to the plan requirements, and these words necessarily
imply that legal enforcement of the requirements is possible. In contrast,
the words used of federal facilities are "shall comply, " and could be read
as simply describing what the agencies themselves are called upon to do,
without raising any inference of legal enforceability. Although this is a
respectable minor argument, it overlooks the fact that the terms "subject
to" and "shall comply" may simply be ways of describing the same thing
from two different viewpoints. To describe private sources as "subject
to" the plan is to describe them from the viewpoint of the plan, as it were,
while to use the words "shall comply" of federal agencies may simply describe
the same situation from the point of view of the agency and its obligations.
If this interpretation is adopted, it can be seen that the use of the words
"shall comply" does not support an inference that federal agencies are not
subject to a plan any more than the use of the words "subject to" of others
indicates that .they need not comply. In other words, the passage could just
as well be written to say that each federal agency "shall be subject to Fed-
eral, State, and interstate and local requirements respecting control and
abatement of air pollution to the same extent that any person is subject to
such requirements. " In fact, §304 makes clear beyond dispute that Federal
(footnote continued on next page)
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facilities will in fact comply "to the same extent that any person is subject
to such requirements" if they are not subject to the same methods of enforce-
ment.
A federal agency might argue in response to this position that the necessary
assurance of compliance will be provided by enforcement actions brought
by states and citizens against it under §304, which are clearly authorized,
and that there is therefore no need to stretch the Act's language in order
to authorize suits by EPA as well. It could support this argument by refer-
ence to page 59 of the Senate Report, which, in discussing section 118,
states
The Governor, the Attorney General, or any citizen
of any state affected by a failure of a Federal agency
to comply with the provision of this Act may seek to
enforce [§118] under section 304 of the Act. See also
Senate Report p. 37.
No mention is made of EPA enforcement.
However, a failure to state explicitly in a committee report that something
is permitted is very weak evidence of Congressional intent not to allow, it
and does not negate any inferences that may be drawn from the language
and purpose of the statute. See Nat'l Petroleum Refiners Ass'n. v. Federal
Trade Commission, slip opinion. No. 72-1446 (D.C. Cir., June 2T, 1973)
p. 7. In this case, both the purpose of the statute, as set forth in the legis-
lative history, and the structure of §304 viewed in the context of the statute
as a whole indicate that EPA suits against Federal facilities were contem-
plated.
Senator Muskie said twice on the floor of the Senate that the Public Works
Committee did not regard the citizen suit provision of Section 304 as the
best way of enforcing the Act. See Cong. Rec. pp. S16092 (September 21,
1970); S20598 (December 18, 1970). This argues they did not intend it to be
the sole means of enforcing compliance by Federal agencies.
In addition, a careful reading of the text of Section 304 shows that it provides
the most direct textual support to be found in the statute for EPA suits
against federal facilities.
#_/ (footnote continued from previous page)
agencies are "subject to" plan requirements in every sense at least where
enforcement actions brought by plaintiffs other than the federal government
are concerned. But this reading, if it is the correct one, suggests quite
clearly that the duties of the Federal agency under §118 are so similar to
those of others under other portions of the statute that the only logical way
to put them into effect is to regard those agencies as "persons within the
meaning of the statute.
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Subsection (a) of that section reads in relevant part as follows:
(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 Amend-
ment to the Constitution) who is alleged to be in viola-
tion of (A) an emission standard or limitation under
this Act or (B) an order issued by the Administrator
or a State with respect to such a standard or limita-
tion, . . .
The district courts shall have jurisdiction, without re-
gard to the amount in controversy or the citizenship
of the parties, to enforce such an emission standard
or limitation, or such an order, . . . as the case may
be.
This subsection makes quite clear that a citizen may sue a federal agency
to enforce compliance with emissions limitations. However, it also assumes
that one of the grounds for such a suit may be that the agency is "alleged
to be in violation of ... an order issued by the Administrator. " But such
an order can only be issued to a "person" within the meaning of §113(a).
If a federal agency is thus a "person" within the meaning of §113(a), it would
follow that it was also a "person" within the meaning of §§113(b) and (c),
since the mainfunction of a §113(a) order is to give fair warning and encour-
age voluntary compliance before EPA goes into court under the two succeed-
ing sections.
Subsection (b) of section 304 strengthens the inference that the Administrator
may sue a federal agency. It provides that no citizen suit against any source
including such an agency maybe commenced until the Administrator has been
notified. In the case of sources which are not federal facilities, this pro-
vision is plainly meant to give the Administrator a chance to join the suit or
take enforcement action on his own, and there is no indication in the statute
that the same meaning is not intended for federal facilities as well. The
next sentence makes the point even clearer --it provides that no action
under Section 304(a)(l) may be maintained
if the Administrator or [the] State [having jurisdiction]
has commenced and is diligently prosecuting a civil ac-
tion in a court of the United States or a State to require
compliance with the standard, limitation, or order.
Again, the structure of the provision suggests that such a suit might be
brought against a Federal agency by the Administrator, and there is nothing
in its language or legislative history to cast doubt on such a reading. In
fact, the Senate Report indicates a main purpose of §304 was to spur Federal
and state enforcement action. See Senate Report, pages 36-37.
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Finally, section 304(c)(2) provides that "the Administrator, if not a party,
may intervene as of right in any suit brought under that section. Given
that the Administrator may thus participate as an adverse party of record in
a suit against a federal facility provided only that someone else has filed
the initial complaint, it is hard to see why Congress would have intended
to deny him the right to file such suits directly.
This reading of Section 304, if it is the correct one, is highly relevant to
the interpretation both of §118 and §113. The Supreme Court has stated:
We believe it fundamental that a section of a statute
should not be read in isolation from the context of the
whole Act, and that in fulfilling our responsibility in
interpreting legislation, "we must not be guided by a
single sentence or member of a sentence, but [should]
look to the provisions of the whole law, and to its object
and policy. " [citationomitted] Richard v. United States,
82 S. Ct. 585, 591-92 (1962) ~~ ~ "~ "
b. The Legal Background
The question whether an enforcement action by one federal agency against
another would conflict with precedent or raise serious Constitutional ques-
tions is highly relevant to a determination whether Congress intended to au-
thorize such suits by EPA under the Clean Air Act. If significant legal
difficulties would be raised by such an authorization, the courts would cer-
tainly demand much clearer evidence of Congressional intent to grant it than
they would if such background difficulties were absent.
In fact, I have been unable to find any cases at all in which one federal
agency sued another to enforce a regulation against it. Though this is not
by itself a valid objection to the propriety of such a suit, I think that as a
practical matter the courts might well be unwilling to sustain one simply
because they had never seen anything like it before.
The courts might resort to any one of four closely related arguments to throw
out such a suit:*_/
i. The Constitution requires a "case or controversy" to exist
before the courts may rule in a proceeding, and no dispute con-
crete enough to meet this definition can exist between Executive
agencies, since the White House always has power to resolve it.
^7 They might also do it by statutory construction, relying on both the argu-
ments advanced in section (a) above and on the presence of authority in this
specific field for the principle that statutes which subject the government to
suit must be strictly construed, Defense Supplies Corp. v. United States
Lines, 148 F. 2d 311 (2d Cir. 194~5TFor a closely related principle, see
Federal Power Commission v. Tuscarora Indian Nation, 80S. Ct. 543,555
(1960). Given the leading role Congress has assigned to EPA in enforcing
the Clean Air Act, to allow EPA to sue other federal agencies would probably
increase the burden of litigation on them above that which citizen suits
alone would impose.
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ii. A court that ruled on intra-Executive matters would be in-
vading the prerogatives of the President to manage the Executive
Branch. In other words, the case presents a "political question. "
iii. It is a general legal principle that no person may sue him-
self, and the United States is a single "person" in the eyes of
the law.
iv. The Justice Department is by law charged with conducting
the government's litigation, and it would be anomalous for it
to appear on both sides of a case.
For a general discussion of these arguments, see Note, Judicial Resolution
of Administrative Disputes Between Federal Agencies, 62 Harv. L. Rev.
1050-58 (1951).
Nevertheless, courts often hear and decide cases in which two agencies pre-
sent conflicting positions, and the Justice Department itself has well estab-
lished procedures by which agencies with differing legal views may present
them to the courts for resolution. For a. general discussion of this matter,
see Stern, "'Inconsistency' in Government Litigation, " 64 Harv. L. Rev.
759-769 (1951).
In some instances, one agency simply participates as amicus curiae in a case
where another agency and a private person are the parties of record. In
others, however, the two agencies are the adverse parties both in fact and
name.
The leading case here is United States v. Interstate Commerce Commission.
69 S. Ct. 1410 (1949), though earlier Supreme Court cases had allowed
agencies to be parties against each other without discussing the point. See,
e.g., Interstate Commerce Commission v. Inland Waterways Corp., 63 S.
Ct. 1296, 1303 (1943) (Secretary of Agriculture v. ICC); Interstate Com
merce Commission v. Jersey City, 64 S. Ct. 1129 (1944) (Office of Price
Administration v. TCC).
United States v. ICC arose out of government shipments by railroad of
military supplies to the port of Norfolk during World War II. The appli-
cable tariffs 'included a fee for moving the supplies from the freight yard
to the loading pier, work which the government in fact had done and paid
for itself. The Government petitioned the ICC for an order to recover these
sums from the railroads, lost, and then challenged the ICC order in court.
The statutory three-judge court dismissed the appeal upon finding that it
involved a suit by the United States against itself. United States v. ICC, 78
F. Supp. 580 (D. D.C. 1948). The governing statute provided that suits
against the ICC should be brought against the United States as named defend-
ant and the legislative history indicated they should be defended by the De-
partment of Justice. Yet here the United States was also appearing on
the other side. In fact, the same Assistant Attorney General had signed
the pleadings for both sides. 78 F. Supp. 583.
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This made it clear to the court that the United States was attempting to sue
itself, and that there was no case or controversy, since "No person may
sue himself. " The suit was accordingly dismissed.
These same arguments were presented to the Supreme Court, *_/ which had no
trouble rejecting them. Justice Black said: ™
There is much argument with citation of many cases
to establish the long-recognized general principle that no
person may sue himself. Properly understood the gen-
eral principle is sound, for courts only adjudicate justi-
ciable controversies. They do not engage in the aca-
demic pastime of rendering judgments in favor of per-
sons against themselves. Thus a suit filed by John
Smith against John Smith might present no case or con-
troversy which courts could determine. But one person
named John Smith might have a justiciable controversy
with another John Smith. This illustrates that courts
must look behind names that symbolize the parties to
determine whether a justiciable case or controversy is
presented.
While this case is United States v. United States, et
al., it involved controversies of a type which are tra-
ditionally justiciable. The basic question is whether
railroads have illegally exacted sums of money from
the United States. Unless barred by statute, the Go-
vernment is not less entitled than any other shipper to
invoke administrative and judicial protection. To col-
lect the alleged illegal exactions from the railroads
the United States instituted proceedings before the In-
terstate Commerce Commission. In pursuit of the same
objective the Government challenged the legality of the
Commission's action. This suit therefore is a step in
proceedings to settle who is legally entitled to sums of
money, the Government or the railroads. The order if
valid would defeat the Government's claim to that mo-
ney. But the Government charged that the order was
issued arbitrarily and without substantial evidence.
This charge alone would be enough to present a justi-
ciable controversy. Consequently, the established prin-
ciple that a person cannot create a justiciable contro-
versy against himself has no application here.
He went on to dispose in just as summary a fashion of the argument that
no suit can be allowed in which the Justice Department would have the duty to
represent both sides:*/
f/For summaries of the briefs, see 93 L. Ed. 1453-55.
^J This is an argument that would be hard to make in any event where the
Clean Air Act was concerned. Section 305 does not require the Justice
Department to represent EPA, and indeed states explicitly that if the Justice
Department decides not to take an EPA case, the Administrator may choose
his own lawyers.
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[T]he Commission, and railroads emphasize the anomaly
of having the Attorney General appear on both sides of
the same controversy. However anomalous, this situa-
tion results from the statutes defining the Attorney
General's duties.
Although the formal appearance of the Attorney General
for the Government as statutory defendant does create
a surface anomaly, his representation of the Govern-
ment as a shipper does not in any way prevent a full
defense of the Commission's order. The Interstate
Commerce Act contains adequate provisions for protec-
tion of Commission orders by the Commission and by
the railroads when, as here, they are the real parties
in interest, for, whether the Attorney General defends
or not, the Commission and the railroads are author-
ized to interpose all defenses to the Government's
charges and claims of other shippers. In this case
the Commission and the railroads have availed them-
selves of this statutory authorization. They have vig-
orously defended the legality of the allowances and the
validity of the Commission order at every stage of the
litigation. 69 S. Ct. 1413-14.
Even though the government's real objective in this case was to recover
money from some private corporations, the ICC was still a true party in
interest. Once the ICC order denying the government's claim had been
rendered, the ICC had an institutional interest in defending its validity that
was completely separate from and no less real than the financial interest
of the railroads in defending it. See Jaffe, Judicial Control of Administrative
Action, pp. 537-38. Justice Black recognized this when he referred to
the ICC and the railroads as the "real parties in interest, " and the Supreme
Court has since ruled in intra-governmental suits where no financial recovery
for the government was sought. United States ex rel. Chapman v. Federal
Power Commission, 73 S. Ct. 609 (1953) (Secretary of Interior challenges
FPC's authority to approve a power project); Udall v. Federal Power Com-
mission. 87 S. Ct. 1712 (1967) (Secretary of Interior challenges FPC's au-
thority to approve a power project).
All these cases, however, have involved suits brought to review the rulings
of independent agencies*^/ made after formal APA adjudications. There are
almost no cases on other aspects of intra-governmental litigation -the only
ones I found were two from the Second Circuit stating that because a person
may not sue himself one government agency may not sue another for money
damages, Defense Supplies Corp. v. United States lAnes, supra; Luckenbach
Steamship Company v. U. S.. 315 U. S. 5y«, 604 (2d Cir. 1963) (Friendly, J.)
(dictum) and a District Court case from Tennessee holding for the same
reason that the TVA could not take an FHA mortgage interest in land by
eminent domain. United States v. An Easement and Right of Way etc.,
204 F. Supp. 837 (E.D. Term., 1962).
>£/Members of the Federal Power Commission may be removed by the
President in at least some cases before their terms expire, see p. 21,
infra, but the agency nevertheless is recognized as functionally independent.
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In my view little weight should be given to opinions which, like the three
just cited, rely without analysis on the simple slogan that a person may not
sue himself. >
According to page 1055 of the Harvard Law Review Note cited above:
While the rule that the same party cannot be both
plaintiff and defendant [i. e., that a person may not
sue himself] does have a substantive, as well as a
purely formal aspect, this substantive aspect is to-
tally unrelated to whether the parties are nominally
identical, as is shown by the leading federal cases
embodying its proper application .... The formal
aspect of the rule is universally recognized as a nar-
row and technical one traceable to the procedural
requirements of common-law pleading.
Justice Black in the ICC case declined to be bound by a rule so thinly justi-
fied and held that the slogan itself is not dispositive as long as a genuine
controversy is presented.
The substantive side of the rule is that the same interest may not be in effec-
tive control of both sides of a lawsuit. Ibid. The question viewed from
this angle then becomes whether the President is or should be in effective
control of both sides of an enforcement action brought by one agency against
another, points which are practically identical with points iii and iv of the
four listed on page above. To these two points we now turn.
The Supreme Court cases cited established that a petition by an Executive
agency subject to presidential control for review of an adjudicatory deter-
mination by an independent agency does present a case or controversy and does
not impermissibly undermine the authority of the President to manage the
government. The question is whether the same would be true of an enforce-
ment action by one executive agency (EPA) against another.
There is almost no authority on this point. But my conclusion is that such
a suit should be upheld.
If we look only to the two individual agencies that might be involved in such
litigation, and not to the powers superior to them in the government, it is
clear that such a suit might in every facatual sense have the elements of
concreteness and of an actual and substantial stake on each side that the
Supreme Court has held are necessary to the existence of a case or contro-
versy. Aetna Life Insurance Company v. Haworth, 37S.Ct. 461, 464(1037);
Flast v.~Cohen, 88S.Ct. 1942. 1950-42 (1968).
11,
It still may be, however, that such a suit would either not present a case
or controversy" because of the potential power of the President or resolve
it, or that judicial interference in such an intra-Executive matter would vio-
late the "political question" doctrine. The classic definition of that latter
phrase was given by the Supreme Court in Baker v. Carr, 82 S.Ct. 691, 710
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710 (1962), */ and reads as follows (with the points numbered for convenient
reference):
Prominent on the surface of any case held to involve
a political question is found (1) a textually demonstra-
ble constitutional commitment of the issue to a coor-
dinate political department; or (2) a lack of judicially
discoverable and manageable standards for resolving
it; or (3) the impossibility of deciding without an ini-
tial policy determination of a kind clearly for non-
judicial discretion; or (4) the impossibility of a court's
undertaking independent resolution without expressing
lack of the respect due coordinate branches of govern-
ment; or (5) an unusual need for unquestioning adher-
ence to a political decision already made; or (6) the
potentiality of embarrassment from multifarious pro-
nouncements by various departments on one question.
In our opinion it would be very hard to argue that points (2), (3), (5), or (6)
applied here. Since enforcement suits against Federal facilities will present
(as far as their merits are concerned) almost the same questions as suits
against private facilities, plainly there is no "lack of judicially discoverable
and manageable standards for resolving" them, and it would be possible to
decide their merits "without an initial policy determination of a kind clearly
for nonjudicial discretion. " Since such suits by EPA would only be brought
with the concurrence of the Executive, and would be meant to settle the com-
pliance status of individual facilitites once and for all, there would be neither
a "potentiality of embarrassment from multifarious pronouncements" nor an
unusual need for unquestioning adherence to a political decision already
made. "
Nor, in our opinion, would a court express "lack of the respect due coordi-
nate branches of government" by deciding such a case. In the first place,
such a suit by EPA could as noted above only be brought with Executive
concurrence. In the second, it would involve only narrow issues of individual
facilities' compliance with standards specified in detail by the states and
Congress.
Finally, there is the question whether the issue has been committed by the
text of the Constitution to Executive decision.
In the context of a suit by EPA, this is essentially the same question that
the inquiry into the existence of a "case or controversy" boils down to -
whether to allow such a suit would injure the unity of the executive branch
or invade the power of the President to manage it. Professor Jaffe argues
that it might:
*7For other cases discussing the "political question" doctrine, see Powell
v. McCormack, 89 S. Ct. 1944 (1969); William v. Rhodes, 89 S. Ci. 5
~~
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The day-today thrashing out of problems in the cock-
pit of action brings desire and understanding into
highly charged proximity.. .. And as has been pointed
out by very distinguished political and legal philosop-
hers, the lofty intrusion of the judiciary may chill
creative responsibility. 'Not to make decisions that
others should make, ' says Chester Bernard in a much-
quoted passage, 'is to preserve morale, to develop
competence, to fix responsibility, and to preserve
authority. ' L. Jaffe, Judicial Control of Adminis-
trative Action 320-321, (1965) (Jaffe's emphasis). "
Jaffe was here speaking of judicial review of official action in general, but
these were probably the considerations he had in mind in writing elsewhere
without elaboration:
If one were to assume a case where both officers were
subject to the President's authority, his authority and
his responsibility for its proper exercise would seem
to be the logical forum for the resolution of the conflict.
Id. at 541.*/
However, the danger of such a "chilling effect" in our particular case is
minimized by the language of the statute. The Clean Air Act does not re-
quire the Administrator to sue those who violate emissions standards] Sec-
tion 113 merely says that he "may" sue them. Accordingly, the President
has power to protect his authority to manage the government by directing
the Administrator not to file a suit in any given case. Where such a suit
is filed, it must therefore be presumed to be filed with the President's
express or tacit approval and in conformity with his view of his functions.
If the court then refused to resolve the dispute - which might well in every
concrete factual sense be a "case or controversy" - the only reason that
I think it could give would be that by not acting himself the President was
not doing his job of running the Executive Branch as a unitary whole, and
that the courts would not do it for him.
In our view, however, there are good reasons why a President might want
EPA to bring suits against other Federal agencies under the Clean Air Act.
The Clean Air Act requires federal facilities to comply with emissions limit-
ations to the same extent as other sources, unless they have been granted
a Presidential exemption. The law is clear, and any area of discretion for
executive policy-making with respect to it is further narrowed by the pro-
vision in Section 118 that no agency may be exempted from compliance due
to a lack of funds unless it has explicitly asked for those funds and been turned
down by Congress. The President's function in such circumstances is to see
that federal facilities obey the law.
*/ Of course, to say it is the "logical forum" is not necessarily to mean
that it is the only proper forum.
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which mitigate centralizing authority. The public interest
no longer can be limited to one mask worn by the Attorney
General. The United States may incestuously sue itself.
[citingUnited States v. ICC, supra] It may, in the carnival
of the public interest, appear in many guises in which if
one looks he may see -- without too much effort -- twitch-
ing behind the august lineaments of the ICC, the Department
of Agriculture, and the Secretary of the Interior, the eager
grimaces of railroad, farmer, and rural electrifier. All
of these interests are represented in this mode on the Con-
gressional and administrative stage; it has come to be
thought appropriate that they be so represented in the courts
of law when a legal issue is relevant to the exercise of
power. Jaffe, ibid pp. 541-42.
c. The Special Status of TVA
The more independent of Presidential control an agency is under the law,
the less of an invasion of executive unity or Presidential prerogatives (would
be caused by an EPA suit against it and, accordingly, the easier it would be
to establish EPA's right to sue it.
The agencies in the Executive Branch least subject to Presidential control are
the independent regulatory agencies, such as the ICC and the FTC, whose
members may not be removed by the President during their term of office.
Humphrey's Executor v. United States. 55 S. Ct. 869(1940). As noted above,
the right of other Federal agencies to challenge in court the decisions of
these agencies is well established.
TVA does not fall into this category, both because its governing statute gives
the President specific detailed responsibilities relating to TVA management,
16 U. S. C. §§831(c)(k)(c), 831(e), 831H, 831o, 831u, 831v, and because the di-
rectors may be removed by the President before the expiration of their terms
and for reasons not explicitly stated in the statute. Morgan v. Tennessee
Authority, 115 F. 2d 990 (8th Cir. 1940).
On the other hand, the structure of the Tennessee Valley Authority Act of
1933, and the circumstances of TVA's establishment, indicate that TVA was
to retain a considerable degree of independence.
TVA is not the normal type of federal agency. It is a Federally chartered
corporation, 16 U.S.C. §831, run by three directors appointed by the Presi-
dent with the advice and consent of the Senate, 16 U.S.C. §831a. The di-
rectors serve nine-year terms with one term expiring every third year, and
the statute specifies that "[t]he board shall direct the exercise of all the powers
of the corporation", 16 U. S. C. §831a, "includingthe power to hire all necess-
ary subordinate employees without regard to civil service rules. 16 U.S.C.
§83Ib. However, 'no political considerations may enter into the selection or
promotion of any employee. " U. S. C. §831e. One of TVA's corporate powers
is to hire attorneys of its choice, 16 U.S.C. §831b, and these attorneys,
rather than the Justice Department, have in fact appeared for TVA in the
various lawsuits filed against it by environmentalists. See, e.g., the counsel
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of record listed in .Environmental Defense Fund v. TV A. 5 ERG 1183 (E.D.
Term. 1973); Environmental Defense Fund v. TVA, 4~~ERC 1150 (6th Cir.
1972); Morris v. TVA, 4 ERG 1948 (N. D. Ala. 1972). Nor is TVA subject
to the restrictions of the annual budget procedure to the same extent as other
government agencies. Though it must submit an annual "business-type budget"
to OMB, 31 U.S.C. §847, which the President can alter, 31U.S.C. §848,
31 U.S.C. §§849 and 850 reduce the importance of these procedures consider-
ably by reconfirming the prior authority of TVA to deduct its operating expen-
ses from its revenues before turning the balance over to the Treasury. See 16
U.S.C. §§831h(b) and 831y.
The House and Senate Reports on the Tennessee Valley Authority Act of 1933
are brief and unenlightening, see H. R. Rep. No. 48 (73d Cong. 1st Sess. ),
S. Rep. No. 23 (73rd Cong., 1st Sess.), and President Roosevelt took an
active interest in the launching and early years of the Authority, Pritchett,
The Tennessee Valley Authority; A Study in Public Administration (1943) pp.
185-221. Nevertheless, it was the conclusion of at least one commentator
that
There can be no doubt that Congress did intend in creating
the TVA, to depart widely from the ordinary bureau pat-
tern and to establish an agency with a considerable measure
of independence from presidential control. Ibid, p. 218.
See also Lilienthal, TVA; Democracy on theTMarch (1944)
pp. 176-77.
It is not necessary to an inter-agency lawsuit that one of the agencies be
headed by members who do not serve at the pleasure of the President. Mem-
bers of the FPC are not protected by Humphrey's Executor, see I Davis,
Administrative Law Treatise, §1.07, and yet a suit by the Interior Depart-
ment against the FPC was sustained in U. S. ex rel Chapman v. FPC. supra.
In fact, the better view appears to be that there is no touchstone for deter-
mining when an agency is to be "independent", but that the answer should
turn on an examination of the particular nature both of the agency and the
function at issue in the lawsuit. Jaffe, Judicial Control of Administrative
Action p. 541. If such an approach is adopted, the arguments set forth above
on Congress' view of TVA's independence could be combined with the lack
of latitude for policy-making under the Clean Air Act in determining to what
extent TVA should comply with implementation plan requirements to make a
strong case for classifying TVA with the "independent ' agencies where an
enforcement action against it by EPA is concerned.
2. The Requirement of an "Opportunity to Consult" Under §113.
Section 113(a)(4) of the Clean Air Act states that an order under §113 "shall
not take effect until the person to whom it was issued has had an opportunity
to confer with the Administrator concerning the alleged violation". In a draft
memorandum dated August 16, 1972, from Gerald Gleason to Edward Reich,
this office has stated that the "opportunity to confer" required by the sen-
tence quoted above does not require a public hearing of any nature, but simply
requires that the person concerned have an opportunity to meet with a re-
sponsible EPA representative and present facts and argument to him. Ac-
cordingly, the general "legislative" type hearing you propose would more
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than satisfy the applicable legal requirements as long as sources which had
received an order were notprevented from submitted facts and arguments con-
cerning their own individual problems.
Of course, there is no legal objection to doing more here than the law requires.
See United States v. Florida East Coast Railroad, 98 S. Ct. 810, 816 n. 6.
However, the notice of the hearing should make clear our view that we are
in fact doing more than the law requires to minimize the danger of setting
a precedent for future §113 hearings.
3. May Individuals be Compelled to Appear in Person at the Proposed Hear-
ing and Testify Under Oath?
Section 114 of the Clean Air Act provides that "the Administrator may require
the owner or operator of any emission source to ... establish and main-
tain such records, . . . make such reports, . . . and . . . provide such
other information, as he may reasonably require" as long as it is done "for
the purpose [inter alia] of developing or assisting in the development of any
implementation plan under Section 110 . .. or ... of determining whether
any person is in violation of any . . . requirements of such a plan".
Compliance with this provision can be enforced by "appropriate relief, includ-
ing a temporary or permanent injunction" under authority of §113(b).
The law is clear that EPA may require the "reports" mentioned in the statute
to be filed whenever it pleases, and to discuss specific questions in detail
even where they are the subject of pending or threatened judicial proceedings.
In United States v. Morton Salt Co., 70 S. Ct. 357 (1950) (Jackson, J. ), the
Supreme Court upheld the power of the Federal Trade Commission acting
under a similar statute to require extremely detailed reports from companies
subject to a court order for the purpose of determining whether they were
still in compliance with it. The Court said that to characterize the require-
ment of these reports as a "fishing objection" was no valid objection to it,
since administrative agencies have the right to go on such expeditions, and
that it was "sufficient if the inquiry is within the authority of the agency,
the demand is not too indefinite, and the information sought is reasonably re-
levant. " 70 S. Ct. 369.
There can therefore be little doubt that the companies which will be asked
to the hearing could be required to file reports containing essentially the same
information EPA hopes to get from them by oral examination of their employees.
The question is whether the appearance of their employees to submit to oral
examination may also be compelled.
The legislative history of the 1970 Admendments, which added the passages
quoted above to the Clean Air Act, casts no light on this question. However,
I have not found any case in which the personal appearance of a witness was
compelled by an administrative agency except through the issuance of a sub-
poena. Congress has been very liberal in granting such a subpoena power
To administrative agencies. See 49 U.S.C. §12 (ICC); 15 U.S. C. §49 (FTC);
15 U. S. C. §§77s(b), 77uuu(a), 78 (u)(b), 79r(c), 80a-41(b) and 80b-9(b) (SEC);
15 U.S.C. §717m(c), 16 U.S.C. §825f(b) (FTC); 47 U.S.C. §409(e) (FCC);
42 U.S.C. §2201(c) (AEC); 41 U.S.C. §39 (NLRB); 46 U.S.C. §§821, 826
(Federal Maritime Commission).
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In addition the power to subpoena witnesses for purposes not relevant here
has been explicitly granted to EPA by §307 of the Clean Air Act.
Finally, §113(c), which provides for punishing those who make false state-
ments to EPA, only forbids such statements if they are made "in any applica-
tion, record, report, plan or other document filed or required to be main-
tained under this Act . (emphasis supplied) This provision is obviously
meant to be read in parallel with §114, and the fact that the underlined words
indicate that only the furnishing of false information in written form was meant
to be punished therefore also indicates that only the furnishing of written infor-
mation may be compelled under §114.
Though the arguments for such a reading are strong, they are not decisive.
Administrative agencies have considerable discretion to interpret their own
statutes, Udall v. Tallman. 380 U.S. 12, 16(1965), and it is a rule of statu-
tory construction that courts "may not 'in the absence of compelling evidence
that such was Congress1 intention. . .prohibit administrative action impera-
tive for the achievement of an agency's ultimate purpose. '" U. S. v. South-
western Cable Co., 88 S. Ct. 1994, 2005 (1968). See also "Weinberger v.
Bentex Pharmaceuticals. Inc.. 93 S. Ct. 2488, 2494 (1973). This policy
could be invoked here, as the policy reasons supporting a requirement that
certain persons attend the proposed hearing are plainly very strong.
There is no "compelling evidence" of Congress' intent to prevent such ap-
pearances. The legislative history, as noted above, is silent. Section 114,
in stating that "reports" may be required, does not specify that they must
be written or that they may not consist of transcripts of oral examinations.
Even if this reading is rejected, the argument can be made that when §114
has allowed EPA to require "records" and "reports" it has exhausted the
possible categories of written material, and that the power to compel the
furnishing of "other information" must mean information given orally.
Similarly, the provision for judicial enforcement does not rule out judicial
compulsion of personal appearances, since it is written in the most general
and comprehensive terms to allow the courts to enforce compliance with the
requirements of §114 by granting "appropriate relief, including [but, by im-
plication, not limited to] a permanent or temporary injunction. . ." §113(b).
Even the false statement prohibition in §113(c) could be made to conform to
this reading. By its terms it requires the false statement to be made in a
"document" "filed" with EPA. The verbatim transcript of testimony that will
be taken may legitimately be regarded as such a document, particularly if
the witness were given a chance to correct any misstatements he might have
made under the pressure of cross-examination. Such a reading of the sec-
tion would make sense as an interpretation of Congressional intent, since it
would imply that Congress did not intend to deny EPA the power to hear live
witnesses, but only meant to require a record of their testimony to be made-
and (perhaps) verified with them before any prosecution for false statements
could be brought.
Unfortunately, by the terms of §114 information can only be required from the
owners or operators of emissions sources. The statute is clear, and an
administrative agency has no power apart from statute to compel people to
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supply it with information. Accordingly, vendors of emissions control equip-
ment will have to appear voluntarily at the proposed hearing if they are to
appear at all.
You have asked whether oaths could be administered in the proposed hearing.
Though I have not researched the point very much, I doubt an oath may be
administered unless there is express authority to administer it. However,
the same purpose could be served by reminding each witness as he took the
stand that the transcript of his remarks after he had had an opportunity to
review it would be regarded as furnished subject to the penalties of §113(c).
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SECTION 114 OF THE CLEAN AIR ACT -- INSPECTIONS,
MONITORING AND ENTRY
TITLE: Requirements Under Section 114
DATE: December 21, 1972
MEMORANDUM OF LAW
FACTS
In connection with the gathering of information for the development of new
source performance standards for the diammonia phosphorus process, OAP
has recently approached the Atlantic Richfield Company plant in Fort Madison,
Iowa, regarding emission sampling there, having determined that the plant
represents "best demonstrated technology "for the control of floride emissions.
In order to sample emissions from this source in accordance with test methods
prescribed in 40 CFR Part 60, new sampling ports must be placed in the rub-
berlined steel stack and a scaffold must be erected to reach these ports. The
company has objected to the installation of temporary scaffolding which EPA
has selected, on the basis that a permanent platform will be necessary in order
that the ports may be checked for corrosion on a regular basis. The cost of
temporary scaffolding has been estimated at from $5, 000 to $7, 000 and the
cost of a permanent platform at $14, 000.
We have discussed by telephone the possible use of §114 of the Clean Air Act
to require the company to install such facilities as are necessary to enable
EPA to sample emissions from the source in a manner acceptable to EPA.
QUESTION #1
Does §114 of the Clean Air Act provide the Agency authority to require a source
to make available to EPA adequate means of access to obtain emission samples
from such source, in connection with the development of new source per-
formance standards?
ANSWER #1
Section 114 provides the Agency broad authority, for the purpose of developing
a new source performance standard, to require source owners or operators to
sample emissions as prescribed by the Agency and to sample any emissions
which the source owner or operator could be required to sample. We con-
clude that included within those authorizations is the power to require the
owner or operator to provide reasonable access to the appropriate sampling
point in order that the Agency may sample emissions.
DISCUSSION
1. The pertinent language of §114 is as follows:
(a) For the purpose of developing... any standard of performance under
section 111...
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(1) The Administrator may require the owner or operator of any emis-
sion source to... (C) install, use, and maintain such monitoring equip-
ment 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).. ., as he may reasonably require;
and
(2) the Administrator or his authorized representative, upon presen-
tation of his credentials--...
(B) may at reasonable times... sample any emissions which the
owner or operator of such source is required to sample under para-
graph (1).
2. As we discussed by telephone, since EPA is expressly authorized to re-
quire the source owner to sample emissions in accordance with methods, at
locations, at intervals and in the manner which the Administrator dictates, the
authority to require the source to provide access to the proper sampling
points is implicitly included. Accordingly, if special means of access to the
sampling points is required in order for EPA to make the samples, EPA may
require the source to construct such means of access at the source's expense.
3. EPA may require no more of the source than is reasonably necessary to
obtain access for the period of time necessary for sampling, and if temporary
scaffolding will suffice, EPA may not require permanent platforms. If the
source insists that permanent platforms are necessary although EPA pre-
scribes temporary, the additional requirement is self-imposed.
4. With respect to your question regarding the propriety of EPA assuring in
the costs of permanent platforms by funding that construction cost in the
amount of the cost of temporary scaffolding, we see no legal impediment.
However, if you should desire our Grants and Procurement Division to con-
sider that question, we will be happy to refer it to them for a formal opinion.
§§§§§§§
TITLE: Fifth Amendment Limitations on use of §114
DATE: August 7, 1972
MEMORANDUM OF LAW
QUESTION
To what extent is the Administrator's information-gathering role under §114
of the Clean Air Act limited by the Fifth Amendment privilege against self-
incrimination ?
ANSWER
A natural person, an unincorporated sole proprietorship, and possibly a part-
nership of limited size may claim the privilege against self-incrimination
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in response to a §114 request for oral or written answers, and for the pro-
duction of private documentary materials which are not required to be kept
by government regulation. In general, however, no warning need be given
concerning one's privilege against self-incrimination, as long as there is no
custodial interrogation.
OUTLINE OF DISCUSSION
1. To whom is the privilege available?
a. Corporations
(1) In general
(2) Solely-owned, closely-held corporations
b. Associations
(1) Labor unions
(2) Other associations
(3) Partnerships
c. Individuals
2. What material may be protected under the privilege ?
a. Documentary material
(1) In general
(2) The records of others (Corporate or organizational records)
(3) Required records
(a) In general
(b) Required by EPA laws or regulations
(c) Required by other laws or regulations
b. Oral material, including interrogatories
3. Can the privilege be taken away by grant of immunity?
4. Must a warning be given as to one's rights to claim the privilege?
DISUCSSION
1. To whom is the privilege available ?
a. Corporations.
(1) In general.
(a) The privilege against self-incrimination is not available to
a corporation. A corporation "cannot resist production upon the
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ground of self-incrimination !_/. " Furthermore, corporate documents
must be produced even if they "may incriminate the custodian possessing
them 2/.
(b) If interrogatories are directed to the corporation, an officer
may have the right to invoke his own personal privilege, but then cannot
shield the corporation. If the corporation has someone who can answer
the interrogatories without incriminating himself, it must produce him.
"[T]he corporation could not statisfy its obligation simply by pointing
to an agent about to invoke his constitutional privilege 3_/.
(2) Solely-owned, closely held corporations.
(a) If no one could answer interrogatories addressed to a cor-
poration without subjecting himself to a "real and appreciable" risk of
self-incrimination, it would be a "troublesome question, " according to
the Supreme Court's dictum in United States v. Kordel 4/. Such could
well be the case with a closely-held corporation.
(b) On the other hand, the documents of even a closely-held cor-
poration are not subject to the privilege, even though the only person
available to produce them is incriminated by their contents. "In recent
years numerous challenges on Fifth Amendment grounds have been raised
with respect to the records of solely owned and closely held corporations.
The courts have uniformly rejected the privilege claims 5/.
II Wilson v. United States, 221 U. S. 361, 382, (1911).
2j See text at note 16, infra, under paragraph 2a(2) of this memo.
3_/ United States v. Kordel, 397 U.S. 1, 8 (1970).
4/ Id. at 9.
5/ Lipton, Constitutional Issues in Tax Fraud Cases. 55 A. B.A. J. 731
U969), citing United States v. Crespo, 381 F. Supp. 928 (D. Md. 1969)
and cases cited therein, which include the Second, Third, Eighth, and Ninth
Circuits (emphasis added). There have been no contrary holding as to records
since Crespo. The rejection of the privilege claims is based on denial of
the privilege to corporations, text at note 2, supra. One commentator has
argued, "it seems unreasonably to deny a constitutional right because the
individual claimant has chosen to do business under the corporate form. "
Note, Required Information and the Privilege Against Self-incrimination, 65
Colum L. Rev- 681, 686 (1965). the denial of the privilege to one-man cor-
porations is also criticized in Note, 78 Harv. L. Rev. 455 (1964). The
Court has drawn a sharp distinction between oral testimony, (including an-
swers to interrogatories addressed to the corporation), and corporation docu-
ments. A corporation is incapable of speaking or writing, but it can own
documents. In the Kordel case, supra note 3, the Court cites with continuing
approval Curcio y. United Stateit 3"54 U.S. 118 (1957), which draws the
distinction^ See discussion in paragraph 2b of this Memo, at note 24, infra.
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b. Associations.
(1) Labor unions. The privilege was denied to a labor union in
United States v. White 67. the Supreme Court based the power to compel
the production of documents not upon the existence of a state charter of in-
corporation, but on the inherent power of the Government to enforce the laws,
limited only by the necessity to protect personal rights. The privilege cannot
be invoked on behalf of an organization which "has a character so impersonal
in the scope of its membership and activities that it cannot be said to embody
or represent the purely private or personal interests of its constituents, but
rather to embody their common or group intrest only 7/. "
(2) Other associations. Subsequent decisions have denied the privil-
ege to such unincorporated associations as the Civil Rights Congress, 8/
the Communist Part, 9_/ and the Joint Anti-Fascist Refugee Committee IQj.
(3) Par tn ership s. there have been conflicting decisions as to whether
the privilege should be denied to business partnerships 11/. the distinctions
are sometimes made on the basis of size, although otEer factors (such as
being alimited, rather than a general, partnership) are also sometimes con-
sidered 12/. Under the White test, 13/ size and activities alone would seem
to be the considerations.
c. Individuals. Individuals, natural persons do have the right to claim
the privilege. This would seem to cover unincorporated sole proprietorships,
although arguably the White test could bring even some of these under the
exception to the privilege.
6T/ 322 U.S. 694 (1914).
TJ Id. at 701.
8/ McPhaul v. United States, 364 U. S. 372, 380(1960).
9_/ Rogers v. United States, 340 U. S. 367, 372 (1951).
10_/ United States v. Fleischman, 339 U.S. 349, 358(1950).
111 These are discussed in Note, Privilege Against Self-Incrimination Held
Not Available to a General Partner Holding Records of a Large Limited Part-
nership, 63 Colum. L. Rev. 1319,""1321 (1963).
12/ See, e.g., United States v. Silverstein, 314 F. 2d 789 (2d cir. 1963),
wEere the privilege was held not available to a general partner (one of three)
holding the records of each of five large, limited partnerships consisting of
from 25 to 147 partners. Analogy to the corporate form was also important
in this case: "the choice of this form of business organization was necessarily
an election to submit a greater degree of governmental intervention than would
be true of a simple common-law partnership, and to more closely approxi-
mate the corporate form. " Id_. at 791.
Ij3/ See text at note 7, supra.
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In any case, there are other large exceptions even for individual, natural
persons as to what materials may be protected. These are discussed below
under paragraph 2a of this memo, concerning documentary material.
2. What material may be protected under the privilege ?
a. Documentary material.
(1) In general. The Court in Boyd v. United States, 14/ said, by
way of dictum!that private papers are protected by the Fifth "Amendment
privilege. That dictum has been followed consistently and was reinterated
in Gilbert v. California, 15/ although exceptions have been made, including
those which follow.
(2) The records of others (corporate or organizational records). In
general, possession without ownership is not sufficient to support a claim to
the privilege even when the documents may incriminate the possessor. This
is definitely true if the owner is a corporation or other impersonal organiza-
tion. Officers may be in possession of records owned by another - namely,
by the corporation.
"Officers of corporations and other non-privilege groups
cannot prevent use of their organization's records against
them by asserting the privilege against self-incrimination.
The officers are simply custodians of the records, and must
produce and identify them, even if they contain information
which is personally incriminatory 16 /. "
(3) Required records.
(a) In general, another restriction on the use of the Fifth Amend-
ment was recognized by the Court in Shapiro v. United States. The case in-
volved procurement of information required by the Governmejit^s price con-
trol program. The Court said that "the privilege which exists as to private
papers cannot be maintained in relation to 'records required by law to be
kept in order that there may be suitable information of transactions which
14/ 116 U.S. 616 (1886).
1_5/ 384 U.S. 757 (1965).
Note, 65 Colum. L. Rev. 681, 685(1965), supra note 5. summarizing
the holdings of United States v. White, supra note 6, and Wilson v.
United States, 332 U.S. 361 (1911). The Ninth Circut has held that posses-
sion alone is sufficient to support a claim to the privilege when the owner
is a natural person. The taxpaper claimed the privilege as to his account-
ant's papers in his possession. United States v. Cohen, 388 F. 2d 464
(9th Cir. 1967). The Third Circuit has characterized the Cohen case
as "against the weight of authority" in other circuits, giving citations.
United States v. Widelski. 452 F. 2d 1, 5 (3rd Cir. 1971).
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are the appropriate subjects of governmental regulation, and the enforcement
of restrictions validly established.1" 17/ Such documents have "public as-
pects" are are not protected. At least one commentator says the rational
here was also a "custodial" theory i. e., the papers were held in custody by
the government 18/.
(b) Required by EPA laws or regulations.
Section 114(a)(l)(A) and (B) gives the Administrator power to require
recordkeeping and reporting. 19 /
On the other hand, the broad language of §114(a)(l(E) ("other informa-
tion") probably cannot give any greater right to information under the
Shapiro doctrine. It would seem that the law or regulations would have
to spell out in advance what information must be kept or recorded. 20/
177 335 U. S. 1 (1948). Recently the supreme court has recognized limita-
tions on the required records doctrine. Requirements for registration as
Communists, Albertspn v. Subversive Activities Control Board. 382 U.S.
70 (1965), gamblers, Marchetti v. United States, 390 U.S. 39 (1968), Grosso
v. United States. 390 U. S. 62 (1968), and holders of firearms, Haynes v.
United State s. 390 U.S. 85 (1968), have been held to violate the privilege
against self-incrimination. On the other hand, in California v. Byers, a
plurality of the Court decided that requirements for disclosure of names and
addresses of drivers involved in automobile accidents "simply do not entail
the kind of substantial risk of self-incrimination involved in Marchetti,
Grosso, and Haynes. " 402 U.S. 424, 431 (1971). Since the statute applied
to the public at large and most accidents do not result in criminal prosecu-
tions, dirvers cannot be considered either a select group, or one highly
suspect of criminal activity. Id_.
18/ Note, 65 Colum. L. Rev. 681, 685 (1965), supra Note 5.
19/ The Court is aware of such requirements in the field of pollution control.
In California v. Byers, 402 U.S. 424; 431(1971), the so-called California
Hit and Run Case, the Supreme Court mentioned the "many burdens" imposed
on the constituents of an organized society, including the fact that "industries
must report periodically the volume and content of pollutants discharged into
our waters and atmosphere, "with a reference to other examples in the Shapiro
decision (see text, supra, at note 17). "In each of these situations there is
some possibility of prosecution -- often a very real one -- for criminal
offense disclosed by or deriving from the information which the law com-
pels a person to supply.... But under our holdings the mere possibility of
incrimation is insufficient to defeat the strong policies in favor, of. ..dis-
closure. ..." Id.
20_/ The question of what is necessary to make an otherwise private record
into a "required" one has not been researched for this Memo. But for the
government to "require" a record to be maintained would appear to involve a
prior command on the part of the government. It should be emphasized that
this required record doctrine is only needed when documents cannot be ob-
tained under other theories -- such as corporate documents. In those other
situations, §114(a)(l)(E) is definitely of value.
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(c) Required by other laws or regulations.
In UnitecTSTates v. Sullivan, 21 / a bootlegger was prosecuted for failure
to file an income tax return and the Court held that he had no privilege
even though he claimed that filing a return would have tended to incrimi-
nate him by revealing the unlawful source of his income. 221
It would seem, then, that EPA can obtain information required by other
regulations than its own. Such information could be included within the
category of "other information" under §114(a)(l)(E). 23/
b. Oral material, including interrogatories. Although a custodian of
another's books may be required to produce the documents, the Supreme
Court held in Curcio v. United States, 24/ that he may not be required to ex-
plain the records he has produced, or reveal the whereabouts of records which
he does not possess. That would lead to convicting him "out of his own
mouth. "
More recently, in United States v. Kordel, 25/ the Court said that an officer
of a corporation may himself refuse to answer interrogatories which would
incriminate him personally, at least where others could answer them, citing
the Curcio decision.
2T/ 274 U. S.
2.2/ Contra, Garner v. United States, 41 LW 2004 (June 5, 1972), where the
Ninth Circuit held that to use a gambler's income tax return to convict him
in a criminal prosecution unrelated to the tax laws violated his privilege.
The court questioned the viability of the Sullivan doctrine today, in light of
subsequent cases. But the Supreme Court in California v. Byers. 402 U.S.
424 (1971), mentioned the Sullivan case with continued approval. So the
Ninth Circuit would seem to be out of step with the present Supreme Court.
23J It is possible that EPA can obtain information required to be kept by even
a different jurisdiction than the Federal Government -- that is, by state laws
or regulations. Although the cases reviewed have dealt with Federal infor-
mation-gathering under Federal recordkeeping requirements or, in the Byers
ease, State information-gathering under State recordkeeping requirements,
there is no apparent reason that the Shapiro doctrine would not extend to
Federal information-gathering under State recordkeeping requirements.
24/ 354 U.S. 118 (1957).
sra note 3.
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3T Can the privilege be taken away by grant of immunity ?
A witness who has been granted immunity against prosecution cannot refuse to
testify. 26/ The immunity must cover both State and Federal prosecution. 27 /
Federafwitness immunity acts are widespread. 28 / It has not been deteF-
mined whether there is one applicable to EPA information-gathering under
§114.
4. Must a warning be given as to one's rights to claim the privilege?
The principle which has been established in tax investigations is summarized
in the statement: "Basically, the courts hold that the Miranda warnings need
only be given to individuals who are in custody. "29/ If an EPA investigator
were to confront a suspected polluter personally with a request for informa-
tion, it would seem analogous to the investigation of civil and criminal tax
issues, as well as other areas of investigation. 30/
2jB/ Ullman v. United States, 350 U.S. 422 (1956).
27_/ Murphy v. Waterfront Commission, 378 U.S. 52,77-78(1964).
28/ See Note, The Federal Witness Immunity Acts in Theory and Practice;
Treacling the C6ns"titutional Tightrope. 72 Yale L. J. 1568 (1963).
29/ Lipton, supra note 5, at 733. See United States v. Stribling, 437 F.
2cT765(6 Cir. 1971), and cases citecTTnerein relating to tax investigation.
Only the Seventh Circuit recognizes a right to a warning. However, the In-
ternal Revenue Service has its own regulations requiring that warnings be
given, and the Fourth Circuit has held that failure to follow the regulations
invalidated a prosecution. United States v. Heffner, 420 F. 2d 809 (4th Cir.
1969).
30/ This question has not been exhaustively researched for this Memo, but
ffiere is much useful information in Note, 46 Ind. L.J. 361 (1971), as to tax
cases.
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TITLE: Delegation of Authority to Make Emission Data Public
DATE: February 11, 1972
FACTS
40 CFR 51.11(a)(6) requires a State to have legal authority to make emis-
sion data from stationary source available to the public as part of its imple-
mentation plan required under section 110 of the Clean Air Act, as amended.
At least one State has made a formal request to a Regional Administrator that
this authority be delegated to the State pursuant to section 114(b)(l).
DISCUSSION
How is the authority to make emission data available to the public delegated
to a State under section 114?
ANSWER
EPA must delegate all of the authority contained in section 114(a)(l) and 114
(a)(2) to the State. The data obtained by the State pursuant to this delegated
authority will then be available to the public as provided in section 114(c).
DISCUSSION
1. Section 114(b)(l) states that:
Each State may develop and submit to the Administrator a procedure for
carrying out this section in such State. If the Administrator finds the
State procedure is adequate, he may delegate to such State any authority
he has to carry out this section (except with respect to new sources owned
or operated by the United States).
Section 114(c) provides that:
Any records, reports or information obtained under subsection (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 Adminis-
trator 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 par-
ticular portion thereof confidential in accordance with the purposes of sec-
tion 1905 of title 18 of the United States Code, except that such record,
report, or information may be disclosed to other officers, employees, or
authorized representatives of the United States concerned with carrying
out this Actor when relevant in any proceeding under this Act. (emphasis
added)
2. Because the provisions of section 114(c) making emission data available
to the public apply to records, reports or information obtained under section
114(a)and not to information obtained under State law, it is not possible merely
to make a delegation to the State of the authority to make the emission data
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available to the public. To satisfy the request of the State, the Administrator
must delegate, pursuant to section 114(b)(l), the authority provided him in
section 114(a)(l) and (2) to obtain emission data. We presume that the State
would at least need authority to require installation, use and maintenance of
monitoring devices, to require sampling of emissions, to enter for inspection
and sampling purposes and to obtain such other information regarding emis-
sions as the State may reasonably require. To the extent the State feels other
section 114 authority would be needed to obtain emission data, we should dele-
gate that to it. The information gathered by the State pursuant to this dele-
gated Federal authority will then be available to the public as provided in
section 114(c).
3. While the State probably has not requested delegation of this other autho-
rity, this is the only appropriate means of satisfying their request. First,
section 114(c) only applies to information obtained under section 114(a).
Second, a simple delegation of authority to make emission data public would
conflict with State law which presumably requires that such data be held con-
fidential.
We do not believe it possible to supersede a State confidentiality provision
with Federal law as applied to data acquired pursuant to State information-
gathering authority.
4. When delegating this authority, EPA must be sure that the State under-
stands its emission data gathering activities will be proceeding under Federal
law. And to prevent any later misunderstandings, the State should advise
sources of the nature of its authority. If this office can assist in the dele-
gation or in advising the States of the scope of the delegation, please contact
us.
§§§§§§§
TITLE: Monitoring of Ambient Air
DATE: November 13, 1972
Reference: Memorandum from Theodore R. Rogowski, Region X, to
Alan Kirk, II, "Application of Provisions Contained in
Section 114(a) . . . .," November 1, 1972
MEMORANDUM OF LAW
FACTS
The Air Programs Branch, Region X, would like to monitor ambient air
quality for SO, concentrations near the Bunker Hill Company, in order to
develop an implementation plan control strategy for meeting the SO 2 secondary
standards. Questions have been raised regarding their authorit/to require
the Company to do the monitoring or to enter the property and conduct the
monitoring or measurement themselves.
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QUESTION # 1
Can the Administrator require the owner or operator of an emission source
to measure ambient air quality in the vicinity of the source?
ANSWER #1
There is legal support for the position that this authority exists under section
114(a)(l) of the Clean Air Act.
DISCUSSION
1. For specified purposes, including the development of an implementation
plan --
the Administrator may require the owner or operator of any emission
source to ... (C) install, use, and maintain such monitoring equip-
ment 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 in-
formation, as he may reasonably require ....
2. Each of the subsections of §114(a)(l) can be read separately as giving the
Administrator broad authority which could include requiring measurement of
ambient air quality by the owner or operator. In no case is there any express
limitation on the Administrator's authority other than reasonableness and the
purposes of section 114. Pursuant to subsection (C), the lack of restriction on
the kind of monitoring equipment and the explicit authority to require the
owner or operator to "use" itappears broad enough to require that ambient air
quality monitoring be done under this subsection. In subsection (D) it is speci-
fically stated that emission sampling shall be done "in accordance with such
methods . . . and in such manner as the Administrator shall prescribe," There
is nothing in the legislative history to indicate that Congress intended to
restrict the Administrator's information -gather ing powers to requiring the
sampling of emissions only in the stacks of sources. An emission may logi-
cally be "sampled" after it has become mixed with the ambient air, by means
of ambient air quality monitoring. The development of an implementation
plan, including decisions on the need for various controls, may require an
analysis of the impact of emissions on the ambient air in various locations.
In subsection (E) the Administrator is given broad power to require the
source to provide "such other information" as he may need, which could in-
clude data on ambient air concentrations of pollutants emitted by the source.
3. Requiring the source owner or operator to measure ambient air quality
levels appears to be particularly justifiable where those levels are attribut-
able to emissions which are exclusively or predomlnantely his own. This
is the situation in a Priority LA Region, such as at Bunker Hill, where the
classification as Priority I (a region having the most serious air pollution
problems) is based on air quality levels "reflecting emissions predominantely
from a single point source," 40 CFR §51. 3(c), and that source is the one
being asked to do the monitoring.
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QUESTION #2
Does the Administrator have the authority to sample ambient air quality on
the premises of the source, or only to sample stack emissions ?
ANSWER #2
There is legal support for the position that the Administrator has the authority
under either §114(a)(2)(A) or §114(a)(2)(B) to measure ambient air quality on
the premises.
DISCUSSION
1. For specified purposes, including "developing or assisting in the develop-
ment of any implementation plan under section 110, "the Administrator or his
authorized representative
(A) shall have a right of entry to, upon, or through any premises
in which an emission source is located . . ., and
(B) may at reasonable times . . . inspect any monitoring equip-
ment or methods required under paragraph (1), and sample any emis-
sions which the owner or operator of such source is required to
sample under paragraph (1).
§114(a)(2).
2. The Administrator may have authority to monitor emissions under his
"right of entry, " since the Act does not impose any restrictions or conditions
on that right of entry. For the purpose of "developing or assisting in the
development of [an] implementation plan under section 110, " it would appear
logical, and sometimes necessary, for him to conduct ambient air quality
monitoring. I/
3. The Administrator may also rely upon subparagraph (B) to set up his own
monitoring program. As noted in paragraph 2 of the Discussion to Question
#1, there is nothing in the legislative history to indicate that Congress intend-
ed to restrict his information-gathering powers to sampling of emissions in
the stacks of sources. An assessment of the impact and dispersion of a
source's emissions for the purpose of developing implementation plans must
include measurement of the emissions at several locations. Presumably,
when Congress authorized the Administrator to obtain information, it intend-
ed to provide all the information-gathering power necessary for the perfdrm-
ance of that task.
~T7 A source owner might argue that the right of entry is only for the pur-
pose of performing other functions authorized by section 114, such as
inspecting equipment or sampling emissions which the owner is required
to sample. However, we do not believe that the subsection (A) right of
entry is limited to subsection (B) activities. The two subsections are
connected by the conjunction "and", rather than by a phrase such as "in
order to" or "for the purposes of. "
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4. Although the statute can be read as allowing the Administrator to sample
only those emissions which the owner or operator has actually been told to
sample under §114(a)(l)(D), we believe a broader reading could also be de-
fended. Subparagraph (B) may be read as giving the Administrator general
authority to monitor any polluting emissions on the premises of the source
without any formalistic, prior requirement that the owner or operator also
monitor the emissions. Under this broader reading, subparagraph (B) can be
interpreted as referring to the type of emissions which the owner may_be re-
quired to sample when directed by the Administrator. However, even if the
source must have been previously told to sample the emissions, there is no
requirement in subparagraph (B)that the Administrator's sampling take place
in the same manner. Thus, the Administrator could sample emissions through
ambient air quality monitoring even if the owner or operator were only re-
quired to sample stack emissions.
QUESTION #3
To what "premises" does the Administrator have the right of entry under
§114?
ANSWER #3
The Administrator has a right of entry for the purpose of developing or assist-
ing in the development of an implementation plan to any tract of land which is
identifiable as the "premises" in which an emission source itself is located.
This would include an adjoining tract owned or operated by the owners or
operators of the emission source, particularly if the adjoining land is in some
way related to the emission source.
DISCUSSION
1. Section 114 of the Clean Air Act says the Administrator or his authorized
representative, for specified purposes, "shall have a right of entry to, upon,
or through any premises in which an emission source is located . . . . "
§114(a)(2). The evolution of language clearly is from the narrower terms in
S. 4358 of "building, structure, or facility" and the narrower terms in H. R.
17255 of "establishment" to the broader concept in the Act of "any premises
in which an emission source is located. " The word "premises" is defined by
Webster's Seventh New Collegiate Dictionary at page 671 as:
a: a tract of land with the buildings thereon
F: a building or part of a building usually with its grounds or other
appurtenances
The word does not have one fixed and definite meaning. As the court stated
of this term in Gibbons v. Brandt, 170 F.2d 385, 387 (7th Cir. 1947), "It is
to be determined always by its context, and it has been held to mean real
estate or buildings, or both. " In the present situation, section 114 gives the
Administrator a right of entry which is essentially an exemption from trespass
laws. The legislative history would suggesta broad reading of that exemption
or right, wherever necessary to effectuate the purposes of section 114.
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2. The owner or operator of an emission source may try to restrict the area
subject to the Administrator's right of entry by erecting a fence next to the
emission source and declaring the rest of his land not to be the same "pre-
mises. " There is no reason to conclude that §114 is so narrow as to permit
such a ploy. If the Administrator's purpose in entering the land adjoining the
fenced-off source were one of the purposes envisioned by Congress in granting
him the right of entry, then common ownership of the adjoining tract should
make it the same "premises. "
§§§§§§§
TITLE: Ambient Air Quality Monitoring by EPA
DATE: September 28, 1972
MEMORANDUM OF LAW
FACTS
Your memorandum of September 12, 1972, informs us that the Standards
Development and Implementation Division is initiating an air quality sampling
program around a number of smelters for which emission regulations were
proposed by EPA on July 27, 1972. Potential sites for locating monitoring
equipment were based on diffusion model predictions. Some of these sites are
on land owned by the smelters, e.g., at Kennecott Copper's Utah Smelter.
The monitoring equipment at each of the sites would be operated by EPA per-
sonnel.
QUESTION #1
What is the meaning of the phrase "to which the general public has access" in
EPA's definition of "ambient air"?
ANSWER #1
We believe that the quoted phrase is most reasonably interpreted as meaning
property which members of the community at large are not physically barred
in some way from entering.,
QUESTION #2
Should a different definition of "ambient air" be made for primary versus
secondary standards since secondary standards involve welfare and not the
health of persons ?
ANSWER #2
EPA's regulation defining "ambient air" makes no such distinction, and we
find a suggestion in the Act that Congress intended such a distinction.
QUESTION #3
What type of approval from smelter officials is necessary in order to operate
sampling equipment on smelter property ?
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ANSWER #3
Informal, oral permission is acceptable.
DISCUSSION
1. EPA's regulations prescribing national primary and secondary ambient
air quality standards define "ambient air" to mean that portion of the atmo-
sphere, external to buildings, to which the general public has access. " 40
CFR 50. l(e). That definition, in our view, limits the standards' applica-
bility to the atmosphere outside the fence line, since "access" is the ability
to enter. #/ In other words, areas of private property to which the owner or
lessee has not restricted access by physical means such as a fence, wall, or
other barrier can be trespassed upon by members of the community at large.
Such persons, whether they are knowing or innocent trespassers, will be ex-
posed to and breathe the air above the property.
2. In our telephone conversation, you have pointed out that this conclusion
enables the property owner to determine what constitutes "ambient air" since
he may fence his property and thereby preclude public access. This result
may indicate that a property line boundary rather than a fence line boundary
for ambient air makes better sense. Two factors dictate that this interpre-
tation not be adopted: 1) the ordinary meaning of "access" includes the right
or the ability to enter (see footnote below); 2) any definition which limits the
scope of applicability of ambient air quality standards must be examined in
the light of §107 of the Clean Air Act. That section provides that "Each State
shall have the primary responsibility for assuring air quality within the entire
geographic area compromising such State... " (emphasis added). In our view,
a definition of "ambient air" that excepts fenced private property (or public
lands) from the applicability of the Act is probably inconsistent with the quoted
statutory language; expanding the exception beyond its current limits is clear-
ly not legally supportable.
3. An argument can be made that the existing 40 CFR 50. l(e) is not incon-
sistent with §107 of the Act insofar as primary standards are concerned,
because those standards are concerned with public health and the definition
is directed at the general public's exposure to risks. This argument does not
apply, however, in the case of secondary standards, which are to protect
against adverse effects on "... soils, water, crops, vegetation, man-made
materials, animals, wildlife, weather, visibility and climate" and "damage to
and deterioration of property... as well as effects on economic values and on
personal comfort and well-being". Even assuming for the sake of argument
that any of the tangible things in the quoted list may be harmed by air pol-
lution without contravening the law if they are upon fenced private property,
it is highly unlikely that adverse effects upon weather, visibility, and climate
can be so restricted. In addition, it is clear that despoilation of the landscape
may affect the personal well-being of many individuals in the psychic sense,
even if some sort of barrier separates them from the despoilation.
4. If any problems arise regarding the activities of Federal employees upon
provate lands, please contact me and I will confer with our Grants and Pro-
curement Division.
*7 Webster's Third New International Dictionary (1966) defines "access" to
mean "Permission, liberty, or ability to enter".
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MOBILE SOURCES
TITLE: New or Restored Engines in Old or Restored Vehicles (§213)
DATE: January 14, 1972
FACTS
Kern Industries of Ayer, Massachusetts restores pre-1950 Citroen automo-
biles. The original body and mechanical equipment are utilized except that a
new 1971/72 2.1 litre Citroen engine will be installed. Kern represents that
space limitations prevent installation of the pollution control equipment which
is a part of the new engines installed by Citroen in their 1972 models. Mr.
Kern has asked for a waiver for these engines from the provisions of the
Clean Air Act.
QUESTION # 1
May 1971 and 1972 model year motor vehicle engines which are not equipped to
meet EPA emission standards be imported into the United States ?
QUESTION #2
Is a restored body-chassis powered by a 1971/72 engine which has not pre-
viously been used subject to EPA emission control regulations applicable to
light duty motor vehicles and, therefore, required to be covered by a certifi-
cate of conformity ?
ANSWER #1
The 1971 model year motor vehicle engines may not be imported into the Unit-
ed States unless they are covered by a certificate of conformity with Federal
emission standards for that year, or are conditionally admitted pending certi-
fication. The 1972 model year engines may be imported under a declaration
that they are not subject to the Clean Air Act and Federal motor vehicle emis-
sion control regulations.
ANSWER #2
The chassis-body-engine combination constitutes a "new motor vehicle" with-
.in the meaning of §213(3)of the Clean Air Act, and is subject to the standards
and certification requirement of 45 CFR Part 85.
DISCUSSION
1. Section 202 of the Clean Air Act authorizes the Administrator to regulate
emissions from new motor vehicle engines. Emission standards were in effect
for light duty motor vehicle engines in model year 1971, but were deleted for
1972. since §213(3)provides that imported engines shall be considered "new1
if they were manufactured during a model year for which engine emission
standards were in effect, 1971 model year engines are "new"but 1972 engines
are not. Generally speaking, a "new" engine must be covered by a certificate
of conformity with Federal emission standards or its importation is prohibit-
ed by §203(a)(l) of the Act. There are special entry procedures under joint
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Bureau of Customs EPA regulations (19 CFR 12.73) which provide for impor-
tation under bond pending certification. An engine which is not new may be
imported under a declaration that it is not subject to the Act or regulations
thereunder.
2. Irrespective of how the engines are imported, the chassis-body-engine
combination which Kern proposes to manufacture will be a new motor vehicle
within the meaning of the Clean Air Act, and subject to EPA's emission con-
trol regulations. It is clearly a "motor vehicle", since that term is defined
in §213(2) as "any self-propelled vehicle designed for transporting persons
or property on a street or highway" [emphasis added], and the propulsion
referred to is obviously that supplied by some engine. Accordingly, Kern
may not successfully argue that EPA is compelled to evaluate the applicability
of the standards on the basis of the vehicle (body-chassis) or the engine
separately.
3. The provisions of Title II of the Act apply generally to any new motor
vehicle, whichis defined in §213(3) as ".... a motor vehicle the equitable or
legal title to which has never been transferred to an ultimate purchaser; . .. ".
In this case, the title to the vehicle consisting of a pre-1950 Citroen body-
chassis combination and a 1971/72 Citroen engine has never been transferred
to an ultimate purchaser, and therefore, it is a "new motor vehicle" within the
meaning of §213(3). This result is consistent with the congressional intent,
which was to make the emission regulations applyto new sources of pollutants.
Clearly, this vehicle powered by a recently manufactured engine is not an
existing pollutant source. It has all the basic characteristics associated with
any other new automobile just off the assembly lines, despite the fact that it
is novel.
4. Since Kern Industries is a person "engaged in the manufacturing or assem-
bling of a new motor vehicles", i. e., they are in that business, they are a
"manufacturer" within the meaning of §213(1) of the Act. Kern must obtain a
certificate of conformity for these vehicles, unless MSPC determines that
they are covered by the certificate issued to Citroen.
§§§§§§§
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TITLE: Replacement Engines for Installation in Vehicles of Prior Model
Years
DATE: April 27, 1971
FACTS
General Motors manufactures partial engines (short blocks) to provide re-
placement engines for vehicles manufactured in prior model years. The short
blocks are not used in new motor vehicles. These partial engines are built
to the specifications of the prior model year involved, but they do not include
carburators, electrical equipment, or intake or exhaust manifolds. Presum-
ably, these components are installed by General Motors dealers or other
dealers, independent garages, or the vehicle owner. General Motors has
asked for a determination that they are not required to obtain certificates
of conformity for short blocks.
QUESTIONS
Are short blocks subject to motor vehicle engine emission standards promul-
gated under Section 202 of the Clean Air Act?
ANSWER
Short blocks are not "motor vehicle engines" within the meaning of the Clean
Air Act and, therefore, are not subject to emission standards promulgated
under the Act. Accordingly, no certification of conformity under Section 206
of the Act is required for such partial engines.
DISCUSSION
The Clean Air Act does not expressly define "motor vehicle engines," but it
does make them subject to emission standards. Section 213(2) of the Act de-
fines "motor vehicle" as "any self-propelled vehicle designed for transport-
ing persons or property on a street or highway." It is our opinion that the
quoted definition by implication defines "motor vehicle engine" to mean any
engine which is capable of propelling a "motor vehicle." As manufactured,
the short block is not capable of being utilized to propel a vehicle. This
limitation compels the determination that short blocks are not subject to
the Act.
In our view, the short block should be considered as a part (or parts) which
will be used in the replacement market only, just as carburetors, distribu-
tors, and other replacement parts. Where a manufacturer produces a com-
plete engine for the replacement market, it is subject to the emission stan-
dards applicable to the model year engines it is intended to replace, and,
if manufactured to the specifications of those engines, it would be covered
by the certificate of those engines, it would be covered by the certificate
of conformity issued for those engines. If it is not manufactured to the speci-
fications of a certified engine, separate certification would be required.
§§§§§§
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EMISSION CONTROL SYSTEMS
TITLE: Modification of Emission Control Systems or Devices
DATE: May 28, 1971
FACTS
In connection with your office's proposed set of regulations on modifications to
motor vehicle emission control systems or devices, we have recently sentyou
a memorandum of law which attempted to define the scope of the Administra-
tor's authority under the Clean Air Act to grant exemptions from section
203(a)(3). As you know, that section prohibits any motor vehicle manufacturer
or dealer from intentionally removing or rendering inoperative any motor
vehicle emission control device or system installed in compliance with Fed-
eral emission standards promulgated under section 202 of the Act. Our fur-
ther discussions with OAP's Ypsilanti staff concerning the proposals of Cum-
mins Engine Corporation, and others to have their dealers modify certified
engine configurations I/ have indicated a need for further examination of the
engine modification issue and section 203(a)(3) in a broader context than
we dealt with in our earlier memorandum.
QUESTION
Does section 203(a)(3) of the Clean Air Act prohibit all modifications by manu-
facturers and dealers to certified configurations of motor vehicle emission
control systems or devices, or does the section allow the Administrator
to review proposed modifications and approve those which do not impair
the emission control performance of the vehicle or engine as manufactured?
ANSWER
Section 203(a)(3) maybe interpreted as allowing the Administrator to evaluate
and approve emission control system or device modifications which he deter-
mines do not impair the ability of the vehicle or engine involved to conform
with applicable Federal emission standards for the lifetime of such vehicle
or engine. This determination would require the Administrator to review
such test data and/or specifications as he deems necessary for a sound engi-
neering judgment.
DISCUSSION
Section 203(a)(3) was obviously intended to prevent tampering with emission
control systems or devices. We do not believe, however, that it is reasonable
to interpret the section as creating an obstacle to the development of emission
control equipment for installation on 1968 and subsequent model year ve-
hicles, which is more effective than the devices or systems which were
T/ These modifications would be to vehicles which are already in the hands
of ultimate purchasers.
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originally installed. Installation of this improved equipment will in many
cases, we assume, involve the removal or rendering inoperative of the ori-
ginal control devices or systems. Where the Administrator determines that
a proposed substitution or modification of control equipment will not result
in emissions in excess of the applicable standards, we conclude that such
substitution or modification does not involve a removing or rendering inopera-
tive within the meaning of section 203(a)(3) and is therefore not prohibited.
Beginning with the 1972 model year, new motor vehicles and new motor ve-
hicles engines subject to Federal emission standards will be warranted to
be —
"(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 un-
der sec. 202(d)r_2/
Logically, these requirements which the Congress has applied to vehicles and
engines as originally equipped should also be applied by the Administrator to
any equipment which he approves as a modification to or substitution for the
original equipment. Accordingly, the regulations should require, as a pre-
condition to approval, assurances that the manufacturer will warrant the
equipment installed in modifying the emission controls in accordance with
the requirements in section 207(a), with any appropriate modifications. At
such time as a performance warranty under section 207(b) becomes appli-
cable, the regulations should be amended to apply that warranty to modified
vehicles and engines.
The recall provisions of section 207(c) would also appear to be applicable to
vehicles and engines as modified, within the useful life of the vehicle or engine
itself. The manufacturer must be required to provide to the ultimate pur-
chaser written instructions for the maintenance reasonable and necessary
to assure proper functioning of the vehicle's emission control equipment,
as modified, to the extent such maintenance varies from that prescribed
for the vehicle as sold originally. This follows, since the manufacturer's
responsibilities under the recall and performance warranty provisions both
depend upon proper use and maintenance. Finally, the labeling requirement
of section 207(c)(3) and 45 CFR 120114 must be satisfied. Any modification
which renders the information on the label inaccurate will necessitate the
substitution of a correct label or installation of an additional label which pro-
vides the pertinent information to the owner and the mechanic.
We considered whether section 203(c) indicated a Congressional intent that
only modifications within its limited scope should be permitted, and conclude
that the section does not preclude the Administrator from evaluating and
approving other types of proposed changes in emission control devices or
systems.
Since, as our answer here and in the memorandum regarding section 203(c)
state, the critical test of any modification is whether, in the Administrator's
opinion, it precludes continued compliance with the emission standards for the
_2/ Section 207(a) of the Clean Air Act, as amended.
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useful life of the vehicle or engine, the Administrator must obtain sufficient
information to enable him to make a determination regarding continuing com-
pliance. We think that the format and the information requirements of the
regulations on modifications which you have submitted for our review are ap-
propriate for this purpose.
§§§§§§§
TITLE: Lead Emissions from Motor Vehicle Exhaust (Sections 202, 211,110)
DATE: October 10, 1973
Bob Ryan's memorandum of September 27 requests that OEGC provide an-
swers to two questions posed by Senator Randolph regarding EPA's authority
under the Clean Air Act to deal with lead emissions from motor vehicle ex-
haust. The questions are set forth and answered below.
QUESTION #1
Does the Agency have the authority to impose a particulate or lead emission
standard for new vehicles under section 202 of the Clean Air Act which would
require use of a particulate trap rather than unleaded fuel ?
ANSWER #1
Yes. The language of section 202 (a) is clearly broad enough to authorize such
a standard, assuming the required finding with respect to endangerment of
public health or welfare is made. The section specifically allows the Admini-
strator to regulate "the emission of any air pollutant" (emphasis added),
and there is no implied limitation, in our view, to pollutants which do not
result from the use of an additive. In addition, before regulating fuel composi-
tion or additive use under section 211(c) of the Act, the Administrator must
consider 'the economic and technological feasibility of achieving the desired
health or welfare protection by using new motor vehicle emission standards.
QUESTION #2
Does the Agency have the authority to require retro-fitting of old vehicles with
particulate traps ?
ANSWER #2
There is no authority in Title II of the Act to regulate emissions from motor
vehicles which are not new. Specifically, section 2 02 is limited by its terms to
new motor vehicles and engines.
If, under Title I of the Act (§110), the Administrator determined that control
of particulate matter emissions from vehicles in use were necessary to assure
attainment of a national ambient air quality standard for that pollutant, we be-
lieve that sections 110(a)(2)(B) and 110(c) would authorize prescribing emis-
sion standards requiring use of reasonably available controls.
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TITLE: Trade Secret Information and Suspension of the 1975 Auto Emission
Standards (Section 202(B)(5))
DATE: February 15, 1972
QUESTION
In the course of deciding whether to grant a one-year suspension of the 1975
new motor vehicle emission standards pursuant to section 202(b)(5) of the
Clean Air Act, is the Administrator authorized to release to the public any
information which has been submitted by the auto manufacturers in support
of their application for suspension (even though such information may include
trade secrets) or is he required to keep trade secret information confidential?
ANSWER
So long as the Administrator weighs the public interest favoring disclosure
against the private interest favoring secrecy and relies upon substantial evi-
dence, rather than upon a per se rule requiring disclosure, he is authorized to
disclose to the public any information upon which he may rely in deciding
whether to grant a suspension.
DISCUSSION
1. This memorandum supplements my memo of February 7, 1972, in which
I concluded that the Administrator is authorized—and perhaps even required
— to disclose to the public any information (including trade secrets) upon
which he may rely in deciding whether to grant a one-year suspension of
the 1975 auto emission standards. At footnote 8 of his earlier memo Mr.
Schwartz indicated that he was unable to discover any cases directly on point
in the course of a brief search for precedents. Additional research has
yielded two cases which are closely analogous to the suspension problem
and which confirm the earlier conclusion with a slight qualification.
2. InF.C C. v. Schreiber, 381 U.S. 279, 85 S. Ct. 1459(1965), the Com-
mission subpoenaed certain records from Music Corporation of America
(MCA) in connection with public hearings investigating the practices in tele-
vision programming. MCA refused to submit the subpoenaed records, partly
on the ground that the Commission had refused to agree to treat certain
"trade secrets and confidential data" as confidential. The Supreme Court
ordered MCA to comply with the subpoena and upheld the Commission's de-
cision to make public the subpoenaed information. The Court found that such
a decision was not an abuse of discretion. 381 U.S. at 288.
3. In reaching this conclusion, the Court pointed out that the Commission had
applied a balancing test in deciding whether to make public the information in
question. The Commission determined that "'public proceedings should be the
rule' with exceptions granted 'only in those extraordinary instances where
disclosure would irreparably damage private, competitive interests and where
such interests could be found by the Presiding Officer to outweigh tHe"para-
mount interests of the public and the Commission in ful public disclosure.'
Id. at 293. [emphasis added]. The importance of this balancing test is under-
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scored by the Court's dictim that "The only. . .possible basis for [finding an
abuse of discretion by the Conimlsion] would be the assumption that the Pre-
siding Officer would consistently require disclosure even if a balancing of
public and private interests compelled secrecy. " Id. at 296.
4. While this dicta in Schreiber would prohibit a per se rule requiring disclos-
ure of all information in all circumstances, the presumption in favor of public
disclosure "accords with the general policy favoring disclosure of admini-
strative agency proceedings. Id. at 293. The reasons which support dis-
closure were outlined by the Court (and would apply equally to disclosure
of trade secret information in the course of the suspension proceedings under
the Clean Air Act). First, such disclosure enables other involved groups
and individuals to "supplement the record from their own diverse points of
view" thereby "stimulating the flow of information" to the Commission.
Second, public hearings, by involving the concerned public in the proceedings,
provide "a practical inducement to public acceptance of the results of the
investigation. " Third, publicity stimulates the flow of "public preferences
which may significantly influence administrative and legislative views as to
the necessity and character of prospective action. " Fourth, public disclosure
is "necessary to the execution of its duty.. .to make annual reports to Con-
gress. " Id. at 294-5.
5. These considerations weight the balance heavily infavor of public disclos-
ure. However, if compelling evidence is presented that certain information
would destroy a company's competitive position, if disclosed, a careful bal-
ancing of public and private interests is required to sustain administrative
action present willingness to share information on new developments in pol-
lution control technology, it may be difficult for most companies to prove
that disclosure of any relevant information would result in such irreparable
harm as to outweigh the pubic interest in disclosure.
6. The other case which appears to be on point in American Sumatra Tobacco
Corp. v. SEC, 110 F. 2d 117 (B.C. Cir. 1940). That case upheld the Securi-
ties Exchange Commission in its decision to disclose parts of petitioner's pro-
fit and loss statement, notwithstanding petitioner's request for confidential
treatment of such information. As in Schreiber, the Court interpreted the
basic authorizing legislation as requiring a weighing of public and private
interests in deciding whether to disclose. Also as in Schreiber, the Court
suggested the impermissibility of a per se rule requiring disclosure. "In
this case the Commission has not justified its position on the ground of
a general rule or policy. If it had, the case would have been different and
would have demanded different treatment. " Id. at 121. However, finding
that the commission's decision to disclose "rests on substantial evidence
and on inferences which are not arbitrary and capricious", the Court sus-
tained the Commission. In doing so, the Court recognized that in the course
of balancing public and private interests "the possibility of incidental loss
to the individual is sometimes unavoidable. "
§§§§§§§
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TITLE: Warranty Repairs on Emission Control Systems
DATE: November 22, 1972
MEMORANDUM OF LAW
FACTS
Automobile manufacturers currently require in their 12-month/12, 000 mile
warranties that warranty repair work must be performed by the manufac-
turer's authorized dealer with original equipment parts. I/ One manufacturer
interviewed on this subject states that this requirementTs a reasonable pro-
vision of the contractual warranty entered into between it and the buyer2_/,
since maintenance covered by warranty is paid for by the manufacturer and
it should therefore be able to specify who does the work, to guide and super-
vise the work, and to prescribe the parts to be used (its own).
The requirement on repairs covered by warranty is extended by the manufac-
turers to the Clean Air Act's five-year/50,000 mile defect warranties on
emission control (§207(a)(2)). Presumably, when manufacturers are required
under §207(b) of the Act to warrant the emission control performance of their
vehicles for their useful life, the manufacturers will require that repairs
covered by the warranty be performed by authorized dealers using original
equipment parts.
QUESTION
Does the Clean Air Act prohibit light duty motor vehicle manufacturers from
prescribing that repairs on emission control related systems or components
performed under a §207(a)(2) or §207(b) warranty must be performed by an
authorized dealer and/or with original equipment parts?
ANSWER
No such prohibition is expressed in the Act, and there appears to be no basis
for finding that such a prohibition is necessarily implied. Section 207(b) in-
cludes language indicating that the manufacturers would be required to per-
form the repairs under that warranty.
DISCUSSION
1. Since the warranties imposed by the Act are not contractual undertakings
between the manufacturer and the purchaser, the relevant question is whether
the warranty repair requirement, unilaterally super-imposed by the manu-
facturer upon action taken by Congress, is consistent with the legislative pur-
pose. _3/ We think it is incumbent upon EPA as the agency responsible for
il This requirement is not applied to routine preventive maintenance or other
maintenance.
2/ The unequal bargaining position of the parties involved indicates that the
" terms of the sale are dictated by the manufacturer rather than an agreed
to by the parties.
3/ Conditions inconsistent with provisions of the Act would be in violation of
~ §203(a)(4)(A), since they would constitute failure to provide the required
warranty to the purchaser.
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administering the Act to assess whether this requirement may have the effect
of diminishing the value of the §207(a)(2) or §207(b) warranty to the vehicle
owner and/or to motor vehicle emission control. Stated simply, the congres-
sional intent in §207 was that (1) the manufacturer should have a distinct in-
centive to build vehicles so that they could conform with applicable standards
during the period of their maximum usage, and (2) the consumer should get
the emission control he paid for. This was accomplished by requiring the
manufacturers to make good on defective parts and workman ship, to restore to
compliance individual vehicles found to be in violation of the standards, and to
recall and repair vehicles in a class found to violate the standards.
2. The primary intent and effect of the manufacturer's warranty repair re-
quirement is to guarantee the manufacturer and his dealers a captive market
in certain repairs and replacements related to emission control. While the
requirement may have significant impact upon competition in the automobile
repair and replacement parts industries-!/, it may be proven to be beneficial
for automotive emission control. This would follow because manufacturer's
dealers would likely be best informed on how to make necessary repairs and
parts replacements, and original equipment parts, which are presumably
identical to the parts used in certified test vehicles, would be most capable
of performing in compliance with the standards.
3. There appears to be express congressional recognition that the manufac-
turer should be directly responsible for correcting vehicle noncompliance
under the §207(b) performance warranty. Section 207(b)(2) states that the
warranty must provide that the manufacturer ". . . shall remedy such non-
conformity under such warranty with the cost thereof to be borne by the
manufacturer". While it is arguable that the manufacturer could in effect
"remedy" a nonconformity merely by reimbursing an independent garage which
performed warranteed repairs, the quoted language may at the very least
be read as a recognition of accepted practice under warranties. We make no
attempt to assess the significance of the absence of the quoted language in
S207(a)(2).
4. EPA must be mindful of the manufacturers' limited capability to perform
more than a relatively small percentage of the nation's automotive mainte-
nance through their dealers and the deterent effect this limited capability
could have on claims by owners under the §207 warranties. If, for example,
EPA determines in 1977 that the manufacturers are in effect negating the avail-
ability of the warranty repairs by forcing owners to obtain repairs through
dealer networks which are not equal to the task, Agency action to preserve
the viability of the warranty may be justified.
5. Finally, we wish to caution that a different conclusion than that expressed
in this memorandum may be appropriate in a situation in which repairs or re-
placement covered by §207 warranties are also scheduled maintenance under
§207(c)(3). In particular, the anti-competitive aspect of the manufacturers'
requirement would be far more substantial in that situation.
¥/ Our information is that the Justice Department and the Federal Trade
Commission have not objected to the manufacturer's requirement as ap-
plied to their contractual warranties.
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TITLE: Replacement of Catalytic Converters
DATE: June 27, 1972
MEMORANDUM OF LAW
j ™^—•«~WHMMM«_B^^_^B1
FACTS
In connection with his determination not to suspend for one year the effective
date of the hydrocarbon and carbon monoxide emission standards applicable to
1975 model year light duty motor vehicles (page 8 of the decision), the Ad-
ministrator concluded that the necessity of replacing a catalytic emission
control device at approximately half-way through a vehicle's useful life does
not preclude his determining that such devices constitute "effective" tech-
nology to meet the standards. Responding to questioning on this determination
before the Senate Air and Water Pollution Subcommittee (Sen. Eagleton), the
Administrator stated that the Agency was researching its authority on the
question of whether it could require the replacement cost to be included in
the original price of the vehicle. Senator Eagleton and the Administrator
agreed that if this requirement were imposed, vehicle owners would have
an incentive to obtain the necessary catalyst replacement, rather than be
faced with the disincentive of having to pay for the replacement as a mainte-
nance or repair item.
QUESTION
Does the Clean Air Act authorize the Administrator to require motor vehicle
manufacturers to include the cost of replacement of the catalytic emission
control device in the purchase price of 1975 and later model year vehicles?
ANSWER
The Administrator may, pursuant to§206(a), impose as aterm of a manufac-
turer's certificate of conformity the requirement that the manufacturer pro-
vide to the ultimate or subsequent purchaser of the vehicle a replacement
catalyst at no cost to the purchaser, other than any replacement cost which
may be included in the vehicle's original selling price.
DISCUSSION
1. Section 206(a) of the Act provides that the Administrator shall issue a cer-
tificate of conformity to a motor vehicle manufacturer with respect to any new
motor vehicle which he determines complies with applicable emission control
regulationfor its useful life. The section expressly provides that the Admini-
strator shall issue the certificate "upon such terms. .. as he may prescribe",
but neither the Act nor the relevant legislative history!/ provides guidance as
to the nature of terms which may be imposed by the Administrator. We con-
clude as a general proposition that the content of such terms is discretionary
l/ Section 206(a) was first enacted as part of the 1965 amendments to the
Clean Air Act (P. L. 89-272), and was amended in 1970 (P. L. 91-604).
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with the Administrator, provided that they are reasonably related to carrying
out the Congressional purpose in the Act. That purpose, in §206(a), is to en-
able the Administrator to determine, through the testing of prototype vehicles,
that production vehicles represented by those prototypes will conform with
the applicable emission standards for 50,000 miles or five years. 2j
2. Where prototype test vehicles require replacement of a catalytic control
device during 50, 000 mileage accumulation in order to demonstrate conform-
ity, it is clearly within the Administrator's discretion to require as a condition
of the pertinent certificate that the manufacturer provide for the replacement
of that device on production vehicles at the mileage point indicated by the
test vehicles. To provide for the replacement" could reasonably be specified
to mean at no charge to the owner (apart from any replacement costs included
in the purchase price of the vehicles) since the well-recognized resistance of
vehicle owners to paying for maintenance or repairs not directly related to
driveability problems would likely render ineffective a replacement program
involving out-of-pocket expense at the time of replacement.
r
3. The subject of conditioning certificates of conformity has been dealt with
in the motor vehicle emission control regulations since they were first prom-
ulgated in 1966. This language of §85. 55(a)(2) is precisely in point:
Such certificate will be issued for such period not more than 1 year
as the Administrator may determine and upon such terms as he may
deem necessary to assure that any new motor vehicle covered by the
certificate will meet the requirements of these regulations relating to
durability and performance.
4. A point which should be considered is that the imposition of the condition
discussed above could have a severe anti-competitive effect in the muffler
replacement market, because presumably only the manufacturers' dealers
would be involved in the replacement programs. Also of interest is the
possible economic windfall which could accrue to manufacturers if owners
who pay for catalytic converter replacement when they purchase a vehicle do
not actually obtain replacement.
2_J It is clear that Part A of Title II contemplates that the manufacturer is
to be responsible for the compliance of each vehicle for its useful life, so
long as it is properly maintained by the ultimate or subsequent purchaser.
§§§§§§§
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TITLE: Sulfuric Acid Particle Emissions from Vehicles Equipped with Plati-
num Catalysts
DATE: October 25, 1973
FACTS
In a letter to you of September 25, 1973, Ford Motor Company raised the
problem of sulfuric acid particle emissions from vehicles equipped with plati-
num catalysts. They cite in particular 40 CFR §85. 004(b)(l)(i) of the motor
vehicle certification regulations which prescribes the use of any control sys-
tem which ". . . in its operation or function cause the emission into the
ambient air of any noxious or toxic substance that would not be emitted in the
operation of such vehicle without such system, except as specifically permit-
ted by regulation. " Ford and the other manufacturers need to know EPA's
interpretation and application of this language since they are about to begin
certification testing of 1975 model year vehicles equipped with catalysts.
In order to identify the origin of the provision, you and I called Mr. Don
Jensen, now with Ford, who was with the California Air Resources Board
when it first adopted and implemented its emission control device certifica-
tion regulations. Mr. Jensen confirmed suspicions that the California regula-
tions had contained the substance of the provision, and described briefly how
it had been administered. California's approach was, with respect to cataly-
tic devices under consideration, to have a physician from the manufacturer
meet with a physician from the Board and if they agreed that no emissions
would be given off by the device of a nature and in sufficient amounts to
J endanger health, the requirement of the section was satisfied. No deter-
minations adverse to a manufacturer were made on the few devices certified
by the State.
Dr. Greenfield's recent memorandum on the catalysts emissions issues iden-
tifies platinum and palladium compounds as other possible emissions from
platinum catalysts.
QUESTION
What is the proper interpretation of 40 CFR §85. 004(b) with respect to its
application to the emissions resulting from the use of platinum catalysts?
(
ANSWER
In general, the provision requires manufacturers to test during the certifica-
tion stages to identify the compounds emitted by devices and gives notice to
manufacturers that they may be subjected to emission standards prescribed
on an emergency basis when the Administrator determines that a device will
emit a compound of a nature and in sufficient quantities to endanger public
health. There may exist substances so extremely noxious in very minute
concentrations that prudence would dictate that their emission be absolutely
prohibited, and in such a situation we take the view that the section would
authorize the withholding of certification based upon a determination by
the Administrator of this highly noxious character.
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DISCUSSION
The essence of the provision is that it is, as you have characterized it, in
your October 10 memo, a "catchall"; it was intended to cover substances for
which we have not prescribed standards and test procedures. Express au-
thority for the provision can be best be found in §202(a) of the Act, which
allows the Administrator to prescribe motor vehicle emission standards for
any air pollutant which "in his judgement causes or contributes to, or is
likely to cause or contribute to, air pollution which endangers the public
health or welfare11. The provision departs from the usual approach, however,
in that the judgment required by the section is made in a general fashion
only; a finding specific to a given substance is deferred until information
which could serve as basis for the finding is before the Agency. While this
approach admittedly presents a rather vaguely defined standard to guide the
manufacturer, we think it is legally defensible in view of the constraints
identified below under which we believe it must be administered.
Section 301(a), the Act's general rulemaking authorization for the Admini-
strator to "carry out his functions" may also provide a basis for prescribing
the provision. _!/ Certainly it is a proper function for the Administrator
to attempt to insure that his regulatory efforts to protect health do not create
greater or equal endangerments than those which they cure. Whether §202(a)
or §301(a) -is principally relied upon appears to make little difference in
practice, however, since in the case of most noxious substances we believe
that the Agency is required to engage in rulemaking beyond §85.004(b) in
order to legally give effect to the policy expressed there.
The relevant language of 40 CFR §85. 004(b)(l) is as follows:
(b)(l) Any system installed on or incorporated in a new motor vehicle
to enable such vehicle to conform to standards imposed by this subpart:
(i) shall not in its ope ration or function cause the emission into the ambient
air of any noxious or toxic substance that would not be emitted in the
operation of such vehicle without such system, except as specifically
permitted by regulation . . .
(2) Every manufacturer of new motor vehicles subject to any of the stan-
dards imposed by this subpart shall, prior to taking any of the actions
specified in section 203(a)(l) of the Act, test or cause to be tested motor
vehicles in accordance with good engineering practice to ascertain that
such test vehicles will meet the requirements of this section for the useful
life of the vehicle.
The meanings of "noxious" and "toxic" must be considered to be their diction-
ary definition, "harmful to health", since no other definition is provided. De-
spite the fact that the manufacturer is required to test to ascertain emissions
from the catalyst, he can be expected to make, at most, a preliminary judg-
In fact, that is the section cited in the Federal Register document of
March 30, 1966, which established it. The statement goes further to say
that the regulations "interpret and apply" §202 and other sections.
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ment as to the noxious character of a substance emitted. 2/ For example, he
could identify a substance having known carcinogenic properties. However,
we believe that since the provision specifically refers to emissions into the
ambient air, it must be read as covering substances which will be harmful
to health in the concentrations in which they can be projected to exist in
the ambient air. This is a judgment which can be made, both from the
legal and factual standpoints, only by the Administrator. Only the Agency
is in a position to know how many manufacturers will use a certain system
and how many vehicles will use it. This information is necessary to the
determination of noxiousness in all cases except perhaps those where the
substance is so extremely toxic that there would be general agreement that
any emissions ought to be prevented.
What the above leads to is the conclusion that the Administrator cannot usually
merely make a determination that a substance is inherently noxious, but must
determine what ambient concentrations of it are noxious, and what are the
permissable emission levels to assure that ambient levels will not attain the
noxious concentrations. In addition, he must identify a test procedure or pro-
cedures for measurement. That, in essence, is the §202(a) standard-setting
procedure. Accordingly, it is our view that in order to effectuate §85. 004(b)
in most situations, the Administrator must set forth by regulation the per-
missable emissions for a vehicle and a test procedure for determining com-
pliance with that limitation.^/ Like other regulations, this standard should
be proposed, except that special considerations which would justify a finding
of good cause for immediate effectiveness under the Administrative Proce-
dure Act would allow promulgation without proposal.
Considerations of effective date raise the issue of lead time. Section 202(a)
specifically addresses the lead time issue, requiring the Administrator to de-
termine what time is necessary for developing and applying technology. We
are of the view that this requirement must not be ignored even if the regu-
lations are viewed as being founded on §301(a), since at the least the Ad-
ministrator must make a determination based upon reasonable time. Be-
cause of the exceptional nature of the system-created pollutant, however,
we believe that this determination may properly include consideration of the
risk to health presented by the substance involved. That is, the risk of ex-
posure from one model year's production of vehicles on the road may be
acceptable to the Administrator, while two years' production may not. In
this connection, we should note that the model year cut-offs need not deter-
mine the applicability of the special standards.
21 There is a distinct timing problem involved in getting any of the test data
to the Administrator, since the manufacturer need not report his data
until submission of the Part II certification application (See §85. 075-4(c),
which now improperly references §85. 075-1 instead of §85. 004).
_3/ This would almost certainly mean that the standard would not take effect
until the model year following the one in which the problem is first iden-
tified. While this presents obvious difficulties, some relief could be
obtained for the future by requiring §85. 004(b) test results to be reported
during the development phase of control system engineering.
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Finally, a specific question that was raised was whether sulfuric acid emissions
from catalysts could be dealt with under the provision if vehicles not equipped
with such systems also emit that pollutant. The answer to this lies in the dis-
cussion above regarding the determination of noxiousness. Even though sul-
furic acid emissions may have been present before, if the addition of the cata-
lyst is the element that increases them to the point where they can be adjudged
noxious, the provision may be applied.
§§§§§§§
TITLE: Shipment of Uncertified Vehicles
DATE: July 1, 1971
MEMORANDUM OF LAW
FACTS
Due to a number of factors, including the lead time allowed for compliance with
1972 motor vehicle emission standards, many manufacturers will not complete
their durability testing of vehicles until a very short time before they plan to
introduce their 1972 line for sale. Since no certificate of conformity can be
issued until such testing is completed and the results evaluated, and the law
prohibits the introduction or delivery for introduction into commerce of vehicles
unless covered by a certificate of conformity (Section 203(a)(D), several manu-
facturers have stated that they will experience severe logistical problems.
Specifically, even though the testing will not be completed, since the manu-
facturers are confident that the results will qualify the vehicles for certifica-
tion, production of 72 model year vehicles will commence as it has in previous
years. As is the usual practice, arrangements have been made by the manufac-
turers with the railroads and trucking companies to ship these vehicles to
dealers as they come off the assembly line. This will be prior to the time
the vehicles are covered by certificate of conformity. Manufacturers do not
have facilities for the storage at the plants for the large number of vehicles
which they produce.
QUESTION
Pursuant to the Clean Air Act and its implementing regulations, is there a
method by which manufacturers, without transferring title to vehicles, can
ship vehicles to dealers solely" for the purpose of storage at the dealers7
premises, without violating the prohibited Acts set forth in §203 of the law?
ANSWER
Section 85. 91 of the regulations provides a legal basis on which the Admini-
strator may issue a limited certificate of conformity, permitting such ship-
ment, provided D technical judgments as to the likelihood of compliance
can be made, and 2) appropriate steps are taken to preclude the transfer^
of title from the manufacturers to dealers or other persons.
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DISCUSSION
Section 302(a)(l) prohibits, with respect to a new motor vehicle, the selling,
offering for sale, ". .. the introduction or delivery for introduction into com-
merce, . . . unless such vehicle ... is covered by a certificate of conformity
issued (and in effect) under regulations prescribed under this part " (§312
(b)). This meaning is in accord with established judicial definitions of the term.
While a weak argument could be made that the prohibition against introduction
into commerce may be read as meaning introduction into commerce for~pu7r
poses of sale, we do not believe that this contention can be sustained. "Not
only is it contrary to the usual concept of "introduction into commerce", but
the prohibited acts are rather clearly intended to specifically cover those acts
associated with the sale of vehicles. Accordingly, vehicles may not be shipped,
even for the purpose of storage, unless covered by a certificate of conformity.
The certificate of conformity referred to in the preceeding paragraph is issued
by the Administrator pursuant to Section 206(a)(l), if after testing, etc., he
determines that vehicles submitted by a manufacturer conform with the regu-
lations prescribed under Section 202 of this Act. The certificate may be issued
"upon such terms, and for such period (not in excess of one year)," as the
Administrator may prescribe. '
Section 202 of the Act contains the general authority to issue emission regula-
tions applicable to new cars. Under this Section, EPA has issued the standards
and the test procedures by which compliance is determined. The test procedure
include the requirement that certain vehicles of each type be run for 50, 000"
miles to determine the extent of deterioration; i. e., the extent to which emis-
sions increase over the useful life of the vehicle. Once these tests are com-
pleted a "deterioration factor" is established, which can then be applied to other
vehicles of the same type, which may be run only 4, 000 miles. Under normal
circumstances, a certificate of conformity cannot be issued until the completion
of the durability tests and the application of the deterioration factor to the 4, 000
mile test results from the required number of vehicles of the same type.
As background for what follows, it should be understood that in the past, on a
few occasions, the Agency has issued to manufacturers "conditional certificates
of conformity'1 which have allowed not only the shipment, but the sale of ve~
hides, prior to the time the durability vehicle mileage accumulation was com-
pleted. In all of these situations-there was some extraordinary factor which
prompted both the requestfor such a certificate and its issuance. (For example,
a durability vehicle had been destroyed after accumulating 45,000 miles.)
Without going into an analysis of the legality of the prior issuance of condi-
tional certificates, it must be understood that in each case where such a certi-
ficate was granted the program was advised by this office that issuance could
only be considered if, on the basis of emission data and durability (deteriora-
tion) data possessed by the program, a sound engineering judgment could be
made that the cars would comply with the standards when testing was com-
pleted. When the program made this determination, these certificates were
issued, (with the concurrence of the Office of General Counsel) despite the
fact that the applicable regulations contained no authorization for their issu-
ance.
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The regulations under Section 2 02 of the Act with which we are now concerned
contain one provision, not in previous regulations, which may provide legal
support for the issuance of the conditional certificate" Section 85. 91 (b) of the
regulations provides "each durability data vehicle shall be driven . . . for
50,000 miles or such lesser dTstanceas the Secretary may agree to as meeting
the objectives of this procedure. '' (Emphasis added) Clearly, this paragraph"
authorizes the Administrator to issue a certificate of "conTormity to manufac3
turers who have run vehicles less than 50, OOP miles if he is satisfied that
vehicles of that type will remain in compliance with the standards for their
useful life. Since the Administrator could legally issue an unqualified certifi-
cate of conformity to manufacturers who had not run the full 50, 000 mile test,
without requiring the completion of the tests, we believe the Section offers a
basis for issuing a limited certificate to manufacturers who have not com-
pleted the required testing. Again, the crucial factor is the judgment by the
Administrator that, based on data available to him when the limited certificate^
is issued, the vehicles will comply when the tests are completed.
While we can supply legal support for this approach, the policy problems, and
their effect on the legal basis for action must be considered. The obvious
questions that the issuance of the limited certificate will engender is, if the
Administrator has determined that the cars will conform, why require the
manufacturers to accumulate the full 50, 000 miles rather than simply issue
the unconditional certificate at this time ? While there is no good answer
to this question, we maybe able to respond that, despite, the Administrator's
determination that the vehicles would comply, the manufacturers have not
requested that they be excused from further tests, there is no compelling
reason to excuse them from finishing the tests and that while we are confident
the additional data will not disqualify the vehicles, the additional data may
be useful. We would probably have to candidly state that this unusual proce-
dure is, in part, due to the delay on the part of DHEW in promulgating the
standards and test procedures too late for the manufacturers to complete
their tests in time to avoid the present situation. Moreover, the precautions
taken by EPA to insure that the vehicles are not, infact, operated until certi-
fied, effectively accomplishes the purpose of the Act. Without going further
into the matter, this may eventually lead to the assertion by interested parties
that EPA has acted improperly, since with full knowledge of the situation that
they were creating, the manufacturers refused to change their plans for pro-
ducing, shipping and introducing 72 model year vehicles in late 71 rather
than adjusting their arrangements to the requirements of the law.
A difficult question which EPA must be prepared to answer is this: once the
manufacturers have shipped these cars, can we rely on results of tests which
the manufacturers themselves are now performing, with the knowledge that
unfavorable results will require them to gain posse"ssion of these vehicles
dealers throughout the United States. ~~
Assuming that EPA desires to allow the shipment of vehicles, the only re-
spectable legal approach is that our present information allows us to make
the sound judgment that the cars will conform, and that we consider that
the additional tests are necessary to validate our determination.
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TITLE: Authority to Compel Auto Manufacturers to Conduct Tests
DATE: August 18, 1971
FACTS
This is in response to your oral request of July 28, 1971, for an opinion on the
scope of the Administrator's authority to compel automobile manufacturers to
conduct tests, the results of which EPA would use to develop effective compli-
ance tests for production model motor vehicles. Specifically, the concern
raised was whether manufacturers could be compelled by regulation to test
production model vehicles to help determine whether any correlation exists
between emissions of new motor vehicles at no or low-mileage and emissions
of such vehicles at 4,000 miles. Your bureau has presented us with no
information detailing the nature or extent of testing which would be compelled
under the proposed regulation.
ISSUE
i
Is the Administrator authorized to require automobile manufacturers to con-
duct tests and report the results thereof in order to assist the Environmental
Protection Agency in establishing an effective compliance testing program
for production-model new motor vehicles pursuant to section 206(b) and (d)
of the Act?
ANSWER
The Administrator is authorized to require automobile manufacturers to con-
duct tests and report the results thereof in order to assist EPA in establishing
an effective compliance testing program for production-model new motor
vehicles pursuant to section 206(b) and (d) of the Act.
DISCUSSION
1. Section 206(b)(l) of the Clean Air Act provides,
In order to determine whether new motor vehicles are 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 vehicle or engines. Such
tests may be conducted by the Administrator directly or, in accordance
with conditions specified by the Administrator, by the manufacturer.
2. The Administrator's authority and duty to establish appropriate test pro-
cedure is further underscored by section 206(d): "The Administrator shall
by regulation establish methods and procedures for making tests under this
section."_!/
I/ 5e'e also Report No. 91-1146, June 3, 1970, p. 3: "The Administrator
~ is authorized and directed to test, or require to be tested in such manner
as he deems appropriate, any new motor vehicle or motor vehicle engine
as it comes off the assembly-line in order to determine whether the ve-
hicle or engine conforms with the applicable emission standards.
[emphasis added]
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3. The question raised in this memorandum is whether the Administrator is
authorized to perform the functions imposed on him by section 206 by com-
pelling automobile manufacturers to conduct testing to assist the Agency in
determining the relationship between emissions at no or low-mileage accumu-
lation and emissions at 4,000 miles. The Clean Air Act authorizes the Admini-
strator to compel automobile manufacturers to conduct tests to obtain a certifi-
cate of conformity (section 206(a)(l)), to assist the Administrator in deter-
mining whether production-model new motor vehicles comply with regulations
under section 202 (section 206(b)(l)) and with part A of Title II (section 208(a)),
and to enable him to furnish information to the National Academy of Sciences
(section 202(c)(4)(B)). However, the Act contains no express authority for the
purpose of developing a production-model compliance test.
4. Since Congress provided no such express authority, it is arguable that
Congress intended not to permit the Administrator to impose such a require-
ment on automobile manufacturers.^/ Furthermore, it is clear that Congress
provided means by which the necessary test procedures and correlations could
be developed - i. e. , authority to conduct research, to make grant awards, and
to enter into contracts under sections 103, 104(a)(2)(C), and 104(b). Therefore,
it may be argued that Congress did not intend to permit the Administrator to
require the manufacturers to perform such tests and that authority to do so may
not be implied. Finally, in light of past practice and the authority contained
in section 104(b) of the Act, the function of developing test procedures to gauge
compliance may be viewed as a governmental function which was not intended
to be shifted to the industry being regulated.
5. While these points are entitled to some weight, we are unable to find any
expression of congressional intent to bar the Administrator from requiring
manufacturers to perform testing for purposes other than those expressly
authorized. Nor does the legislative history of the Clean Air Act support the
view that government research, grants, and contracts were intended to be the
exclusive means of developing assembly-line test procedures.
6. Furthermore, section 301(a) of the Act creates broad regulation-setting
authority to enable the Administrator to perform his duties under the Act.
The first sentence of that section provides,
The Administrator is authorized to prescribe such regulations as are
necessary to carry out his functions under the Act.
~%1 But see American Trucking'Association Inc. v. U.S., 344 U.S. 298, 309-
10, 73 S. Ct. 307, 314 (1953):
As a matter of principle, we might agree with appellant's contentions if
we thought it a reasonable canon of interpretation that the draftsmen of
acts delegating agency powers, as a practical and realistic matter, can
or do include specific consideration of every evil sought to be corrected.
But no great acquaintance with practical affairs is required to know that
such prescience, either in fact or in the minds of Congress, does not
exist, [citing cases] Its very absence, moreover, is precisely one of
the reasons why regulatory agencies. . .are created, for it is the fond
hope of their authors that they bring to their work the expert's famili-
arity with industry conditions which members of the delegating legisla-
tures cannot be expected to possess.
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7. In our opinion, section 301(a) was intended as a grant of authority for the
Administrator to exercise those powers necessary and proper to accomplish the
ends mandated by the Clean Air Act. Similar language in other enabling legis-
lation has been so construed by the Supreme Court. In American Trucking
Association Inc. v. U. S., supra, at nt. 2, all nine members of the Supreme
Court, including two dissenting Justices, agreed that language in the Interstate
Commerce Act akin to section 301(a) "grants the Commission broad implied
powers to carry out the general purposes of the Act." 344 U.S. at 323. In a
different context, the Court also held that such general rule-making authority
"may itself be an adequate source of authority.. .unless by express provision
of the Act or by implication it has been withheld." Fleming v. Mohawk Wrecking
and Lumber Co., 331 U.S. Ill, 67 S. Ct. 1129, 1134(1947). "
8. It is true that in American Trucking "the problem which gave rise to the
rules., .was not in existence when Congress enacted the Motor Carrier Act"
(Davis, Administrative Law, 1960, p. 39), whereas in this case, Congress was
aware of the 0 mile-4, 000 mile lack of correlation at the time of the legisla-
tion^/ yet did not expressly authorize the Administrator to require testing by
manufacturers for this purpose. While Congress was aware of the problem,
there is no indication in the legislative history of the Clean Air Act that
Congress considered expressly authorizing (or prohibiting) the Administrator
to solve the problem by requiring the manufacturers to assist in the conduct
of research. We do not regard the factual difference between American Trucking
and this situation to be so significant as to make inapplicable the holding of
American Trucking - i. e., that general rule-making authority may be invoked
even in the absence of express authority elsewhere in the Act.
9. The question remains, however, whether promulgation of a regulation re-
quiring manufacturers to conduct tests to assist in the development of an
assembly-line test is necessary and proper to enable the Administrator to ful-
fill his functions under section 206. Such a regulation may not be "necessary"
in the sense that it would be the only alternative way of doing the requisite re-
search. However, it is "necessary" in the sense in which that term is used in
section 301(a) - i.e., it represents on alternative way which, if employed,
would result in achievement of the stated objective. As Chief Justice Marshall
wrote in the landmark case of McCulloch v. Maryland, 17 U.S. (4 Wheat) 316
4 L.Ed. 579 (1819), which interpreted the word "necessary" in Article I,
section 8, clause 18 of the U.S. Constitution:
To employ the means necessary to an end, is generally understood
as employing any means calculated to produce the end, and not as
being confined to those single means, without which the end would
be entirely unattainable.
See comments of Rep. Farbstein, Congressional Record, June 10, 1970,
H. 5357; Rep. Van Deerlin at H. 5372-3; and minority views of Reps.
Van Deerlin, Ottlinger, and Tiernan, Report No. 91-1146, June 3, 1970,
p. 52. In addition to these comments indicating Congressional concern that
the 0 mile-4, 000 mile lack of correlation required solution, see Report No.
91-1146, JuneS, 1970, p. 5: "While a start has been made in controlling
air pollution since enactment of the Air Quality Act of 1967, progress has
been regrettably slow. This has been due to a number of factors: ... (4)
inadequacy of available test and control technologies...
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Since the regulation in question furthers the basic purpose of the statute, and
in particular sections 206(b) and (d), it must be considered as "necessary"
within the meaning of section 301(a). See also Federal Maritime Commission
v. Anglo-Canadian Shipping Co., 355 F. 2d 255 (9th Cir. 1954).
10. Whether a regulation requiring reasonable testing by manufacturers to
assist in the development of an assembly-line test is a proper exercise of the
Administrator's rule-making power is the second part of the question. The
basic principle of law which governs the determination of whether a rule is
"proper" was stated in Dixon v. U.S., 381 U.S. 68, 74, 85 S. Ct. 1301(1965):
The power of an administrative officer or board to administer a Federal
statute and to prescribe rules and regulations to that end is not the
power to make law., .but the power to adopt regulations to carry into
effect the will of Congress as expressed by the statute. A regulation
which creates a rule out of harmony with the statute, is a mere nullity.
11. The problem, then, is whether the regulation under consideration would
"carry into effect the will of Congress" or be "out of harmony with the statute."
The problem is a difficult one, because in one sense the regulation is "out of
harmony with the statute." Congress expressly permitted the Administrator
to require manufacturers to conduct tests, .but only for certain purposes. The
regulation requires testing for purposes other than those specified.
12. Yet in another, broader sense, the regulation would carry out "the will of
Congress as expressed by the statute" and be "in harmony" with it. Congress
ordered the development of an assembly-line test procedure and program. It
did so not merely for the purpose of section 206, but as a crucial link in an
integrated regulatory scheme.
13. Attainment of the emission standards under section 202 can only be assured
if production-model vehicles are tested. The validity of certificates of con-
formity issued under section 206(a) can only be verified by such tests. The
warranty provisions of section 207, which are designed to insure that the emis-
sion standards will be met during the useful life of the vehicle, do not become
effective until test procedures are developed with are "reasonably capable of
being correlated with tests conducted under section 206(a).M (Section 207(b))
The entire automobile emissions standards program of Title II is inextricably
related to the national ambient air quality standards and State implementation
plans. These plans represent emission control efforts to complement Title II
and to some extent must be based on what is achievable through regulation of
automobile emissions. Thus, development of a production-model test proce-
dure or failure to do so will "directly affect the regulatory scheme of the Act,"
just as was the case in American Trucking Association Inc. v. U. S., supra.
at nt. 2.
14. Although the establishment of test procedures and correlations between
test results at varying mileage accumulation points is a governmental responsi-
bility, requiring industry's aid in this efffortis no more improper than requir-
ing the industry to conduct tests to assist in the determination of whether to
grant a suspension under section 202(b) of the Act. In both cases, industry
as well as the public will benefit from an informed decision. In both cases, the
final determination rests with the Administrator. Therefore, we conclude that
a regulation requiring reasonable testing by manufacturers to assist in the de-
velopment of a production-model test would be proper exercise of the Admini-
strator's rule-making authority under section 301(a).
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15. The final problem with viewing section 301(a) as authorizing the regula-
tion in question is that regulations issued thereunder are not expressly made
enforceable under the terms of the Clean Air Act. The violation of such regu-
lations is not a prohibited act under section 203; thus, no penalties attach under
Title II of the Act. This fact arguably leads to the conclusion that regulations
established under section 30 l(a) were not intended to create enforceable duties,
but are restricted to agency procedure and administrative matters. Since we
find no legislative history to this effect, however, we see no reason to adopt a
restrictive interpretation of 301(a) which is not indicated by its terms. More-
over, the availability of 28 U. S. C. 1337, compels us to reject a restrictive
view of section 301(a). Section 1337 provides,
The district courts shall have original juris diction of any civil ac-
tion or proceedings under any Act of Congress regulating com-
merce or protecting trade and commerce against restraints and
monoplies.
16. The purpose of this statutory provision was explained in N.L.R.B. v.
British Auto Parts, Inc., 266 F. Supp. 368, 374 (C.D. Cal. 1&67) affirmed
405 F. 2d 1182 (9th Cir. 1968):
This statutory provision vests the district courts with jurisdiction
to aid administrative agencies in carrying out their congressional -
ly authorized powers and duties, despite the absence of any express
grant of district court jurisdiction under the agencies' respective
enabling legislation.
As the United States Supreme Court held in Capital Services Inc. v N.L.R.B.,
347 U.S. 501, 74 S. Ct. 699, 702, 98 L. Ed. 887 (1954),
The District Court had jurisdiction of the subject matter, because
this is a 'civil action proceeding1 arising under an Act of Congress
'regulating commerce.' 28 U. S. C. section 1337... In the absence of
a command to the contrary, the power of the District Court to issue
the injunction is clear.
17. The Clean Air> Act is an, "Act of Congress regulating commerce" within
the meaning of 28 U. S.C. 1337. As Judge Thomsen concluded in United States
v. Bishop Processing Company. 287 F. Supp. 624, 632 (D. Md. 1968), "Con-
gress had a rational basis for finding that air pollution affects commerce.
Moreover, the cause of action would arise under the Clean Air Act if manu-
facturers refused to comply with regulations requiring testing for the purpose
of developing an effective production-model test and the Administrator reques-
ted the Attorney General to obtain injunctive relief. Finally, the Clean Air
Act contains no express bar to the jurisdiction of federal district courts over
civil actions to enforce regulations issued pursuant to section 301(a) of the
Act. Capital Services Inc. v. N.L.R.B., supra. Therefore, the equity powers
of district courts are available to enforce regulations compelling automobile
manufacturers to conduct tests to assist the Administrator in developing a
correlation between no or low-mileage emission data and 4, 000 mile emission
data.
18. Even in the absence of a general jurisdictional statute such as 28 U.S. C.
1337, federal district courts wouldappear to be authorized to issue injunctions
to enforce provisions Federal law "in the public interest. Walling v. Brooklyn
Braid Co., 152 F. 2d 938, 940-1, (2d Cir. 1945) holds,
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Though the Fair Labor Standards Act. . . does not expressly provide
for enforcement by injunction, that remedy is available to the Ad-
ministrator. The action taken below was based upon the general
powers of courts of equity to grant injunctions. . . Good administra-
tion of the statute is in the public interest and that will be promoted
by taking steps when necessary to prevent violations either when
they are about to occur or prevent their continuance after they have
begun. The trial court. . . in deciding whether or not to grant an
injunction in this type of case should also consider whether the
injunction is reasonably required as an aid in the administration
of the statute, to the end that the Congressional purpose underlying
its enactment shall not be thwarted.
19. Although we have concluded that manufacturers may be compelled by
regulation to conduct reasonable test programs for the specified purpose, we
make no findings with respect to what constitutes a "reasonable test program"
or whether any particular regulation would be considered reasonable.
§§§§§§§
TITLE: Requiring Manufacturers to Submit Developmental Vehicles for
Testing
DATE: October 30, 1972
MEMORANDUM OF LAW
FACTS
In an August 17, 1972 memorandum., to you, Karl H. Hellman, Staff Assistant,
DECT, pointed out that EPA's assessment of motor vehicle emission control
technology would be aidedif EPA could require manufacturers to provide 1975-
76 prototype vehicles for testing by EPA. Your memorandum of August 14,
1972 requests that we evaluate the authority to make such a requirement.
QUESTION
Does authority exist for EPA to require motor vehicle manufacturers to pro-
vide to EPA for EPA testing 1975-76 prototype developmental vehicles?
ANSWER
There is no authority in the Clean Air Act, either express or implied, which
would empower the Agency to require manufacturers to submit such vehicles for
testing by EPA.
DISCUSSION
1. Sections 202, 206, and 208 of the Clean Air Act contain the information-
gathering authority available to EPA regarding motor vehicles. Sections 206
and 208 specifically limit the gathering of information to matters related to
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compliance by a manufacturer with the Act and implementing regulations.
Since the data involved here relates to an assessment of technology develop-
ment and not compliance with applicable regulations, those sections could not
be invoked.
2. Section 202(a)(4) provides the Administrator broad authority, including the
subpoena power under §307. to obtain information on vehicle emission control
systems for purposes of preparing an annual report to the Congress. The sub-
poena power is also available to the Administrator to obtain information on
emission control technology for purposes of providing it to the National Aca-
demy of Sciences for its investigation and annual report to the Congress on
the same topic (§202(c)). There is no express authorization in either provision
for the Administrator to require manufacturers to submit vehicles for EPA
testing. Section 307(a) of the Act authorizes the Administrator to require "the
production of relevant papers, books, and documents" and oral testimony.
This language does not appear to support a requirement that manufacturers
submit their vehicles for testing by EPA. The clear thrust of the §202 and
§307 provisions is that the Administrator shall be able to obtain information in
the hands of manufacturers or others. This would include test data on proto-
type, developmental vehicles.
3. If the Congress had not provided specific information-gathering authority
in the Administrator to assess the status of technology development, a plausi-
ble argument might be made that implied authority could be found in §301 (a)
of the Act to allow EPA to promulgate regulations reasonably necessary to the
discharge of its responsibilities under §202. Such regulations could conceiv-
ably include a requirement such as the one advanced by Mr. Hellman.
§§§§§§§
TITLE: Certification of Three-Quarter Engines
DATE: August 13, 1971
FACTS
Mack Truck, Inc. produces and sells the following types of diesel engines for
the replacement market:
1) The basic engine, which is a complete engine capable of operation;
2) The "short engine assembly" (3/4 engine), which is the basic engine
less the fuel system;
3) The "short block assembly" (1/4 engine), which is the engine block only,
and does not include fuel system, electrical equipment, or exhaust
manifolds.
Mack contends that the 1/4 and 3/4 engine assemblies are not motor vehicle
engines subject to the Clean Air Act, and therefore need not be covered by
certification of conformity with diesel smoke emission standards. OAP's Di-
vision of Motor Vehicle Pollution Control (DMVPC) agrees that the 1/4 block
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need not be certified, but feels that the 3/4 engine should be considered an
engine subject to the Act. DMVPC's position is that since the fuel system for
the 3/4 engine is an optional item readily and typically installed by the pur-
chaser, the 3/4 engine is for practical, regulatory purposes a motor vehicle
engine at the time Mack sells it. DMVPC argues that allowing 3/4 engines to
be sold without certification could encourage engine manufacturers to empha-
size sales of such engines in order to circumvent EPA's regulations, thereby
subverting the intent of sections 202 and 203 of the Act.
QUESTION
May EPA require certification of diesel engines which are not capable of pro-
pelling a motor vehicle?
ANSWER
The Clean Air Act provides EPA limited discretion to determine what engines
are motor vehicle engines subject to regulation under the Clean Air Act. Speci-
fically, engine configurations which are not capable of operating to propel a
motor vehicle but which the purchaser may readily place in that status by the
addition of optional components may be subjected to regulation in cases where
the alternative is to acquiesce in actual or threatened circumvention of the
purposes of the Act.
DISCUSSION
In our memorandum of April 27, 1971, we considered the question of whether
"short blocks" (1/4 engines) are motor vehicle engines within the meaning of
the Clean Air Act, and concluded that they clearly are not, and that they should
be treated as any other major component part in the replacement market. In
the memorandum we stated that the Act's definition of motor vehicle," i.e.,
"any self-propelled vehicle designed for transporting persons or property on a
street or highway," implicitly defines "motor vehicle engine" to mean any en-
gine which is capable of propelling a motor vehicle.
The facts in this case have caused us to consider whether that definition should
be considered absolute, or whether some discretion is left in the Agency to
define "motor vehicle engine." Looking again at the relevant provisions of the
Act, we conclude that .the Congress was concerned basically with engines cap-
able of operation. However, we cannot think that the Congress intended that
manufacturers who build what in almost every respect is a complete engine
should be allowed to escape Federal emission control regulation by the simple
expedient of leaving unattached one readily added functional component, espec-
ially when the engines involved are available alternatives in the replacement
market to complete engines which must conform to standards. Absent express
language indicating congressional intent to create such a loophole, we believe
that the administering agency has the discretion to see that it does not exist.
The implied definition of "motor vehicle engine" permits this flexibility in the
Agency.
DMVPC has analyzed the circumstances surrounding Mack's intended marketing
of the 3/4 engine and has concluded that sound regulatory practice demands that
these engines be considered subject to the Act. We believe that the Act affords
the Agency sufficient discretion to determine that an engine of this configura-
tion should be regulated.
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HEAVY DUTY ENGINES
TITLE: Standard Setting for "Low-Emission Vehicles" with Heavy-Duty
Engines - Section 212 of the Clean Air Act
DATE: September 24, 1971
FACTS
On June 29, 1971, regulations were proposed establishing procedures by which
the Administrator of the Environmental Protection Agency will determine whe-
ther an applicant vehicle qualifies as a "low-emission vehicle" under Section
212 of the Clean Air Act. These regulations, however, were applicable only to
light-duty motor vehicles. The notice of proposed rule making (36 F.R. 12240)
stated, "Regulations relatingto vehicles which the applicant seeks to substitute
for heavy-duty motor vehicles will be proposed as soon as practicable. "
A draft briefing memorandum prepared by the Bureau of Mobile Source Pol-
lution Control proposes a system for establishing such heavy-duty vehicle reg-
ulations for the purpose of section 212 of the Act. The proposal is that --
1) for the purpose of section 212, low-emission heavy-duty vehicles
should be defined in relation to reductions from the proposed 1973
heavy-duty diesel engine emissions standards under section 202;
2) 97%reductions from the proposed 1973 standards should be required
for CO or HC or 70% reduction for NO in order for a heavy-duty
vehicle to qualify as a low-emission vehicle; and
3) no reduction of smoke emissions should qualify a heavy-duty vehicle
as a low-emission vehicle for the purpose of section 212 of the Act.
ISSUES
1. In establishing regulations defining a "low-emission vehicle" in the context
of heavy-duty engines for the purpose of section 212 of the Clean Air Act, is
the Administrator authorized to set significant reduction levels only for gase-
ous pollutants and require that smoke emissions not exceed the standard? Or
must some level of significant reduction be established for smoke ?
2. Is the Administrator authorized to set different reduction levels for dif-
ferent pollutants or must the same percentage reduction apply to each pollutant
in determining what constitutes a "significant" reduction within the meaning of
section 212(a)(4)(A)?
3. Is the Administrator authorized to establish section 202 heavy-duty diesel
emission standards as the sole baseline for determining a "significant1 reduc-
tion under section 212(a)(4)(A)? Or must he also take section 202 heavy-duty
gasoline emission standards into consideration ?
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ANSWERS
1. Although the language of section 212 would permit a substantial argument
to the contrary, the Administrator is authorized to define significant reductions
solely in terms of gaseous pollutant emissions.
2. The Administrator is authorized to set different reduction levels for dif-
ferent pollutants in deter mining what constitutes a "significant" reduction under
section 212(a)(4)(A).
3. The Administrator is authorized to establish section 202 heavy-duty diesel
emission standards as the sole baseline for determining a "significant" reduc-
tion under section 212(a)(4)(A).
DISCUSSION
la. Section 212(a)(4) of the Clean Air Act defines a "low-emission vehicle"
for the purpose of that section as "any motor vehicle which --
(A) emits any air pollution in amounts significantly below new motor
vehicle standards applicable under section 202 at the time of procure-
ment 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.
b. Pursuant to section 202 of the Act, regulations are being prepared to regu-
late emissions from heavy-duty gasoline engines and heavy-duty diesel engines.
Since gasoline engines do not emit smoke, no standard is anticipated limiting
smoke emissions from gasoline engines. However, a limitation on smoke
emissions is planned for diesel engines.
c. The Bureau of Mobile Source Pollution Control suggests the use of pro-
posed diesel emission standards under section 202 (except the standard appli-
cable to smoke) as the baseline from which to calculate a "significant" reduc-
tion for the purposes of section 212{a)(4)(A). However, it is clear that smoke
is an "air pollutant" within the meaning of section 202(a) (and 212(a)(4)), since
it may adversely affect "the public health or welfare." Moreover, standards
limiting the emission of smoke will be applicable under section 202 "at the time
of procurement" of 1973 model low-emission vehicles, if the BMSPC's pro-
pos'al is adopted. Since section 212(a)(4)(A) refers to "any air pollutant , it
is arguable that some level of reduction of smoke emissions must be considered
sufficiently significant (even if this means a 100% reduction) to qualify an appli-
cant vehicle as a "low-emission vehicle" within the meaning of section 212(a)
(4).
d. In our view, however, the Administrator is authorized to define "low-
emission vehicle" by regulation to require a significant reduction in emission
of any gaseous pollutant and, thereby, exclude smoke reduction as a basis for
qualifying for certification as a "low-emission vehicle." We reach this con-
clusion for the following reasons:
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e. First, S. 3072, the Senate bill which was the original source of section
212 of the Clean Air Act, defined as "low-emission vehicle" as "any motor
vehicle which produces significantly less pollution than the class of model of
vehicles for which the Board may certify it as a suitable substitute." (section
2(4)). This section granted the Secretary [now Administrator] wide discretion
to determine which pollutants had to be reduced and by how much in order for
a vehicle to be considered a "low-emission vehicle". The Senate version of
the "Clean Air Amendments of 1970," S. 4358, contained a provision identical
to S. 3072.±/ It is true that the conferees on H.R. 17255 modified this pro-
vision to specify that emission standards under section 202 should form the
baseline from which to determine significant reduction of emissions. However,
there is no indication in the legislative history that the Congress intended to
limit administrative discretion to determine how much reduction is significant
and what pollutant(s) must be reduced for a vehicle to qualify as a "low-emission
vehicle".
f. Second, the language of a statute, if reasonably open to alternative construc-
tions, should not be read so as to frustrate the ultimate purpose of the Con-
gress. In this case, section 202 may be read in two ways. It may be con-
strued to mean that some reduction in any air pollutant to which a section 202
emission standard applies must qualify the vehicle as a low-emission vehicle.
Alternatively, it may be construed to mean that a significant reduction in any
air pollutant designated by the Administrator would entitle the vehicle to con-
sideration as a low-emission vehicle. The latter reading is clearly more
consistent with the intent of Congress. An essential purpose of section 212
was to provide financial incentives to assist in developing technology which
would reduce major air pollution problems from new motor vehicles.^/ The
major health problems relating to air pollution from new motor vehicles arise
from emission of carbon monoxide, hydrocarbons, and oxides of nitrogen, as
Congress itself recognized by adopting section 202(b)(l) of the Act. 3/ While
smoke emissions are aesthetically offensive and contribute to participate con-
centrations in the ambient air, they do not pose a health hazard. Moreover,
the technology already exists to eliminate smoke emissions from diesel en-
gines.
g. Thus, if reduction of smoke emissions would qualify a vehicle as a "low-
emission vehicle," section 212 would not have the intended effect of stimulating
new technological development. Furthermore, section 212 provides no mec-
hanism by which the Administrator can give preference to one"low-emission
vehicle" over another. Therefore, a non-smoking diesel is almost certain to
be procured when in competition with an unconventional engine which emits low
oxides of nitrogen, since the latter is likely to require greater maintenance and
±1 Congressional Record, September 22, 1970, S. 16229-30.
2/ Congressional Record, September 22, 1970, S. 16231 (Sen. Magnuson).
3/ The Senate Commerce Committee's Report on S. 3072, the forerunner of
section 212, emphasized reductions in carbon monoxide, hydrocarbons,
oxides of nitrogen, lead, and oxidants. Report No. 91-745, March 20,
1970, pp. 3-4.
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more expensive fuels than the conventional diesel. _4/ Knowing that such'com-
petition is unlikely to produce victory, potential developers of unconventional
engines are unlikely to invest great amounts of time and money to compete for
the guaranteed section 212 market. This result would be exactly contrary to
the expressed intent of Congress.
h. Thus, although the language of section 212(a)(4) would permit a substantial
argument to the contrary, we conclude that section 212 authorizes the Admini-
strator to establish section 212 emission standards without reference to re-
duction in smoke emissions if he deems it necessary to do so to carry out the
will of Congress and the ultimate purpose of section 212.
2a. There is nothing in the language of the statute or the legislative history
which specifies what constitutes a significant reduction for the purpose of
section 212(a)(4)(A). Consequently, such a determination is left to the judgment
of the Administrator. Moreover, nothing in the language or history of section
212 limits the exercise of administrative judgment so that significant reduction
must be the same percentage from allowable emissions for every air pollutant.
b. The differences in the percentage of reduction which is significant from one
pollutant to another may not be arbitrary or capricious. But so long as they
are based on identifiable and rational consideration, such as the difficulty of
controlling a pollutant, the seriousness of harm which may result from its
emission, or the extent to which emissions of such pollutant may be controlled
from stationary sources, different percentage reductions may be prescribed
for different air pollutants.
3a. The answer to the third question turns upon construction of the word "type"
in section 212(a)(4)(A) of the Act. On the one hand, the word may refer to the
distinction between heavy-duty diesels and gasoline engines. If this is the case,
then an applicant heavy-duty diesel engine would have to meet all heavy-duty
diesel emission standards under section 202 and emit significantly less than
such standards with respect to at least one pollutant. Similarly, an applicable
heavy-duty gasoline engine would have to meet all heavy-duty gasoline engine
standards under section 202 and emit significantly less than such standards
with respect to at least one pollutant. These requirements wouldapply regard-
less of the type of vehicle for which the applicant vehicle is proposed to be
substituted.
b. On the other hand, the word "type" may be construed to refer to the dis-
tinction between light-duty vehicles and heavy-duty vehicles (i. e., those using
heavy-duty engines). In this case, a set of standards under section 202 would
have to be designated (for the purpose of section 212) as the baseline for de-
termining a significant reduction of any air pollutant from the allowable emis-
sions from heavy-duty vehicles. This baseline along with a statement of what
constitutes a significant reduction for each pollutant would apply for the pur-
poses of section 212(i)(4) regardless of whether the applicant vehicle seeks to
be substituted for a gasoline engine or diesel engine-powered vehicle.
4/ See section 212(f)(l) and (2) of the Clean Air Act.
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c. The first construction must be rejected. As indicated previously, section
212 was designed, in part, to stimulate and encourage the development of un-
conventional propulsion systems, such as the turbine engine, the Waenkel
engine, and the Rankin engine. Since no emission standards apply to such
systems under section 202, no vehicles using such systems could be found to
be "low-emission vehicles" under section 212 if the first construction were
adopted. Therefore, the latter construction of the word "type" must be adopted.
d. However, this conclusion leaves open the question of what standards under
section 202 may be designated as the baseline for heavy-duty vehicles for the
purpose of section 212. The proposed briefing memo suggests that proposed
1973 emission standards applicable to new diesels (except for the smoke stan-
dard) should constitute the baseline. To rely on such standards as the baseline
would effectively prevent ordinary diesel vehicles from being substituted for
gasoline-powered heavy-duty vehicles. Preventing diesels from substituting
for gasoline engines would frustrate congressional intent in one respect, i.e.,
the desire to have government vehicles emit as little as possible. On the other
hand, if diesel engines can be produced by 1973 which significantly reduce the
emission of one pollutant from the 1973 standards while meeting the section
202 diesel standards with respect to all other pollutants,_5/ then Congress'
dual purposes will have been served--!) encouraging development of new
technology to reduce emissions, and 2) recognizing the 'obligation of Govern-
ment. ..to disrupt the environment as little as possible when conducting its
own activities. "6/
e. Moreover, to rely on section 202 heavy-duty gasoline-engine standards
as the baseline would have the unintended effect of discouraging development
of new technology. This is true, because a diesel engine emits significantly
less carbon monoxide and hydrocarbon than a gasoline engine and could be
declared a "low-emission vehicle" without any modification or improvement.
Potential developers of less conventional engines might be discouraged from
applying, if an ordinary diesel could qualify. Since the diesel would have more
normal fuel use, reliability, and durability characteristics than such uncon-
ventional engines, it would be accorded preference over less conventional
completing vehicles by the Low-Emission Vehicle Certification Board.
f. For these reasons, the Administrator if authorized to use the proposed
section 202 standards applicable to 1973 diesel engines as the baseline for all
heavy-duty vehicles seeking certification under section 212 of the Act.
5/ We are informed by Tom Edgar, Ed Reich, and Graham Hagey of BMSPC
that there is a reasonably high probability that this can be accomplished.
£/ Congressional Record, September 22, 1970.
§§§§§§§
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TITLE: Information Requirements - Heavy-Duty Engine Manufacturers
(Section 208)
DATE: March 20, 1972
MEMORANDUM OF LAW
FACTS
Manufacturers of heavy duty motor vehicle engines must obtain a certificate of
conformity with applicable EPA standards before these engines can be sold.
Many of these engines are purchased by heavy duty vehicle manufacturers who
install them in their vehicles. If the vehicle manufacturer changes the configu-
ration of the engine as certified, he must obtain certification of the modified
engine. At present, MSPC's ability to identify all vehicle manufacturers
who should be obtaining such certification is limited. A note of March 6, 1972,
from Jan Lane of the Mobile Source Pollution Control Division, points out
that the only accurate source of a list of heavy duty vehicle manufacturers
is the engine manufacturers who sell them engines.
QUESTION
May EPA require manufacturers of heavy duty engines to identify the heavy duty
vehicle manufacturer to whom their engines are sold?
ANSWER
The submission of this information may not be required, since it is not related
to the engine manufacturer's certification or his compliance with applicable
regulations.
DISCUSSION
1. The information requirement in question could only be imposed if authorized
under §208 of the Actor as a reasonable condition of certification under 40 CFR
85.55.
2. The relevant language of §208 provides that "every manufacturer shall es-
tablish and maintain such records, make such reports, and provide such infor-
mation as the Administrator may reasonably require to enable him to determine
whether such manufacturer has acted or is acting in compliance with this part
and regulations thereunder... ". We can establish no connection between the
purchaser list sought and any determination as to an engine manufacturer's
compliance. The list would only provide a means to identify vehicle manu-
facturers utilizing the engines, so that MSPC could determine their compli-
ance.
3. Under §85. 55(a)(2) of the regulations, the Administrator may impose "...
such terms as he may deem necessary to assure that any new motor [engine]
covered by the certificate will meet the requirements of these regulations re-
lating to durability and performance. These terms must be reasonably related
to matters which the engine manufacturer has some ability to control. Pre-
sumably, there are no terms which EPA could reasonably impose upon the
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engine manufacturer which could provide assurance that the certified engines
would meet durability and performance requirements once in the hands of a
vehicle manufacturer who may modify them in some fashion. Therefore, the
imposition of this condition upon a certificate is not an available alternative.
4. It is EPA's responsibility to identify vehicle manufacturers and to insure
that they are acting in compliance with applicable regulations. Obtaining the
cooperation of engine manufacturers, governmental agencies, and trade asso-
ciations appears to be the only method available to MSPC.
§§§§§§§
TITLE: Warranties and Maintenance Under Section 207
DATE: April 10, 1972
MEMORANDUM OF LAW
FACTS
The warranty instructions which manufacturers of motor vehicles have pro-
vided to the purchasers of 1972 model year vehicles raise several questions
under §207(a) and (c) of the Clean Air Act. Also, questions have arisen con-
cerning the requirement of EPA regulations that manufacturers begin in 1973
providing a copy of their maintenance instructions to EPA for a determination
as to whether such instructions are "reasonable and necessary to assure the
proper functioning of the vehicle or engine's emission control system".
QUESTION #1
Are §207(a) and (e)(3) self-executing and applicable to 1972 model year motor
vehicles ?
ANSWER #1
The requirements of both sections are directly imposed by the Congress and do
not require agency action to put them into effect. The Act expressly provides
that they shall be in effect with respect to model years beginning more than 60
days after its enactment, i.e., beginning with the 1972 model year.
QUESTION #2
May the motor vehicles manufacturers condition their §207 (a) warranties on
"proper use and maintenance" or some equivalent requirement?
ANSWER #2
No. The conditioning of the §207 (a) warranties on "proper use and maintenance"
is inconsistent with the legislative purpose.
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QUESTION #3
Does Ford Motor Company's provision conditioning its §207(a) warranty upon a
determination by the Administrator of EPA that emission system parts or work-
manship is defective comply with requirements of the Act?
ANSWER #3
No. Such a determination is not an express requirement of §207(a) and may
not be imposed unilaterally by a manufacturer.
QUESTION #4
Does §207(a) permit the motor vehicle manufacturer to disclaim responsibility
for consequential damages which the automobile owner may incur as a result of
a defect-related malfunction which causes the vehicle to exceed applicable stan-
dards ?
ANSWER #4
Section 207(a) precludes the automobile manufacturer from disclaiming respon-
sibility for consequential damages to the vehicle owner which are directly and
proximately caused by the failure of the vehicle to comply with applicable emis-
sion standards.
QUESTION #5
What action can EPA take under the Clean Air Act if maintenance instructions
provided to ultimate purchasers pursuant to §207(c)(3) are determined by EPA
to be unreasonable or unnecessary?
ANSWER #5
Nothing precludes the EPA from requesting that a manufacturer revise his
maintenance instructions, but if this fails to obtain acceptable results, EPA may
seek a court order pursuant to §203(a)(4)(B) of the Act to compel compliance
with §207(c)(3).
QUESTION #6
What is the scope of EPA's inquiry to determine whether or not a manufacturer's
maintenance instructions are "necessary"?
ANSWER #6
EPA's primary responsibility is to insure that the manufacturer poses no un-
necessary requirements, and EPA may further require that instructions on
maintenance which it determines is necessary to assure the proper functioning
of the emission controls be provided to the purchaser.
QUESTION #7
Does the "properly maintained and used" wording of §207(c){l) have the same
meaning as the "maintained and operated in accordance with instructions" wording
of §207(b)(2)(A)?
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ANSWER #7
It appears that the Congress intended both phrases to refer to the "reasonable
and necessary" maintenance instructions under §207(c)(3), but EPA is not re-
quired to interpret §207(c)(l) as requiring proper maintenance by the owner in
all respects.
QUESTION #8
If a manufacturer does not provide maintenance instructions to the vehicle pur-
chaser, is the purchaser required to show any proof of use or maintenance to
obtain recovery under the §207(b) warranty and the §207(c) recall?
ANSWER #8
Since §207(c)(3) allows the manufacturer to protect himself against unreasonable
use and maintenance by the vehicle purchaser, if he does not avail himself of
this protection by providing the instructions he must be viewed as having waived
and right to demand that the maintenance be performed and documented.
DISCUSSION
NOTE: For purposes of clarity, the topics in this section are numbered to
coincide with the corresponding questions and answers above.
1. As we have orally advised in the past, §§207(a) and 207(c)(3) of the Act are
self-executing. There is no suggestion in the statutory language or in the legis-
lative history that any action by EPA is required to place them in effect. Each
section is prefaced by the language, "effective with respect to vehicles and en-
gines manufactured in model years beginning more than 60 days after the date
of enactment of the Clean Air Amendments of 1970. ..." The model year refer-
red to is unquestionably 1972.
One manufacturer asserts that EPA's delay in promulgating a definition of the
term "useful life" led them to delay including a §207(a) warranty for 1972, since
that term is included in that warranty. This assertion does not bear up well in
light of the facts that, 1) "useful life" for light duty vehicles is defined in §202
(d)(l) of the Act and could not be changed by EPA, and 2) this was clearly set
forth in EPA's proposed regulation of May 11, 1971 (36 F.R. 8698).
Regarding the 207(c)(3) requirement, it may be true that EPA personnel led
manufacturers to believe that the requirement would not apply until 1973. How-
ever, the regulations on this subject only deferred the model year applicability
of the submission of proposed maintenance instructions to EPA for review, not
the Act's required provision of the instructions to the vehicle purchaser.
2. Questions 2, 3, and 4 raise this broad issue: "When the Congress requires
a manufacturer to warrant automobiles to purchasers in a specified manner, mav
the manufacturer impose conditions on this warranty, and if so to what extent ? '
It is our view that a manufacturer may impose conditions upon a statutorily re-
quired warranty, so long as the conditions are not inconsistent with the legis-
lative purpose, as expressed in the provisions of the statute and in the legislative
history. By "inconsistent", we mean that the conditions may not interfere with
the result which the Congress intended to accomplish.
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In §207, Congress imposed these three warranties regarding motor vehicles and
motor vehicle engines:
(a) Section 207(a)(l): the vehicle or engine must be warranted to be
designed, built, and equipped so as to conform at the time of sale
with applicable regulations...." [emphasis added],
(b) Section 207(a)(2): the vehicle or engine must be warranted to be
"free from defects in materials and workmanship which cause such
vehicle or engine to fail to conform with applicable regulations for
its useful life. ..."
(c) Section 207(b): when the Administrator so prescribes by regu-
lation, the vehicle or engine must be warranted to remain in compli-
ance with applicable regulations for its useful life if maintained and
operated in accordance with instructions provided by the manufac-
turer prescribing maintenance necessary to "assure the proper func-
tioning of emission control devices and systems".
By its terms, the §207(a)(l) warranty relates only to actions taken prior to
sale, and maintenance and use occurring after the sale are not relevant. Con-
sequently, a condition requiring certain maintenance and use is inconsistent
with the Act and is not permissible.
Restated, the §207(a)(2) warranty says "The parts and labor that went into this
vehicle or engine were not flawed or incomplete in any way that would prevent
compliance with applicable emission standards for five years or 50, 000 miles".
This is not a guarantee that the vehicle will conform to the standards for its
useful life; that guarantee is covered by the performance warranty provided
for in §207(b), which is statutorily conditioned upon the owner's maintenance
per the §207(c)(3) instructions. Neither does 207(a){2) require a guarantee that
parts will function for 50, 000 miles. If the manufacturer wishes to utilize parts
that are not designed to last for 50, 000 miles, whether the parts are spark
plugs, or emission control devices or valves, he is free to do so insofar as
his 207(a)(2) warranty is concerned.
A vehicle owner claiming under the 207(a)(2) warranty has the burden of proving
that defect in the part or its installation caused his vehicle to fail to conform
to the standards. He will probably best be able to sustain that burden if he can
document, by showing proof of maintenance performed, that he did not abuse
the part involved. Absent such documentation, the manufacturer will undoubt-
edly claim that lack of necessary maintenance and not a defect caused the part
to fail. Therefore, the question of maintenance is relevant to recovery under
the 207(a)(2) warranty.
It does not follow, however, that a manufacturer may expressly condition this
warranty on proper use and maintenance. Because Congress conditioned the
207(b) warranty on the owner's carrying out maintenance but did include this
condition in207(a)(2), the implication is that it did not intend the latter to be so
limited. Moreover, the condition in question may do violence to the legislative
purpose, for if a part fails because of a defect at 20, 000 miles and the owner
did not obtain prescribed maintenance to the part at 12, 000 miles, the owner's
warranty claim is automatically barred even though the lack of maintenance did
cause the failure. Accordingly, we think that such a condition is inconsistent
with the Act and may not be imposed by a manufacturer.
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3. Ford has conditioned its 207(a)(2) warranty upon a finding of a defect by the
Administrator. This condition would impose upon the Administrator a fact-
finding responsibility which is in no way suggested by the language of the sec-
tion or its legislative history. We think this burden is one which may only be
imposed by Congress, the Administrator himself or, conceivably, the courts.
It is not consistent with the Act and therefore must be deleted.
4. In the normal contractual situation, a manufacturer may include in a war-
ranty against defects in parts a proviso protecting him from liability for con-
sequential damages suffered by the purchaser as a result of part failure. If
he does not do so, the manufacturer may be liable for any damages to the pur-
chaser which are the natural and proximate result of the breach of warranty,
and which may reasonably be considered as within the contemplation of the
parties at the time of the contract. !_/ Where the warranty is imposed upon the
manufacturer and purchaser by statute, however, it is the damages contem-
plated by the Congress which are relevant. Here, the Congress was concerned
with defects which would prevent a vehicle from remaining in compliance with
applicable Federal emission standards. It seems clear that the Congress must
have contemplated that the owner whose vehicle fails to conform to applicable
standards because of part or workmanship defect might be penalized in a State
motor vehicle emission testing program. Such a penalty is directly related to
the warranty, and we conclude that an attempt by the manufacturer to exclude
liability for the penalty is not consistent with the congressional purpose in
§207(a)(2). Other consequential damages cannot, presumably, be directly re-
lated to the emission control purpose of the warranty, and the manufacturer
may protect himself with respect to them without undercutting the legislative
scheme.
5. As we informally advised previously, §207(c)(3) imposes aburden uponEPA
to judge whether the maintenance instructions which the manufacturer is re-
quired to supply to the vehicle purchaser are "reasonable and necessary to
assure the proper functioning of emission control devices and systems". Our
conclusion is based upon our assessment of the legislative intent behind the
section. Congress imposed a condition regarding maintenance to insure that
manufacturers would not be required to honor performance warranties for ve-
hicles which had not been given adequate care by owners. Section 207(c)(3)
adds to this scheme the requirement that maintenance instructions be provided
to purchasers so that they would be aware of what maintenanc e they must obtain
to protect their warranty rights. Because this approach, without more, would
enable the manufacturers to impose unreasonably stringent requirements on
purchasers to protect their own interests, Congress stated that the instructions
should prescribe "reasonable and necessary" maintenance only. The Senate
Committee on Public Works, which originated the relevant provision (without
the "reasonable and necessary" language), said in its report that the instruc-
tions would have to be "reasonable and uncomplicated" and "would have to be
approved by the [Administrator]" (Sen. Kept. No. 91-1196, 91st Cong., 2d
Sess., p. 30). While an equivalent statement does not appear in the Conference
Report, the conferees adopted the Senate bill's approach and inserted the terms
±' C.J. S. Sales §374 (1965).
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"reasonable" and "necessary" into the section itself. This action evidences
adoption of the Senate's scheme. Accordingly, we think the Congress intended
that the Agency evaluate the maintenance instructions and take action under the
authority in §203{a)(4)(B) when EPA has substantial disagreement with a manu-
facturer's determination of what maintenance is reasonable and necessary.
6. As discussed in paragraph 5, above, a chief purpose of the maintenance
instruction requirement in §207(c)(3) is to insure that the manufacturer imposes
no unreasonable or unnecessary requiremens. Question #6, however, raises
the issue of whether EPA can also, under this section, require a manufacturer
to include instructions on maintenance which EPA, presumably through certi-
fication testing, has determined is necessary "to assure the proper functioning
of emission control devices and systems", although the manufacturer does not
agree that this is the case. This issue has also been raised by MSPC in con-
nection with its experience with recurrent valve failure of one manufacturer's
durability vehicles.
While there is no indication in the legislative history of §207(c)(3) that the Con-
gress was considering the problem of inadequate maintenance instructions when
it adopted the section, the language of the section appears to cover this situation.
Certainly, the "proper functioning" of emission controls cannot be assured if
owners do not obtain all necessary maintenance, and the instructions provided
by the manufacturers pursuant to this section are the logical means of adequa-
tely instructing the owners. Where MSPC identifies certain maintenance to
durability vehicles as being essential to the certification of those vehicles, it
follows that production vehicles covered by that certificate should receive the
same maintenance to provide adequate assurance that they will comply with the
standards. We are compelled to say, therefore, that §207(c)(3) provides an
adequate basis for EPA to require manufacturers to include certain necessary
maintenance instructions.
7. It appears that the "properly maintained and used" language of §207(c)(l)
and the maintained and operated in accordance with instructions" wording of
§207(b)(2)(A) both refer to the maintenance described in §207(c)(3). The Con-
ference Report indicates that the conferees viewed the two phrases as having
the same meaning, since "proper operation and maintenance [emphasis added]
is usedin referring to the performance warranty and "properly maintained and
used" [emphasis added] is employed in discussing the recall. t&. R. Rept. No.
91-1783, 91st Cong., 2dSess., p. 51). As we have pointed out above, the
Congress' view was that the maintenance instructions would set forth the proper
maintenance, as reviewed and concurred in by EPA.
This does not mean that for a vehicle to qualify for inclusion in a recall test
fleet under §207(c)(l) the owner must have been maintained in accordance with
§207(c)(3) instructions in all respects. AsNSPC has pointed out, certain main-
tenance must be performed at a given time or permanent adverse effects on
emission control may reasonably be expected. On the other hand, much of the
maintenance prescribed in maintenance instructions is non-critical; if it is
performed just prior to emission testing, any adverse effect on emissions that
its prior nonperformance may have created are remedied. Therefore, if MSPC
or its contractor verifies that a vehicle has received the critical §207(c)(3)
maintenance by the owner and then performs the noncritical §207(c)(3) mainte-
nance prior to testing, that vehicle may be considered to have received the
"proper" maintenance contemplated by §207(c)(l). This method adequately pro-
tects the manufacturer while enabling EPA to effectuate the purpose of §207(c)(l),
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which is to provide a program to verify in the field that the manufacturer builds
production vehicles capable of performing the same as the certified prototype
vehicles which represent them. Information which MSPC has accumulated
shows that disqualifying vehicles from the test fleet because the owners had not
obtained all the maintenance prescribed by the manufacturer at the time pre-
scribed would so restrict the eligible vehicles that a recall testing program
would be impracticable.
With respect to any maintenance included in the instructions which EPA con-
siders unreasonable or unnecessary, EPA should be on record as opposing it;
this would provide a basis for excluding it from consideration under a recall
testing program. This exclusion could, of course, be an issue in any public
hearing requested by a manufacturer who is ordered to recall and repair vehicles.
§§§§§§§
TITLE: Approval of Maintenance Instructions as Prerequisite to Sale
DATE: July 13, 1972
MEMORANDUM OF LAW
FACTS
In a July 5, 1972 letter, Fred W. Bowditch, Director, Automotive Emission
Control, General Motors Corporation, asked fora written interpretation of Sub-
part M of the EPA Motor Vehicle Regulations which governs the approval of
maintenance instructions. He states that the request is based upon an indication
that MSPC interprets those regulations as "requiring approval of maintenance
instructions prior to first sale. "
QUESTION
Does the Clean Air Act or EPA regulations require that a motor vehicle manu-
facturer obtain approval of maintenance instructions, required by §207(c) to be
given to the ultimate purchaser of the vehicle, before he can sell any of the
vehicles covered by those instructions ?
ANSWER
No. Failure or refusal to comply with the maintenance instructions require-
ments of §207(c) is prohibited by §203(a)(4)(B) of the Act, but there is no ex-
press prohibition against selling a vehicle prior to such compliance, and we
conclude that such a prohibition has not been and may not be imposed by regu-,
lation.
DISCUSSION
1. Section 207(c)(3) of the Clean Air Act requires that each manufacturer "...
furnish with each new motor vehicle or new motor vehicle engine such written
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instructions for the maintenance and use of the vehicle or engine by the ulti-
mate purchaser as may be reasonable and necessary to assure the proper
functioning of emission control devices and systems. " Noncompliance with this
requirement is prohibited by §203(a)(4)(B) of the Act as follows:
"For any manufacturer of a new motor vehicle or new motor vehicle
engine subject to standards prescribed under §202 (B) to fail to refuse
to comply with the requirements of §207(c). — "
Notably, the quoted provision contains no reference to the sale of the vehicle or
engine. In contrast, another portion of the same section, 203(a)(4)(A), ex-
pressly prohibits sale or lease by a manufacturer unless he has complied with
certain provisions of the law. If Congress had wished to impose the prohibition
on sales with respect to compliance with §207(c), it clearly could have done so.
We think that Congressional emission of the prohibition bars imposition of any
regulatory requirement that EPA approval of instructions be a prerequisite to
sales.
2. The current regulations in Subpart M are consistent with this conclusion.
Section 85. 161 of that subpart requires that the manufacturers submit proposed
maintenance instructions to the Administrator at specified times, but it does
not either expressly or impliedly provide that the manufacturer may not sell
vehicles until approval is given by the Administrator. The regulations are de-
signed, however, to enable the Administrator to receive the instructions in
time to disapprove any objectionable portions prior to the sale of vehicles to
ultimate purchasers, so that purchasers may have the proper instructions at
the time of purchase.
3. The Agency's course of action in the case of a failure or refusal to comply
with the requirements of §207(c)(3) regarding maintenance instructions is, as-
suming the manufacturer refuses to conform the instructions to EPA's directions,
to institute a suit under §204 of the Act to compel the manufacturer to supply
to the ultimate purchaser maintenance instructions approved by the Admini-
strator. Civil penalties under §205 are also available and may be sought in
appropriate cases.
§§§§§§§
TITLE: Section 207 of the Clean Air Act and Related Provisions
DATE: September 20, 1973
INTRODUCTION
By memorandum dated November 1, 1972, the Air Quality and Radiation Di-
vision has asked the Mobile Source Enforcement Division to provide a legal
discussion of the relationship between the two warranty programs authorized
by Sections 207(a) and 207(b) of the Clean Air Act, recall under §207(c), cer-
tification under §206, and the prohibition against tampering contained in §203
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Briefly stated, the conclusion is that these provisions can be divided into two
categories, one providing for conformity of automobiles to design standards
and the other for conformity of automobiles to performance standards.
Section 206, 203(a)(3), and 207(a) fall in the first category. Section 206(a)
when read with §203(a)(l) gives EPA power to enforce through civil penalties
conformity of the construction of certified production automobiles to the same
design standards as the certified prototype. Section 207(a) gives the purchaser
a similar remedy by forcing the manufacturer to warrant to him that his auto-
mobile is "designed, built, and equipped" in conformity with emissions control
regulations, and that is free from defects in materials or workmanship that
would cause it to cease to so conform. Finally, Section 203(a)(3) extends di-
rect government regulations to events after the automobile leaves the manufac-
turer's control by prohibiting any tampering with any part of the emissions con-
trol system. It is viewed that the programs under them should cover essentially
the same elements of vehicle design.
By contrast, Sections 207(b) and 207(c) were meant to cover all vehicles or
categories of vehicles that failed to meet emissions standards^/ as measured
by an emissions test, whether or not the failure was related to any detectable
difference in construction or design. The only differences between these two
sections are the testing method and the effective date. Section 207(c) was meant
to authorize recall of a whole class of vehicles whenever a test of a sample
showed that the class as a whole most likely did not meet standards, while
§207(b) was drafted in the recognition that the means to test each car in such
a class for its individual emission levels in a acceptably short period of time
did not yet exist, and provided for a manufacturer's warranty of compliance
with standards as measured by such a test that would take effect only after the
test had been developed and put into effect.
DISCUSSION
1. Certification and Tampering
Two of the provisions at issue here, certification and the prohibition on tam-
pering, were originally inserted into the Clean Air Act by the Motor Vehicle
Air Pollution Control Act of 1965.
The form in which the certification provision was included in that statute makes
clear it was meant to establish a design standard. Section 202, 79 Stat. 992-93,
required the Secretary of HEW to set emission standards for automobiles,
while Section 203(a)(l) forbade the sale of any new motor vehicle that did not
conform to the regulations under Section 202. The language of the statute thus
established a performance standard for each car sold, attended with legal pen-
alties if it was not met. However, the manufacturer could if it wished (for
certification was not compulsory) avoid this danger by having a prototype ve-
hicle tested and certified under §206(a). Section 206(b) provided that once this
had been done:
This memo will not discuss whether the "applicable regulations" under
§202 which when violated may trigger §§207(a) or 207(b) warranties or re-
call under §207(c) must be the same as the certification standards.
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Any new motor vehicle... sold by such manufacturer which is in
all material respects substantially the same construction as the
test vehicle . . . for which a certificate has been issued . . .
shall for the purposes of this Act be deemed to be in conformity
with the regulations issued under section 202 of this title [and
the manufacturer accordingly will not be liable to penalties under
§203(a)(l) even if the vehicle does not in fact meet these emission
standards. ]
This relationship between these two parts of the statute suggests strongly that
even though the word "construction" is used to describe when a car is covered
by a certificate, what is really meant is that the production cars, in order to
be covered, must be built to the same design as was set forth for the prototype
in the application for certification. The purpose of the certification program
was to give the manufacturer assurance that its production cars would conform
to legal requirements, a purpose that would be defeated if the word "construc-
tion were interpreted to include elements of construction that the certification
program did not focus on, or if the certificate did not cover cases where the
"construction" of a production car differed from that of a prototype for reasons
not practically within the control of the manufacturer, such as the difference
inproduction processes between necessarily hand-built certification prototypes
and mass-produced production cars. Such a reading of the present language
of the Clean Air Act is also supported by the position of §206 in Part II as a
whole and by policy considerations, both of which are well discussed by Norman D.
Shutler in a draft memorandum dated 8/30/72, and is adopted in regulations
proposed on February 26, 1973, 38 FR 5183, and now in process of final pro-
mulgation.
The Clean Air Act was amended in 1970 to make certification mandatory and to
delete the language quoted from §206(b) above. However, there is no other
indication of any intent to change the philosophy of the certification program,
and the changes themselves can be explained quite easily. Congress knew that
the simple requirement that all vehicles sold had to meet the standards was a
dead letter for lack of adequate enforcement mechanisms. It accordingly
changed the requirement in §203(a)(l) that all vehicles had to meet the stand-
ards to a requirement that they all had to be certified. Once certification
was mandatory, there was no longer any need to encourage manufacturers to
certify by providing that certification would confer certain benefits on the
manufacturer who elected it, and former §206(b) was deleted accordingly.
Such a reading would indicate that Congress did not intend to change the purpose
of certification, and this is in fact the interpretation EPA has adopted. Certi-
ficates since the statute was changed in 1970 have continued to state that they
apply to all vehicles which are "in all material respects of substantially the
same construction" as a prototype. Although this will be changed by the cer-
tification regulations proposed February 28 to coverage of all vehicles "which
conform, in all material respects, to the same design specifications" as the
test vehicle, no change in the scope of certification is intended.
The philosophy of the certification program is accordingly well established.
Nevertheless, there is a fundamental weakness in the way it presently operates
which will also affect the other design related programs atissuehere. Although
the certification program should be structured to establish the similarity of
the design or production vehicles, in all matters affecting emissions, to the
design of the prototype, EPA has no regulations specifying with particularity
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which parts of the vehicle are regarded as potentially affecting emissions to the
extent they should be described in an application for certification, or the degree
of detail with which a design should be described. This raises the possibility
that a manufacturer might fail to describe or adequately describe some parti-
cular emission related component in the certification application, or more
important, that it might resist a prosecution for selling uncertified cars on
the ground that the difference in design between prototype and production models
was too insignificant to support a prosecution. EPA would then be forced to go
to the trouble and expense of proving that the given difference in design was
emissions related, and to run the risk of losing the case if it could not dolsoT
The risk would be avoided if EPA were to publish regulations setting form
specifically what the Part I Application was required to describe, and in what
detail, and amending the terms of the certificate to provide that any production
vehicle that did not conform to that description would be considered uncertified.
It would be desirable from the enforcement standpoint to make the Part I as
complete an inventory as possible of design characteristics that might cause
the standards to be exceeded. This could be done in part by inviting public
comment on whether the proposed regulations were such a complete inventory
and modifying the final promulgation to cure any defects suggested by the
comments. It would also be desirable to support the inclusion of each required
description by a qualitative, and, if possible, quantitative analysis of why some
possible variations in that design component might cause the standards to be
exceeded.
Tampering
There is no relevant legislative history on what constitutes "tampering" within
the meaning of §203(a)(3) of the Clean Air Act. By a memorandum dated
August 10, 1973, this office has stated that dealer may be convicted for "tam-
pering" even if hedidnot know the act for which he was prosecuted was illegal.
However, it is also our opinion that the word "knowingly" does require that the
defendant know that he is doing the particular act forbidden, and that for a
prosecution to succeed, EPA would accordingly have to prove that the dealer
knew that the work he was doing would have the effect of removing or rendering
inoperative the emissions control system. See United States v. International
Minerals and Chemicals Corp., 91 S. Ct. 1967, 1701 (''A person thinking he
was shipping distilled water when in fact he was shipping some dangerous acid
would not be covered"by a prohibition on "knowingly" shipping such acid with-
out following certain procedures). The easiest way to prove this would of
course be to show that he specifically did the work to achieve this result, but
such a showing is hot necessary to a prosecution. It is enough to show that he
knew that it would be a result of what he was doing.
It seems to follow from the requirement that the dealer must know he is
disconnecting or rendering inoperative part of the emissions control system
before he may be convicted of tampering that tampering is essentially work
that would change the conformity of the vehicle to design specifications. Unless
the change brought about by the work is tangible enough to show up in such a
description, it would most likely be difficult to prove that the dealer knew that
it would have an effect on emissions control elements of design to be described
with particularity in the Part I and were to make and publicize a reasoned
showing that departure from that description might well cause the vehicle to
fail to meet the standards, this might make it easier to prosecute dealers who
made changes that would cause that description to cease to be accurate by
making the proof of knowledge easier.
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If such a project is too ambitious, it would still be useful to publish a list of
the acts that EPA considers to be "tampering", andwhythey are so considered.
2. The Warranty and Recall Provisions
The warranty and recall provisions now contained in §207 were inserted by the
Clean Air Amendments of 1970, and for the most part by the Senate bill.
The only warranty contained in the House bill, which was passed first, was in
§2Q6(e), and provided that each new motor motor vehicle "shall be warranted to
h."we systems or devices for the control or reduction of substances emitted from
vehicle . . . that are substantially of the same construction as systems or de-
vices, on test vehicles . . . for which a certified has been issued". H.R.
Rep. No. 91-1146 (91st Cong., 2d Sess.)(1970) p. 40. (henceforth "House Re-
port") This did nothing more than make the requirements of certification en-
forceable by private citizens under warranty as well as by EPA under the civil
penalty provisions. The legislative history indicates that the notion of a per-
formance warranty had been considered and rejected. "Because of the present
unavailability of adequate, low-cost testing devices to test automobile emissions
while vehicles are in actual use, the committee decided that a performance
warranty would be inappropriate at this time. " House Report p. 12.
By contrast, the Senate bill contained the substance of present Sections 207(b)
and 207(c). Section 207(c) of the Senate bill began:
"Every new vehicle or new vehicle engine introduced in commerce
for sale or resale shall be warranted by the manufacturer to be de-
signed, built, and equipped so as to conform with applicable regu-
lations issued under this title, and shall further be warranted to re-
main in conformity with such regulations for the lifetime of such ve-
hicles or engines if properly maintained, serviced, and operated. "
S. Rep. No. 91-1196, (91st Cong., 2d Sess.) (1970) p. 100 (hence-
forth cited "Senate Report")
The text of the report states explicitly that under this provision "The manufac-
turer would be required to warranty the performance of each individual vehicle
as to compliance with emissions standards. " Senate Report p. 29.i_(emphasis
supplied)
Section 207(d) of the Senate bill would have provided two alternative methods of
implementing this warranty--tests of individual vehicles (corresponding to
present section 207(b)), and tests of a sample of vehicles to assess the perfor-
mance of the class to which they belong (present section 207(c)). As the text
of the report put it: "This section [section 207 of the Senate bill] would provide
two methods to determine whether or not individual cars will perform to the
emission standard. " (emphasis supplied)
During the debate on the Senate floor, both supporters and opponents of these
warranty provisions recognized that they established a performance standard,
as opposed to a design standard, and some of them suggested a materials and
workmanship warranty would be preferable. Cong. Rec. S. 16096 (September 21,
1970)(Sen. Boggs); S. 16233-34 (September 22, I970)(dialogue of Sen. Muskie
and Sen. Griffin)
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The Conference Report adopted (with some changes) the Senate version of these
two provisions.
The Senate amendment required . . . that manufacturers warrant that
vehicles . . . will conform with applicable emissions standards through-
out their useful life (set at 5 years or 50, 000 miles) if maintenance
and certain other requirements are met. . . . The conference substi-
tute adopts substantially the provisions of the Senate amendment re-
lating to compliance after sale and warranty. H. R. Rep. No. 91-1783
(91st Cong., 2d Sess.) (1970)(p. 50)
The legislative history therefore indicates that both §207(b) and §207(c) were
meant to be triggered by emissions performance alone.
The present language of Section 207(c) is completely consistent with this legis-
lative history. However, the first sentence of §207(b)(2) only requires the
manufacturer to warrant the "emission control device or system," not the per-
formance of the vehicle per se. It might be argued on the basis of this phrase
that the §207(b) warranty was not triggered when a car failed the relevant emis-
sions test for reasons not connected with the performance of the "emissions
control device or system".
Although this is a possible argument, we regard it as weak, and very likely to
be rejected by a court in favor of the view that §207(b) looks to vehicle perform-
ance alone. As already noted, this is the message of the legislative history. It
is also the only reading that makes sense from a policy viewpoint. The objective
of §207(b) warranty is to help clean up the air by encouraging manufacturers to
build cars that meet the emissions standards in practice, Cong. Rec. S. 20601
(Dec. 18, 1970) (Muskie). This purpose would not be served if manufacturers
were relieved of warranty responsibility for a certain category of defects that
caused the standards to be exceeded.
The present structure of §207 also provides support for the notion that §207(b)
was meant to be a pure performance warranty. Sections 207(a) and (c) are both
keyed in different ways to the ability of the car to meet the standards. If §207(b)
were restricted to the "emissions control device or systems", it would be en-
tirely possible for a car to be the object of a valid claim under the §207(a) war-
ranty and subject to recall under §207(c), but still not in violation of §207(b)
warranty requirements. Such a result is paradoxical enough to suggest that Con-
gress did not intend it.
Finally, and most important, every part of §207(b) except for the reference to
the "emissions control device or system" is wordedin terms of a pure perform-
ance standard. The warranty does not become effective until a test is available
to determine whether any vehicle "complies with the emissions standards of [the
regulations under Section 202]". The reference to the "emissions control device
or system" is contained in a sentence that merely sets forth a general descrip-
tion of what must be warranted] the next sentence, which describes with parti-
cularity what the warranty must actually provide, is worded purely in terms of
emissions performance, and states that the warranty applies if the vehicle "fails
to conform at any time during its useful life (as determined under section
202(d)) to the regulations [including emissions standards] prescribed under sec-
tion 202."
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Section 207(a)
Section 207(a) appears for the first time in the conference version of the 1970
amendments, and the only reference to it in the legislative history states "in
addition to the performance warranty, the conference substitute calls for
a defect warranty for materials and workman ship". Conference Report p. 51.
Despite this lack of legislative background, it is a reasonable interpretation of
the statute to conclude that the determination of when the §207(a) warranty
applies was not meant to be made on the basis of whether the vehicle in
question actually failed an emissions test. The legislative history of §207(b)
shows at every point that Congress was well aware of the difficulties of de-
veloping an emissions test that would be short enough to be useful in enforcing
an individual-vehicle warranty and also knew that a substantial time would
pass before it could be in effect, yet the §207(a) warranty was made effective
almost immediately upon passage of the 1970 amendments. Congress would
not have done this unless it had contemplated that claims could be made and
compelled to be honored under the warranty as soon as it became effective
and before a test had been developed. *_/
The question then is how, in the absence of an emissions test, a purchaser is to
show that a vehicle "fails to conform with applicable emissions control regula-
tions. " It seems that the only possible answer is that the defect must affect the
conformity of the vehicle to emissions-related design specifications.
This seems dictated both by logic and by the structure of the statute. If a
warranty is to be triggered by the conformity of an individual vehicle to the
standards, and there is no test available to determine conformity, the only
logically possible way that conformity could be determined would be by estab-
lishing a list of individual departures from design and construction specific-
ations that by themselves were known from experience to be enough to cause
non-conformity. That this reading was intended by Congress is supported
by the Congressional establishment of a certification program, the sole func-
tion of which, as noted above, is to control the emissions of production
cars by establishing their conformity to the design specifications of the pro-
totype. If this is the approach Congress has chosen to control emissions
from new cars, it would be a simple extension of the practice, andno depart-
ure in policy, to establish the same approach to §207(a).
This view in turn suggests that the §207 (a) warranty should cover defects in
those parts and elements of design that are required to be described in the
Part I Application. If a given part or element of design affects emissions
performance in regarding all vehicles that do not conform to that description
as uncertified, it follows in logic that any "defect in materials or workman-
ship" that causes the vehicle to cease to conform to the description in the
*7 The Senate version of §207(b) had originally provided that the warranty
would be effective ninety days after enactment of the bill, even though it
was recognized that this would have no practical effect until a short test
was developed. The incongruity of making a warranty effective even though
no claims could be made under it led to the bill's amendment on the floor
of the Senate to provide that there should be no warranty obligation until the
short test had been established. Cong. Rec. S. 16235-37 (Sept. 22, 1970).
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Part I should be enough to trigger the §207 (A) warranty. If such an approach
to §207(a) were adopted, it could of course be predicted that the industry
would take special pains to examine what EPA was demanding in the Part I
and to narrow its scope as much as possible.
The final question under §207 (a) concerns the meaning of the phrase "defects
in materials and workmanship". This is a common phrase in manufacturers'
warranties, and presumably Congress meant it to have its usual meaning
here.
3. Specifics
With the background given above, it is easier to answer some of the specific
questions that previously asked in a memo. They are:
Question #1: Section 207(b) is limited to the "emission control device or
system" and Section 203(a)(3) is limited to "any device or element of design
installed on or in a [vehicle] in compliance with regulations ..." However,
neither Section 207(a) or Section 207(c) are limited to any specific parts of the
vehicle by their terminology. Can these provisions of the Act be interpreted
independently? Specifically, does the limited coverage of Section 207(b) and
Section 203(a)(3) refer to the same parts or systems of a vehicle (or engine)?
Are Sections 207(a) and Section 207(c) limited in scope of coverage to any
specific emission relatedpartor systems of a vehicle (or engine)? If Sections
207(a) and Section 207(c) are limited, are they limited to the same coverage
as Section 207(b) and Section 203(a)(3)?
Answer #1: As discussed above, §207(b), despite the limited scope of
some of its language, was meant to be a performance warranty pure and
simple, not tied to any particular part of the vehicle. Similarly, it is the
opinion that neither §207(a) nor §207(c) is limited to any particular part
of the vehicle. Finally, as stated above, the governing determination in
tampering prosecutions will be whether the dealer knew he was disconnecting
or rendering inoperative some part of the emissions control system.
Question #2: What is the scope of the term "applicable regulations" as used
in Section207(a)(l) and (a)(2)? This term clearly includes Section 202 emis-
sions standards. Does "applicable regulations" as used in Section 207(a)(l)
include the "useful life" of a vehicle (or engine)? Does "applicable regula-
tions" in either (a)(l) or (a)(2) include conformance with the certificate of
conformity and/or prototype with maintenance regulations?
A specific problem focusing on the need to answer the above questions is
whether Section 207(a)(l) or (a)(2) protects a purchaser against a defect
in "design" per se such that emission standards are not exceeded when the
vehicle is new, but are exceeded when the vehicle is within its "useful life .
Such a design defect could exist because the vehicle did not conform with
the certificate of conformity and/or prototype or despite conformance (where
the prototype was improperly certified. )
If the above problem is not covered by an expansive definition of "applicable
regulations" in (a)(l)or (a)(2), are such design defects covered by "defects in
materials and workmanship" under (a)(2)?
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A final consideration is whether, under definitions of (a)(l) and (a)(2) broad
enough to cover the above problem, Section 207(a) has not really swallowed
207(b)? What is the relationship between these two subsections?
Answer #2: Since the emissions standards themselves include a definition of
"useful life", conformity for that period is also encompassed in the notion of
"applicable regulations . In addition, it is the opinion, as discussed above, that
ideally both 207(a)(l) and (a)(2) warranties should be triggered by an omission
or defect that caused a failure to conform to the design of the certification pro-
totype, but that it may be hard to establish such a connection in the absence of
evidence that a failure to so conform will in fact cause the emissions standards
to be exceeded.
The term "applicable regulations", however, should not be read to cover con-
formity with maintenance regulations. Maintenance requirements by their-nat-
ure cannot be warranted by the manufacturer, since compliance with them is
at the choice of the individual motorist. Instead, they are preconditions to the
liability of the manufacturer under the 207(b) warranty provision and the 207(c)
recall.
If a vehicle, for whatever reason, is designed so that it is not capable of meeting
standards for 50, 000 miles, then it will be uncertified if it does not conform to
the design specifications or the prototype. In addition, it will fail in any event
to conform to the §207 (a)(l) warranty. The phrase "designed, built, and equipp-
ed so as to conform at the time of sale with applicable regulations" was inter-
preted as meant to force the manufacturer to warrant that the vehicle is at
the time of sale of a design which is capable of meeting the standards during
the entire useful life of the vehicle as defined in the statute.
As noted above, the relationship between §§207(a)(2) and (b) is that the first is
limited to "defects in materials and workmanship" that cause the standards to be
exceeded, while the latter would also cover cars that exceeded the standards for
any other reason within the control of the manufacturer, such as excessive pro-
duction tolerances or gradual deterioration in control performance under the
strains of normal use.
§§§§§§§
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CERTIFICATE OF CONFORMITY -- SECTION 206
TITLE: Duration of Certificate of Conformity
DATE: June 16, 1972
FACTS
i
Section 202 of the Clean Air Act requires that all new motor vehicles meet
emissions standards established by EPA. Paragraph (a)(l) of section 206 pro-
vides that EPA shall
test, or require to be tested..., any new new motor vehicle or new
motor vehicle engine submitted by a manufacturer to determine whether
such vehicle or engine conforms with the regulations prescribed under
section 206 of the Act. If such vehicle or engine conforms 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.
It is illegal to sell any new motor vehicle of a model that is not covered by a
certificate.
Certificates as originally issued by EPA are valid for 365 days. However, the
Office of Air Programs determined last February that, for a number of impor-
tant policy reasons, the Agency would continue in 1972 its past practice of
issuing renewals for its certificates of conformity which would allow the manu-
facturer to continue to produce vehicles beyond the 365-day period for which the
original certificate had been issued, but no later than December 31.
An attorney in the Air Division of the General Counsel's Office advised the
Program that this decision appeared to be contrary to section 206 (a) as amended
by the Clean Air Amendments of 1970, and you have asked me to re-examine
this matter.
QUESTION
Does the reference in section 206(a)(l) to the issuance of certificates for a
period ".. .not in excess of one year" refer to a model year or to a period of
365 consecutive days ?
ANSWER
While the meaning of the language is far from clear, it is concluded that the
reference is to a model year" and that renewal of certificates is appropriate
for 1972 and also for successive years. A contrary conclusion would appear to
be highly disruptive to production in the automobile industry, and it is unlikely
that Congress would have intended such a result.
DISCUSSION
1. The meaning of the phrase "not in excess of one year" in section 206(a) can
only be gleaned by considering the background of industry and regulatory prac-
tice prior to adoption of the 1970 amendments to the Clean Air Act. While it is
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true that most models are produced for approximately one year, the general
practice of the automobile industry was and is to produce many of its models
for more than 12 months. This practice permits early introduction of some
models and permits manufacturers to fill orders placed late in the model year.
2. The practice of the motor vehicle program--then located in NAPCA in HEW--
was to issue an original certificate of conformity for a 365-day period, but to
grant renewals of any such certificate at the request of a manufacturer, so long
as the renewal certificate did not extend beyond December 31. This practice
was well-known throughout industry, in NAPCA and to the Congress, and was
of unquestionable legality under the language of the Clean Air Act as it then
stood, which required certificates to be issued for a period "not less than one
year."
3. When Congress adopted the "Clean Air Amendments of 1970, " it modified
section 206(a) of the Act to provide that no certificate may issue for a period in
excess of one year. However, there is no other indication in the language of
section 206(a), or any other provision of the Act, or in its legislative history,
that Congress intended to revise the prior practice.
4. In fact, the language of the Act and the legislative history strongly suggest
that Congress intended to sanction model year production for longer than one
year, so long as it did not extend beyond December 31 of the corresponding year
calendar year.
Under section 206(a) of the Act, the Administrator is required to issue a certi-
ficate of conformity for any vehicle or engine which he tests and determines
conforms to regulations "prescribedunder section 202 of this Act. " These reg-
ulations establish emission standards for'new motor vehicles manufactured
during a specific "model year. " The term "model year" is defined in section
202(b)(3)(A)(i) of the Act:
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 production period, the term
'model year' shall mean the calendar year.
By defining "model year" in terms of the individual manufacturers' "annual pro-
duction period, " Congress explicitly gave the individual manufacturer some
control over the meaning of that term. It must have done so with the knowledge
that the "annual production period" to which it referred had often exceeded 365
days in the past for a variety of good business reasons, and that there was no
reason to think this would not be true in the future.
Even if this knowledge of industry practice is put aside, a literal reading of the
language in question suggests that a "model year" is not limited to 365 days.
The term "production period" in itself suggests a variable period, and the only
provision in the statute that could be read as setting a firm 365-day upper limit
to it is the prefix "annual. " However, if Congress meant to set such a limit it
would havebeen so easy to do it explicitly by writing "365-day" where "annual"
now stands that their failure to do this suggests that something else was meant.
What that was is indicated-by the provision that each model year must include a
January 1. The term "annual" can be read as underlining the point that it may
not contain more than one of them.
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If a "model year" may be more than 365 days, then a manufacturer in some
circumstances may produce a vehicle for more than twelve months without
being subject to the nextyear's emissions standards. To argue in the circum-
stances that certification may not be extended leads to the conclusion that, al-
though vehicles produced after the end of a calendar year may conform to all
the emissions control requirements of the Clean Air Act, they may not be sold
because they may not be certified. Since the only purpose of certification is to
show that all applicable emissions standards are met, the argument is not per-
suasive.
5. One possible argument in favor of limiting the production period to 365
consecutive days is that a 3 65-day limit on any model year's production must be
implied in order to prevent circumvention of the effective date of the emission
standards prescribed under section 202.
The short answer to this argument is that the authority to issue a renewal is
not equivalent to the duty to do so. Consequently, the Congress left the Admini-
strator with ample administrative discretion to refuse to grant unjustified re-
newals.
In addition, the provision that each model year must include the January 1 of
the calendar year it corresponds to will limit total slippage over the life of the
statute to the four-month difference between August and December. *_/
6. In this regard, it may be noted that construing section 206(a) to limit pro-
duction for any given model year to 365 days might in certain instances have a
counter-productive effect on air quality. Such a construction would effectively
prevent the early introduction of cleaner vehicles, and thus encourage the sale
and use of dirtier vehicles. For example (and this has happened), if a manufac-
turer were to introduce one of its 1974 models in April 1973 (rather than in
September), this interpretation would mean the vehicle could not be produced
after April 1974unless itmet the 1975 standards as well. Since manufacturers
would refuse to be put in this position, early introduction (and production) of
vehicles would not occur.
7. Despite determination that the natural and constructive interpretation of
the phrase in question is that it refers to a "model year" and not to a 365-day
year, an opposite result could be reached in light of Congress' change in the
language from requiring that a certificate be issued for "at least one year" to
requiringthatitbeissuedforaperiod "not to exceed one year. " Even approach-
ing the matter from a strict-construction point of view, however, an opposite
result is not inevitable.
^7 The legislative history of the 1970 amendments indicates that Congress ex-
~ pected that the effective date of the 1975 standards might be as late as
January 1, 1975. Since on present schedules the production of 1975 models
would start in August 1974, the only way short of shutting down the industry
that the Administrator can be authorized to give the four extra months the
statute contemplates he may find to be justified is to allow him to certify
models produced in prior years for more than twelve months.
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An alternative purpose for the language change may be found. Under the 1967
Act, there was no assurance that the Air Program would review each model
year's vehicles to determine compliance with the standards. A certificate
might have been issued for 2, 3, or 4 years' prospective production. Since a
certificate of conformity was made mandatory under the 1970 amendments,
Congress simply may have intended to insure EPA review whenever a new model
was introduced. Given this alternative purpose, section 206 (a) need not be con-
strued to require compliance with the emission standards for the next model
year after 365 days of production.
8. In conclusion, after analysis and a balancing of the above factors, it is
concluded that the word "year" in section 206(a)(l) should be interpreted--in
1972 and in successive years—as a "model year" of approximately 365 days and
that accordingly, renewals may be issued as they have been in the past.
§ § § § § § §
TITLE: Certification of Vehicles for Sale at High Altitudes
DATE: January 11, 1973
MEMORANDUM OF LAW
FACTS
MSPC has lately investigated the effects of altitude upon emissions from new
motor vehicles, and has concluded that vehicles covered by certificates issued
for test vehicles certified at the Ann Arbor, Michigan altitude emit in excess of
the standards when operated at high altitudes, i.e., above 2 500 feet. The auto-
mobile manufacturers apparently do not contest this conclusion. A memorandum
of November 29, 1972 indicates that MSPC is considering requiring that the
three percent of new motor vehicles which are sold at high altitudes be certified
in compliance with applicable standards at those altitudes.
In terms of certification testing procedures, manufacturers would be required
to submit high altitude test results on emission data vehicles only. No dura-
bility vehicles would be required because it is assumed that the slope of the
deterioration curve on durability vehicles run in Michigan would be applicable,
although the absolute values would be different.
MSPC has determined that manufacturers would have to change calibrations
and/or make some minor hardware changes in order to demonstrate compliance
at high altitudes. Vehicles calibrated to comply at high altitudes could not be
expected to comply at low altitudes, unless manufacturers develop and install
self-compensating devices which would make the necessary calibration changes
as altitude changes.
Finally, MSPC has apparently concluded that drive-ability problems with ve-
hicles calibrated for high altitudes would generally induce the vehicle owner
to obtain necessary calibration adjustments for continued operation at low alti-
tudes.
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QUESTION #1
May EPA require that automobile manufacturers obtain separate certification
of conformity with Federal emission standards for those vehicles destined for
initial retail sale in high altitudes areas ?
ANSWER#1
Yes. The Agency has latitude under §§202 and 206 of the Clean Air Act to de-
termine that unique circumstances affecting emissions compel the certification
of this sub-class of motor vehicles in a manner different from other vehicles
in the same general class sold at low altitudes, and to prescribe regulations
requiring such certification.
QUESTION #2
Does the Clean Air Act require or authorize EPA to require that vehicles certi-
fied to be in compliance with applicable emission standards at high altitudes
also be certified in compliance with those standards at Ann Arbor, Michigan or
some other low altitude location?
ANSWER #2
The Act includes no such requirement but we conclude that there is discretion
in the Administrator to impose the requirement. If vehicles are not required
to be certified at both low and high altitudes, it appears that EPA would have to
assure that manufacturers set out in their maintenance instructions to the pur-
chaser whatever adjustments are necessary to keep the high altitude vehicle's
emission control system functioning properly at low altitudes.
QUESTION #3
What is the legal significance of separate certification of high altitude vehicles
with respect to testing programs for recall under §207(c) of the Clean Air Act?
ANSWER#3
EPA could include high altitude vehicles transferred to low altitude in a recall
program if, prior to testing the vehicles, they are adjusted to the calibrations
which the manufacturer used in certifying the low altitude versions of the ve-
hicles.
DISCUSSION
1. The relevant standard-setting and certification authority for new motor ve-
hicles is set forth in §§202(a) and 206(a) as follows:
[§202(a)] (1) The Administrator shall by regulation prescribe . . .
standards applicable to the emission of any air pollutant from any class
or classes of new motor vehicles ....
[§206(a)] (1) The Administrator shall test, or require to be tested in
such manner as he deems appropriate, any new motor vehicle ... to
determine whether such vehicle conforms with the regulations prescribed
under section 202 of this Act.
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The grants of discretionary authority in these sections are clearly quite broad.
Read together, these provisions provide the Administrator the power to pre-
scribe certification testing requirements which he deems appropriate for the
emission characteristics of new motor vehicles which have some unique con-
figuration or usage, even though the requirements may differ from those applied
to other vehicles of the same general class, e. g., other gasoline-powered light
duty vehicles. Precedent has been established for the exercise of this autho-
rity in the case of off-road utility vehicles, a sub-class of light duty vehicles
recognized by the Agency as having peculiar difficulties with control of certain
emissions sufficient to justify a temporary special standard for those emissions.
In the case of vehicles destined for sale at high altitudes, the application of
special test requirements is wholly consistent with Congressional intent that
new vehicles manufactured for sale anywhere in the nation, except in California,
should be built to achieve an identical level of emission control.
2. There is no express requirement in the Act that vehicles certified under one
set of conditions mustalsobe certified under other conditions. While §202(a)(l)
provides that new motor vehicle emission standards prescribed by EPA ". . .
shall be applicable to such vehicles . . . for their useful life . . ."*/ We do
not think that this may properly be read as an implied requirement of Hual cer-
tification, since it may be assumed that the Congress did not consider the
issue and since there are provisions in the Act which relate to the useful life
stipulation. Specifically, §207's provisions on warranties, recall, and main-
tenance instructions are designed to insure compliance by vehicles in use.
3. EPA may determine that the §207 provisions will not provide adequate
assurance that vehicles manufactured to comply with standards at high altitudes
will continue to comply when driven at low altitudes. For example, even if
manufacturers provided owners with maintenance instructions specifying the
adjustments necessary to deal with such altitude changes, this would provide
only limited assurance that the necessary adjustments would be made. Pre-
sumably, only if the additional factors of adverse driveability and/or State ve-
hicle emission testing programs are present will vehicle owners be motivated
to obtain the maintenance prescribed. State testing programs appear to be un-
likely in the near future. MSPC's draft paper 'lligh Altitude Modifications"
indicates that substantial difference of opinion exists among the manufacturers
as to whether driveability and, consequently emission control, of high altitude
calibrated vehicles is significantly adversely affected at low altitude. It is
believed that EPA has the authority under §206 to require that vehicles be
certified at low as well as high altitude, based upon its determination that
manufacture of the vehicles with altitude compensating devices is necessary to
insure their continuing compliance.
4. Assuming that EPA does not require dual certification of the high altitude
vehicles, the maintenance and use instructions under §207(c)(3) are of special
significance.
It is the opinion that the proper discharge of EPA's responsibilities under that
section would include EPA's requiring that "necessary" maintenance and use
instructions contain adjustments necessary for proper low altitude functioning
of the emission controls. Logically, maintenance instructions for low altitude
vehicles should also be required to specify necessary adjustments for proper
high altitude functioning of controls.
"Useful life" is defined by §202(d) to mean, for light duty vehicles, five
years or 50, 000 miles, whichever occurs first.
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TITLE: Availability of Lead-Free Gasoline to Independent Retail Marketers
DATE: July 19, 1972
MEMORANDUM OF LAW
FACTS
The Agency's proposed regulations of February 23, 1972 would require retail
gasoline stations of average and above-average size to market at least one grade
of lead-free, 91 octane (RON) gasoline, beginning July 1, 1974. This regula-
tion is designed to provide for general availability of the lead-free gasoline
that will be required by 1975 model year light duty motor vehicles which will
be equipped with catalytic emission control systems. Total demand for this
type of gasoline, will of course increase as catalyst equipped vehicles become
a larger percentage of in-use vehicles. Initially, however, widespread "de-
mand" for lead-free gasoline will have been created by EPA's regulation. I/
The Society of Independent Gasoline Marketers of America (SIGMA) complains
strenuously that as major refiners begin to upgrade refinery capacity to pro-
duce large quantities of unleaded gasoline, all unleaded production will be
utilized in these refiners' own marketing chains or in those of other majors
(on a product exchange basis). They contend that since the majors now sell to
them only their excess production of gasoline, they will be cut off from all
supplies of unleaded gasoline during whatever period is necessary for the majors
to complete the refinery conversion for lead-free gasoline production. The
independent retailers, therefore, urge the Agency to provide by regulation that,
beginning in mid-1974, major refiners set aside for sale to independent retail
marketers (as a class) that portion of each refinery's lead-free gasoline pro-
duction which equals the percentage of that refinery's total gasoline production
sold to such marketers during the 1972-1974 period. If EPA does not take this
action, they assert, virtually all independent retailers will be forced out of
business as a result of our regulation.
QUESTION
Does the Clean Air Act provide the Administrator authority to require major
refiners to make available a portion of their lead-free gasoline for sale to
independent retail marketers ?
ANSWER
No such express authority is provided by the Act. Implied authority to impose
such a regulation could be found only with respect to a marketing area where
EPA determines that insuring general availability of lead-free gasoline is de-
pendent upon guaranteed accessibility to that product by independent retailers. 2_/
£/ In a broader sense, the demand for lead-free gasoline has been created by
EPA's stringent motor vehicle emission regulations for 1975-76, which
were required by §202(b) of the Clean Air Act.
2/ A legally supportable approach to alleviate the adverse effect of the pro-
posed regulation is outlined in the DISCUSSION section below.
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DISCUSSION
1. The relevant statutory language appears in §211{c)(l), as follows:
"The Administrator may ... 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 ... if emission products of such fuel or fuel additive will
impair to a significant degree the performance of any emission control
device or system . . . . "
Pursuant to this authority, the Administrator has proposed the regulations to
which the independent retailers object. The regulations would "control" the
availability of lead-free gasoline at retail service stations in order to insure
that owners of catalyst-equipped vehicles would have ready access to a fuel
which would not harm the catalyst. 3_/ The independent retailers argue that if
EPA has the power to provide by regulation for general availability of lead-free
gasoline at retail outlets, it is also empowered to provide for general avail-
ability ofTead-free gasoline tp_ retail outlets. 4/
2. As stated in January 17, 1972 memorandum, any control imposed pursuant
to §21 l(c)(l) must be designed to effectuate the legislative purpose of preventing
endangerment to health or welfare or impairment of emission control devices,
and must be reasonably necessary to carry out that objective. Here EPA is
concerned only with the protection of emission controls and the general avail-
ability of lead-free gasoline necessary to assure that protection. Accordingly,
the only situation in which EPA can conceive of the regulation proposed by
SIGMA being legally supportable under §211 is where the guaranteed availabil-
ity of lead-free gasoline at independent retailers (above the minimum size
specified in the proposal) in a given retail marketing area would be determined
by EPA to be essential to the goal of general availability of that product in that
area. The proposal itself suggests that this determination has already been
made with respect to all geographic areas of the country, but our information
is that it has not been made for any area. 5/ To EPA's knowledge, no one has
presented information demonstrating that tEe accomplishment of general avail-
ability of lead-free gasoline will be compromised in any area if independent
retailers there do not have supplies of that gasoline beginning July 1, 1974.
3. It appears that a legally supportable basis for dealing with the concerns of
independent retailers is to provide for exemptions from or postponements of
the lead-free marketing requirement in the regulations. A general exemption
or postponement could be prescribed for a defined class of marketers. Alter-
natively, the Agency could provide that a retail marketer who demonstrates to
the Administrator that lead-free gasoline is generally available in his market-
ing area and/or that he is unable to obtain necessary supplies of lead-free gas-
oline could be granted a postponement of or exemption from the lead-free
37 As discussed in memorandum of January 17, 1972, this type of "control"
was expressly approved by the Senate Public Works Committee when it
reported §211, inter alia, to the Senate.
4/ Although SIGMA is represented by counsel, no legal arguments in support
of this proposition have been submitted.
5/ Independent retailers apparently account for only 7 to j.0 percent of the
annual volume of gasoline sales nationally.
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marketing requirement. As the percentage of in-use vehicles which are cata-
lyst-equipped increases after 1975, market demand would probably force such
retailers to obtain stocks of lead-free gasoline or cease doing business, but
presumably the refinery capacity of major refiners would by that time 'have
progressed to the point that excess refining stock of lead-free gasolines should
be available to independents, just as leaded gasolines are now. In essence,
this approach would attempt to return the independent retailers to the supply
situation they are now in. Admittedly, independent retailers under an exemp-
tion would still face the problem of lack of supply from mid-1974 until refinery
capacity reaches levels of excess production of unleaded gasoline, a period of
time which would vary with the refineries involved.
§§§§§§§
TITLE: Exportation of Vehicles to Canada (Section 203)
DATE: July 31. 1972
MEMORANDUM OF LAW
FACTS
Ford Motor Company wishes to export light duty motor vehicles to Canada
without having obtained EPA certification that they conform to U. S. motor ve-
hicle emission standards. Canada has its own regulatory program governing
automobile emissions. Its standards and test procedures appear to be iden-
tical to EPA's, except that it has not adopted emission standards or test pro-
cedures for oxides of nitrogens. Fordmaintains that, under the Clean Air Act,
this difference in the two countries' regulatory programs permits them to ex-
port to Canada without first receiving certification of conformity by EPA.
QUESTION
Does the Clean Air Act subject domestically-manufactured motor vehicles to
EPA emission standards if the country to which the vehicles are to be exported
has motor vehicle emission standards in effect which differ from those of EPA?
ANSWER
No. So long as the country of destination has standards or test procedures
for a given year or model year which differ in any respect from EPA's stan-
dards or test procedures for that year, the vehicles are not subject to the
standards and certification requirements of the Clean Air Act.
DISCUSSION
1. The relevant statutory language appears in §203(b)(3) of the Act, as follows:
A new motor vehicle or new motor vehicle engine intended solely for
export, and so labeled or tagged on the outside of the container and
on the vehicle or engine itself, shall be subject to the provisions of
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subsection (a), except that if the country of export has emission
standards which differ from the standards prescribed under sub-
section (a), then such vehicle or engine shall comply with the stan-
dards of such country of export. !_/
The 1965 Clean Air Act specifically exempted from emission regulations ve-
hicles intended solely for export. In considering amendments to the Act in
1970, the House retained that exemption, but the Senate discarded it. 2J In a
memorandum of April 12, 1971, it was concluded after analysis of the legisla-
tive history of the 1970 amendments that they narrowed the existing exemption
for exported vehicles, evidencing a compromise between the House and Senate
bills. 3_/ It was advised that the Act requires U.S. manufacturers to comply
with EPA standards with respect to new motor vehicles exported to countries
having no emission standards applicable to such vehicles, unless the country
of destination informs the Agency that it has no such standards in effect.
Vehicles to be exported to a country having emission standards identical to
those prescribed under the Act must, presumably, obtain U. S. certification. 4/
2. The scope of the exceptionfor vehicles destined for countries having emis-
sion standards which differ from EPA's is the key issue raised by Ford's re-
quest. The question is whether the Congress meant the exception to apply to
all EPA standards so long as the country of destination has any_ standard which
differs, or whether the exception is to apply only with respect to any individual
standard which is different. In the case of Canada, for example, must Ameri-
can-made vehicles obtain certification for all EPA standards because they do
not differ from Canada's, for only the NOX standard because it is the sole
differing standard, or for no EPA standards because the Canadian standards,
viewed as a complete regulatory program, differ from the EPA standards
package ?
3. We take the view that the language in the section regarding countries with
differing standards was intended to be applied broadly, to exempt from U.S.
certification requirements vehicles destined for countries whose emission stan-
dards, viewed as a complete regulatory program, differ in any way from U. S.
emission regulations. Under this construction, a foreign government could
prescribe emission regulations suited to that country's air quality needs, which
may vary greatly from U. S. needs, and American manufacturers would have to
T7 The second reference to "subsection (a)" must be read as meaning §202(a),
since no standards are to be prescribed under §203(a).
2y Because the Senate Committee report on the bill (Sen. Kept. No. 91-1196)
stated that the amended §202 "... .would be, for practical purposes, repe-
tition of existing law. ..", there is reason to believe that the deletion
resulted from oversight.
3_/ OGC(R. Baum) toOAP (E. Tuerk) "Exportation of American made vehicles, "
April 12, 1971.
4_l This statement should not be taken to foreclose the possibility that EPA
could legally arrange by formal agreement that the country of destination
would monitor compliance with both sets of standards by American-made
vehicles imported into its territory.
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build vehicles for export to that country to meet one set of standards only. The
alternative to this approach would involve joint EPA-foreign regulatory efforts,
requiring the meshing of overlapping and possibly inconsistent regulatory pro-
grams. Such an illogical result, involving unproductive expenditure of EPA
resources and the development and manufacture of vehicles with control sys-
tems not dictated by air quality needs, should not be considered the legislative
intent unless Congress provided a clear directive to that effect. No such man-
date is set forth in the section or its legislative history.
4. It is recommended that any determination regarding shipment of vehicles
to Canada be promptly communicated to all domestic manufacturers.
§§§§§§§
TITLE: Tampering
DATE: August 12, 1973
By a memorandum dated November 1, 1972, you have asked our opinion on
three questions arising under Title II of the Clean Air Act. Two of these
questions, and our answers to them, are discussed below.
QUESTION #1
Does EPA have authority to make investigative searches of dealers' premises
to uncover tampering violations? If so, what procedures must be followed?
ANSWER #1
If a civil action under 204 or 205 alleging tampering has been brought, the
dealer and other witnesses may be deposed and forced to produce documents and
permit inspections under the Federal Rules of Civil Procedure. However, in
all other cases the better legal view is that EPA has no authority to make inves-
tigatory inspections of dealers' premises or records.
QUESTION #2
What are the various procedural requirements of tampering prosecutions ?
ANSWER #2
Congress has explicitly labeled the penalty imposed for tampering as "civil",
and there is every reason to think the courts would uphold that classification.
Accordingly, EPA would only have proved its case by a preponderance of the
evidence, and the dealer would have no Fifth Amendment right to refuse testi-
mony on the ground it might show a tampering violation. It also seems clear
that the proprietor of a dealership could be held responsible for tampering by
any of his employees, and that the doctrine of entrapment would not be any
obstacle to effective enforcement using a "bait car".
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DISCUSSION
1. Investigatory Inspections
Sections 206(c) and 208 of the Clean Air Act explicitly authorize investigatory
inspections of the records and facilities of motor vehicle manufacturers.
There is no similar provision authorizing inspection of the records and facil-
ities of dealers.
The legislative history of the Clean Air Act shows that this failure to au-
thorize inspections of dealers was not an oversight by Congress. Each of
the two times Congress has passed a bill to control motor vehicle emissions,
the Senate version has contained explicit authority to inspect dealers, and
each time this authority has been removed from the bill in conference. Com-
pare S. Kept. No. 192 (89th Cong., 1st Sess.)(1965) p. 24 with 70"Btat.
994 (Section 207 of the Motor Vehicle Air Pollution Control Act); compare
S. Kept. No. 91-1196 (92d. Cong., 2d. Sess. )(1970) pp. 109-110 with Section
208(c) of the Clean Air Act as it now stands. Such a record of Congressional
action on substantive portions of a draft bill is a particularly weighty form
of legislative history. See National Automatic Laundry Council v. Schultz,
443 F. 2d., 689, 706 (D. C. Cir. 1971)(Leventhal, J.)
In addition, Section 114 of the Clean Air Act confers authority on EPA to make
inspections in connection with the development and enforcement of implemen-
tation plans, and EPA's other statutes contain similar grants of authority. See
Section 308 of the Federal Water Pollution Control Act, as amended; Section 13
of the Noise Control Act of 1972; Section 9 of the Federal Insecticide, Fungi-
cide, and Rodenticide Act, as amended. "When Congress has consistently
made express its delegation of a particular power, its silence is strong evi-
dence that it did not intend to grant the power. " Alcoa Steamship Co. v.
Federal Maritime Commission, 348 F. 2d. 756, 758 (B.C. Cir. 1965).
On the other hand, it is a rule of statutory construction that courts "may not
'in the absence of compelling evidence that such was Congress' intention....
prohibit administrative action imperative for the achievement of an agency's
ultimate purpose.'" U.S. v Southwestern Cable Co., 88 S. Ct. 1994, 2005
(1968), quoting In re Permian Basin Area Rate Cases, 88 S. Ct. 1344, 1367
(1968). This principle could be invoked here, as the policy reasons supporting
dealer inspections are plainly substantial.
Furthermore, there is some precedent for establishing investigatory inspection
requirements by regulation even where the statute is silent concerning them
and there is some indication of contrary legislative intent.
In two cases from the 1940's, the courts upheld a regulation promulgated by
a Federal rent-control agency that required landlords to admit Federal in-
spectors even though the statute under which it was issued had been amended
to delete an explicit authorization for such visits. Woods v. Carol Manage-
ment Corp., 168 F. 2d 791 (2d. Cir. 1948) (A. N. Hand, J.) (alternate holding);
Graylin Bainbridge Corporation v. Woods. 173 F. 2d. 790 (8th Cir. 1949).
Partly in reliance on these cases, EPA has promulgated regulations under
§211 of the Clean Air Act which not only require gas stations to make lead-free
gas available, but also require them to admit EPA inspectors to check on
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compliance. 38 FR 1254 (January 10, 1973). No litigation challenging these
regulations has yet been filed, even though the absence of an explicit provision
for inspections under §211, when coupled with the presence of such a provision
in other parts of the Clean Air Act, might be taken as evidence of a Congres-
sional intention that no such power should exist where §211 was concerned.
These cases would provide pretty good support for inspection regulations appli-
cable to dealers if it were not for one procedural obstacle.
The regulations involved in each of the examples above were promulgated under
authority of a statutory provision that also authorized their judicial enforcement.
Section 211 of the Clean Air Act provides a civil penalty of $10, 000 per day for
violation of any regulations established to "control" the additive content of gaso-
line, while 50 App. U. S. C. 1896 allows the government to obtain injunctive
relief against any violation of regulations promulgated under the rent control
act involved in Carol Management - Bainbridge.
By contrast, Section 301(a) of the Clean Air Act, under which dealer inspec-
tion regulations would have to be issued, contains no similar provision for
judicial enforcement. In the absence of explicit authorization, of course no
penalties for violation of these regulations may be imposed. In addition, the
absence of any provision for injunctive enforcement of 301 (a) regulations, even
though provisions for injunctive relief are contained elsewhere in the Clean Air
Act, and in EPA's other statutes, once again indicates that Congress did not
intend even injunctive enforcement of §301(a) regulations.
As far as injunctive relief is concerned, the argument based on legislative
intent is not conclusive. In U. S. v. Republic Steel Corp., 80 S. Ct. 884, 890
(1960) the question at issue was the proper construction of the Rivers and Har-
bors Act of 1899. That Act forbade (a) erecting any structure in navigable
waters without government permission. Criminal penalties were provided for
each category of violation, but injunctive relief was only authorized against
the first. Nevertheless, the Supreme Court, in a 5-4 decision, said there was
an implied right of injunctive relief against the second category as well.
"Congress has legislated and made its purpose clear; it has provided enough
Federal law in [the rest of the statute] from which appropriate remedies may
be fashioned even though they rest on inferences. The court justified its
broad reading in part by what it saw as a statutory purpose to protect the
environment. It reached this conclusion even though a prior version of the
statute had explicitly authorized the injunction in question, and Congress had
deleted that provision. United States v. Perma Paving Co., 332 F. 2d. 754
(2d. Cir. 1964) (Friendly, J.).
In Republic Steel, however, there was no dispute that the acts sought to be
enjoined were illegal under the statute, and it was simply a matter of imply-
ing an additional remedy. In our case the court would not only have to imply
the remedy, but would simultaneously have to find the regulation itself con-
sistent with the statutory purpose. Though it might be argued that these are
two separate questions which the court should analyze separately and without
regard to each other, I think the better (and more realistic) view is that
taking the regulation as a whole, we would be asking the court to stretch the
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statute still more than it was stretched in Republic Steel. *_/ Though I cannot
say, in light of the cases cited above, that this would be a hopeless under-
taking, I think it would be very difficult. Inspections of business premises do
contain some elements of invasion of privacy not present even in the cases
cited, in which the inspectors did not enter apartments without the tenants
consent and the bulk of the rest of the building was open to all tenants without
restriction. In addition, the Clean Air Act is a new statute, comprehensively
drafted to confer broad powers on EPA to deal with the general problem of
air pollution, not an old and obscure law like the Rivers & Harbors Act. Such
factors make the arguments based on legislative intent with which this memo
began particularly presuasive, and my own belief is that they would prevail.
If this analysis is correct, and no administrative authority to inspect dealers
for tampering violations can be implied from the statute, the only way left
of using the legal process to gather information will be to gather it in the
course of enforcement proceedings.
The law here is relatively straightforward. If probable cause to believe
there has been a criminal violation is shown, EPA may apply for a search
warrant under Federal Rules Crim. Proc. 41(b). In particular, a warrant
for the seizure of evidence of a crime may be obtained.
Unfortuantely, the only criminal statute**/ that might be relevant is Section
113 of the Clean Air Act, which forbidlTany knowing misstatement in "any
application, record, report, plan, or other document filed or required to be
maintained under this Act." I do not know of any document which dealers
file with EPA or are required to maintain under the Clean Air Act, and so I
conclude that this provision will not be useful in obtaining information on tamp-
ering.
No such problems arise regarding Sections 204 and 205, which authorize in-
junctive relief and fines against tampering dealers. As discussed below, it
is virtually certain that the Congressional designation of these fines as "civil"
will be upheld by the courts, and it follows that the Federal Rules of Civil
Procedure will apply. See Fed. R. Civ. Proc. 1, 81.
^J The courts also have power, even when there is no authorizing statute at all,
to issue an injunction at the request of the government to remove wide-spread
obstacles to interstate commerce where emergency conditions are present,
In re Debs, 15 S. Ct 900(1895), or even in some cases where they are not
present, United States v. Brand Jewelers. Inc., 318 F. Supp 1293 (S. D.N.Y.
1970). I doubt that inspections of dealers for tampering violations would be
viewed by the courts as falling within this principle, and even if they were,
the courts would most likely not issue an injunction under this authority until
they had engaged in a more detailed sifting of the individual circumstances
than would be called for in the case of an injunction issued under a statute.
Note, "The Statutory Injunction as an Enforcement Weapon on Federal
Agencies" 57 Yale L. J. 1023-52, 1024 1026-47 (1948).
**/ Except for 18 U.S.C. §1001, which prohibits essentially the same acts in
somewhat broader language.
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Under these rules, a complaint need only set forth a "short and plain statement
of the claim showing the the pleader is entitled to relief; Fed. R. Civ. Proc.
8(a). Although all the facts necessary to a favorable verdict need not be
summarized in the complaint this rule does require "the pleader to disclose
adequate information on the basis of his claim for relief as distinguished
from a bare averment that he wants relief and is entitled to it." 2A Moore,
Federal Practice and Procedure, p. 1608. See also Conley v Gibson, 78
S. Ct. 99 (1957). ~
Once the complaint had been filed, the rules would allow EPA to take the
deposition of the dealer or any of his employees, to make him produce any
relevant documents, and to inspect his premises, Fed. R. Civ. Proc. 26(a);
34. Since the violation is civil, the dealer would have no Constitutional right
to refuse to give evidence concerning it either on deposition or at the trial.
There is one other way that information might be obtained from dealers under
the Clean Air Act. Section 114 allows the Administrator to require the
owner or operator of any emissions source to keep records concerning it,
and allows EPA employees to enter any premises where an emissions source
is located, as long as these things are done ft[f]or the purpose of developing
or assisting in the development of any implementation plan under Section 110
[or] of determining whether any person is in violation of any requirement of
such a plan."
The term "emissions source" is not defined explicitly, but if given its usual
meaning it would certainly include automobiles. Accordingly, this provision
could be sued to obtain access not just to dealer's premises, but to any garage
or workshop where automobiles are located. Such an authority, however,
could only legitimately be exercised in AQCRs that exceed the standards for
automobile-related pollutants, since only in such regions is "development" of
a plan to control such pollutant necessary. In such regions it would be legiti-
mate for EPA to inspect garages in order to determine the extent of tampering
and thus whether the applicable implementation plans should be required to
contain anti-tampering provisions. The information so gathered could then be
used in 204 prosecutions, even though supporting such prosecutions could
not legitimately be the purpose of the inspections. United States v Morton
Salt Company, 338 U.S. 632, 641-42, 647-51 (1950)(Jackson, J.). In addition,
if might be found advisable as the result of such a survey to require state
implementation plans in these AQCRs to contain anti-tampering provision.^/
If a plan contained such provisions, 114 would confer on EPA a continuing
right to inspect those subject to them in order to determine compliance.
*/ Such a requirement would only be authorized if it was necessary to achieve
or maintain air quality standards. To justify it EPA would have to show that it
would probably result in emissions reductions over and above those produced
by the I&M systems all these regions propose to adopt, and that these further
reductions were necessary to achieve or maintain the standards. If it were
clear already that this could not be shown, no inspections of dealers could be
carried out under, 114, since it would by extension also be clear that such
inspections would not be needed to develop a plan under 110, which is their
only relevant legitimate purpose.
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2. Procedures in Civil Litigation
Section 205 of the Clean Air Act states explicitly that the penalties it authorizes
are "civil". Such a classification by Congress will generally be upheld by the
courts, expeciallyif the prohibition of the act in question serves a valid regula-
tory prupose and the act is not malum in se. Goldschmid "An Evaluation of
the Present and Potential Use of Civil Money Penalties as a Sanction by Fed-
eral Administrative Agencies," Report to the Administrative Conference of
the United States, November 17, 1972, pp. 17-19. See also Filmon Process
Corp v. Spell-Right Corp. , 404 P. 2d 1351, (B.C. Cir. 1968) (Leventhal, J.)
If the case is civil, proof is of course by a preponderance of the evidence,
and there is no Fifth Amendment right not to testify. The applicable search
and seizure rules have been discussed above.
You have asked specifically whether the defense of "entrapment" applies in
civil cases, and whether it would forbid prosecuting a dealer who had only
disconnected an emissions control system because an EPA inspector posing
as a customer had asked him to.
The most recent Supreme Court case on entrapment is United States V.
Russell 93 S. Ct. 1637 (1973). Defendant here was suspected of the illegal
manufacture of amphetamines. An under cover agent approached him and
offered to supply him with a scarce and necessary raw material for this drug
in return for half the finished product. A defense of entrapment was rejected,
even though the agent had not only asked the defendant to commit the crime,
but had himself furthered it by suppying a necessary ingredient. In rejecting
it, the court reaffirmed the theory of prior cases that the entrapment defense
depends on establishing that the government agent persuaded an initially un-
willing defendant to break the law, as opposed to simply giving the defendant
the opportunity to act out his own pre-existing disposition to break the law.
I have not found any cases on whether the defense of entrapment applies in
suits to collect a civil penalty. However, the defense rests on a theory of
statutory interpretation that would seem as applicable in civil as in criminal
proceedings. That theory is that the law does not intend to punish those whose
intent to break the law is not really their own, but is urged on them in
some way by the prosecuting authorities. In any event, the entrapment defense,
as defined in Russell, should not present any problems for tampering pro-
secutions even if it is applicable to them.
It is clear that a tampering complaint may be filed against any person or
business entity which fits the definition of "manufacturer" or "dealer."
Sections 213(1) and (4) define manufacturer and dealer respecively as "any
person" who engages in specified activities. Section 302(s), in turn, defines
"person" to include "an individual, corporation, partnership, association,
State, municipality and political subdivision of a State." Thus, EPA may
file suit against any individual or business entity which fits the definition
of manufacturer or dealer under Section 213(1) or (4).
The Clean Air Act only forbids the "knowing" removal or rendering inoperative
:>f an emissions control system. In statutes denouncing offenses involving
noral turpitude, use of the words "knowingly" or "willfully" generally implies
i requirement of evil purpose or criminal intent. In statutes providing civil
>enalties for acts not in themselves wrong, this interpretation does not apply.
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United States v. Illinois Control R. Co., 58 S. Ct. 533-8 (1938).
United States v. International Minerals & Chemical Corporation 91 S Ct
1697 ~ ~~~ - - - —
Texas -Oklahoma Express, Inc. v. United States. 239 F. 2d 100, 103 (10th
Cir. l ' -
The Illinois Central case involved a statute, similar to §205 of the Clean Air
Act, which provided a civil penalty for "knowing and willful" failure to comply
with the act. Tampering violations are clearly malum prohibitum, rather than
malum in se. This is particularly true be cause only a civil penalty is imposed.
Accordingly, a dealer maybe penalized for "knowingly" rendering an emission
control device inoperative even if he was unaware of the statute. "It is not
necessary that the actor intended to break the law. It is enough that he
intended the act. "
American Timber & Trading Co. v. First National Bank of Oregon, 334 F.
gupp. BK« OX Org. 1971)*/ See also MoKaette v .United States, 725. Ct 240
(1 952 )( Jackson, J. ); United States v. "Schwartz, 464 F. 2d 499, 509 (2d Cir.
1972). ' -
Boise Dodge, Inc. v. United States, 406 F. 2d 771 (9th Cir. 1969): Inland
Freight Lines v. United States, 1 91 F. 2d 313 ( Oth Cir. 1951).
It has long been established that a corporation may be criminally liable for
the acts of its agents, even when a mental state such as knowledge is an
element of the crime charged.
New York Central & H. R. R. Co. v. United States, 29 S. Ct. 304 ( 909).
United States v. A & P Trucking Company, 79 S. Ct. 203 (1958).
In our view, extension of this principle to civil rather than criminal violations
presents no problems. The traditional principles of respondent superior
govern, requiring that the agent's illegal conduct be (1) within the scope of
his employment and (2) done for the benefit of the principal.
Standard Oil Company of Texas v. United States 307 F. 2d 120, 127 (5th
cir. 1962); Steere Tank Lines, Inc. v. United States, 330 F. 2d 719, 722
(5th Cir. 1963); United States v Carter, 311 F. 2d 934, 942 (6th Cir. 1963).
*V tMil 1971, a different standard was applied by some courts when violations
of ICC regulations were alleged. 18 U. S. C. §835 provides that a fine may be
imposed if a person "knowingly violates any such regulation. " specific wrong-
ful intent and actual knowledge of the regulation were held to be required to
sustain a prosecution. United States v. Chicago Express, Inc., 235 F. 2d 785
(7th Cir. 1956); St. Johnsbury Trucking Company v. united States, 220 F. 2d
393 (1st Cir. 1955):—However, in United States v. international Minerals &
Chemical Corp., 91 S. Ct. 1697 (1971), the Supreme Court Jield that know-
ledge of the regulation is not required. The dissent in that case agreed that
such a rule would have been proper, if the statute had penalized whoever
"knowingly" did a certain act (as §205 does) but argued that no one can know-
ingly" violate a regulation without being aware of its existence.
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If these two facts are established, the knowledge of the agent will be imputed
to the corporation. It is irrelevant that the person violating the law was a
subordinate employee, rather than an officer or manager.
The business entity cannot be left free to break the law merely because
its owners. . .do not personnally participate in the infraction, the treas-
ure of the business may not with impunity obtain the fruits of violations
which are committed knowingly by agents of the entity in the scope of their
employment. Thus, pressure is brought on those who own the entity to
see to it that their agents abide by the law.
United States v. A & P Trucking Co., 79 S. Ct. 203, 205 (1958) Accord,
United States v. George F. Fish, jnc~l 54 F. 2d 798, 801 (2d Cir. XClark, J.)
United States v. Steiner Plastics Mfg. Co., 231 F. 2d 149, 153 (2d Cir 1956).
Thus, a corporation or partnership which qualifies as a manufacturer or dealer
may be fined civilly under Section 205 for tampering done by a mechanic,
even when the shop foreman or owner had no knowledge of the employee's
actions.
An extended discussion of the principles of respondent superior is not nec-
essary here. It should be noted, however, that a corporation may be liable
under a statute requiring knowledge even though it specifically instructed its
employees not to do the prohibited act.
United States v. Harry L. Young & Sons, Inc. 464 F. 2d 1295 (1 Oth Cir. 1972);
Standard Oil Company of Texas v. United States supra, at 127.
It has been argued that partnerships cannot be held liable under statutes pro-
hibiting "^knowing" or "willful" acts if one of the partners are individually li-
able. The Supreme Court squarly held against this contention in United States
v. A & P Trucking Co., 79 S. Ct. 203 (1958). "It is elementary that such
impersonal entities can be guilty of 'knowing1 or 'willful' violations of regula-
tions through the doctrine of respondent superior. " Id. at 125. However,
if the partners are completely free of guilt, they must not be held personally
liable under such a statute Id. at 127. Accord, Gordon v. United States,
74 S. Ct. 434 (1954). ~
Finally, you have asked if EPA can take the position that any change to a
certified vehicle amounts to a violation of Section 203(a)(3). Plainly not all
changes will do - for example, a radio might be taken out or put in. It is
true, however, that the connection between the certification program and the
tampering prohibition is very close in principle. Ideally the Part I Applica-
tion should describe all emissions-related components and calibrations, giv-
ing all details that might be expected to affect emissions, arid should contain
nothing else. If the Part I so draft were not an accurate description in every
detail it touched on of the corresponding production vehicles, those vehicles
would be considered uncertified. Analogously, if it were conceded by all con-
cerned that the Part I contained only information that was significantly related
to emissions, any work on a vehicle that caused it to cease to be accurately
described by the Part I might well be considered to "render inoperative. . .
[an] element of design installed on or in a motor vehicle. ... in compliance
with regulations under this title. "
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So construed, the scope of the tampering program would be exactly the same as
the scope of the certification program. The only difference whould be that
the tampering rules would apply at a later stage in the vehicle's life. The
manufacturer would indicate to EPA by filling out standards on that particular
model. The requirement that production vehicles be of the same design as the
prototype would then be used to ensure that the manufacture built production
vehicles in strict conformity with the Part I, and the tampering provision
would be used to ensure that no manufacturer or dealer put such vehicles
out of conformity after they had been built.
However, this is idealism. Regulations that simply stated that any change
in a vehicle that caused it to cease to be described accurately by the Part I
would be considered tampering would probably not be sustained. In the first
place, there is no clearly fixed format for the Part I and no required infor-
mation. Second, manufacturers or dealers might well argue that just because
manufacturers are willing to take the simple step of including information in
a Part 1 application they do not thereby concede that all the information is
emissions-related to the extent that tampering prosecutions can be decided
by reference to it.
To overcome these difficulties it would be necessary, if interpretative regu-
lations detailing our view of tampering were to be issued, to present in the
proposal a reasoned qualitative analysis of why certain elements of design
were so vital that interference with them could be deemed tampering, supple-
mented if possible by quantitative analysis as well.
§§§§§§§
TITLE: Tampering Violations Under §203(a)(3) of the Clean Air Act
DATE: August 10, 1973
MEMORANDUM OF LAW
BACKGROUND
Your memorandum of July 26, 1973, raises the situation where a vehicle own-
er encourages or directs a dealer to tamper with the emission control equip-
ment on the vehicle. While the dealer is clearly prohibited under §203(a)(3)
of the Clean Air Act from removing or rendering inoperative an emission
control system on a vehicle once it is sold to the ultimate purchaser, the
liability of the vehicle owner in the situation raised has been given little con-
sideration. 1 / The inclusion of persons other than the manufacturer and dealer
within the ambit of §203(a)(3) has considerable significance for MSED's tam-
pering enforcement activities.
M Although your question here was not raised directly, we advise you briefly
on the point in our memorandum of March 26, 1973, to which you refer.
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FACTS
Is a vehicle owner who encourages or directs an automobile dealer to re-
move or render inoperative an emission control device on his vehicle acting
in violation of §203(a)(3) of the Clean Air Act?
ANSWER
Yes, since the "causing" of the removal or rendering inoperative by a manu-
facturer or dealer is also a prohibited act under §203(a)(3). However, the
owner's actions must be sufficiently direct and conclusive to allow the ele-
ment of causation to be proved.
DISCUSSION
The relevant statutory language is as follows:
§203(a) The following acts and the causing thereof are prohibited. . . .
(3). . . .for any manufacturer or dealer knowingly to remove or render
inoperative any [emission control] device or element of design after .
. . . sale and delivery to the ultimate purchaser.
As Norman D. Shutler, Director of the Mobil Source,Enforcement Division,
has recently pointed out this language is subject to the interpretation that
the "act" referred to is tampering and that it is only the manufacturer or
dealer to whom the prohibition is directed. He argued, therefore, that
the "causing" language must be read as prohibiting the manufacturer or
dealer from directing someone to tamper. In further support of this view,
he notes that there is no provision prohibiting the vehicle owner from tam-
pering with the emission control system himself, so it appears unlikely that
the Congress would have prohibited him from causing that it be done.
Our reading of the statute differs from Dr. Shutler's in that we construe it
to prohibit a manufacturer or dealer from tampering and also to prohibit
any person from causing a manufacturer or dealer to tamper. We consider
that the proscribed act defined by the Congress incorporated the actors of
principal concern, i.e., the manufacturers and dealers.
There is support for our reading of the section in the Conference Report 2/
on the 1970 Clean Air Amendments which added the subject language. TEe
conferees describe the amended §203 as follows:
Section 203 generally follows the provisions of the House Bill except
that prohibited acts are added relating to. ... knowing removal of
devices by the manufacturer or dealer (emphasis added).
21 H.R. Rep. No. 1783, 91st Cong., 2d Sess. 50(1970).
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The specific identification of manufacturers and dealers does not appear to
us to be consistent with a legislative purpose to extend the prohibited acts
(through causation by the dealer or manufacturer) to tampering by other
unspecified persons.
While it is not clear why the Congress was unwilling to extend the tampering
prohibition to all persons, it may have felt that it was unnecessary or
impractical to do so since presumably vehicle owners would take their cars
to dealers if they wished to have a control device removed or rendered in-
operative. Congressional failure to extend the prohibition to vehicle owners
and other is no more understandable than their reluctance to ban tampering
by independent garages and service stations.
Regarding the proof of causation, if you wish we will provide some general
guidance. It is likely that each prospective case may require some research.
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COMPLEX SOURCES
TITLE: Complex Sources
DATE: March 26, 1973
MEMORANDUM OF LAW
FACTS
You have requested that this office provide an opinion regarding the legal
basis for a complex source provision and also provide you with some back-
ground as to exactly how this type of provision is connected with the recent
NRDC suit on transportation controls and maintenance of national ambient
air quality standards. Accordingly, the memorandum is divided into two
sections. The first part discusses the legal issue and the second explains
the connection between the implementation of the complex source requirement
and the NRDC suit.
ISSUE
Does the Clean Air Act authorize EPA to require that States review the loca-
tion of "complex sources"?*/
ANSWER
Not only is such a provision authorized by the Act, but in the opinion of
Program personnel, is required in order to insure that ambient air quality
standards are maintained.
DISCUSSION
1. Section 110 of the Clean Air Act, which sets forth the requirements for
implementation plans, does not specifically require that States approve the
location of any new source except those covered by new source performance
standards under §111 of the Act (see §110 (a)(2)(D) and §110 (a)(4)). However,
in its August 14, 1971 regulations setting forth requirements for the prepara-
tion, adoption, and submittal of implementation plans, EPA explained and
interpreted the statutory requirements and added certain requirements which
the Agency, based on its expertise in the field, believed were necessary
to accomplish the Act's purpose. In the case of most of the requirements
that were in the regulations but not specifically set forth in the Act, the
legal basis was the language of §110(a) (2) (B). That paragraph requires
that the plan, in addition to the emission limitations, etc., contain "such
other measures as maybe necessary to insure. .. . "the attainment and main-
tenance of the national ambient air quality standards, "... including, but
not limited to, land-use and transportation controls", [emphasis supplied]
[7 A complex source is generally one that generates activities which emit
air pollution. It may or may not emit air pollutants itself. Examples
would be shopping centers, stadiums, etc.
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2. From the time of enactment of the law the Program's position was that one
of the "other measures" necessary to assure the achievement and mainte-
nance of the national standards was a provision requiring an assessment of
the affect on air quality of new sources prior to the time they begin operation.
If it was determined that a source would cause a violation of or interfere
with attainment to a national standard, the construction and operation of that
source wouldbe prohibited. This would be true even though the source might
be in compliance with any specific emission regulation applicable to it. Sec-
tion 51.18 of the regulations required States to have a procedure to determine
whether the construction or modification of "stationary" sources would re-
sult in violations of the control strategy or interfere with attainment or main-
tenance of the national standards. It is the firm opinion of this office that
any challenge would not have been successful provided the program could,
and we believe they can, substantiate their position that there is no way to
insure that ambient standard's will be maintained unless some responsible
agency is examining the number and location of new sources in a region.
3. The requirement of the regulations discussed above refers to "stationary
sources". Although the term "stationary source" is not defined generally
in the Act or in the regulations in Part 51, in §111(A)(3), for the purpose
of that Section, it is defined as any building, structure, facility or installa-
tion which emits or may emit any air pollutant. The implementation plan
requirement has generally been interpreted by the States, without objection
by EPA, as only requiring the review of location and control design of the
conventional stationary sources, i.e. power plants, steel mills, etc., i.e.
those new sources, generally industrial, which, by their own operations,
cause the emissions of significant amounts of pollutants. The State plans
that were approved in response to this regulation had specific categories
of sources which would be subject to the review procedure. Although types
of sources covered by the new source review provisions varied from region
to region, no State included a procedure for examining the air pollution effects
of sources other that the conventional stationary source.
4. From the above discussion, we think it is apparent that the failure of
EPA to require the States to review the location of sources other than the
conventional stationary sources cannot be defended. The statute's require-
ment that the plan contain the measures necessary to achieve and maintain
the standards has been interpreted by the Agency as requiring the review
of the locations of a certain group of sources. There is evidence that other
types of .sources can have just as significant an impact on air quality. Ac-
cordingly, we have no doubt that a regulation which the Program can support
as necessary to attain or maintain the national standards is authorized under
§301(a) and §110^of the Act. The Agency has already expressed its views
on the need for such a regulation. We see no legal basis for resisting a
suit to compel EPA to expand its current requirements to include complex
sources.
5. Two additional points should be made. First, included in §110(a) (2) (D)
is the legal authority discussed above, is the authority to use land-use
controls to meet the standards. While it is not clear whether the complex
source provision should be characterized primarily as a land-use provision,
to the extent that it will preclude the location of certain new sources in
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certain areas, it does have an effect on the use of land. To that extent,
both EPA's earlier requirement for new source review and a complex source
provision are authorized by this specific provision of the Act. Second, this
office does not have a clear idea of how significant this provision may be.
It is our under standing that pollution levels generated by some of the complex
sources may not in fact be great, and that there may not be many cases
where planned activities have to be curtailed or abandoned because of this
provision.
THE NRDC SUIT
Before explaining NRDC's involvement in this matter, it is necessary to
examine very briefly the Agency's action with respect to the law's require-
ment that State plans insure that the standards be maintained. In its August
regulations for the submission of plans, EPA required (§51.12) that a State's
control strategy had to provide for whatever reduction in pollution was neces-
sary for attainment and maintenance of the standards. This reduction had
to include the degree of emission reduction necessary to offset emission
increases that could reasonably be expected to result from projected growth
of population, industrial activity, motor vehicle traffic or other factors.
In reviewing the plan, it became apparent that neither the States nor EPA
could meaningfully project very far into the future concerning the growth
factor. Moreover they were extremely difficult questions concerning this
approach. For example, for how many years would growth have to be pro-
jected? Would present emission limitations have to be based on maintenance
of the standards at that date ? If the State could accurately project growth,
the resulting emissions, and air quality in 1990, would present emission
limitations have to be set so stringently that all of that projected growth
could be allowed? Neither the States nor EPA was equipped to answer these
questions or to make the necessary projections. Accordingly, in its May 31
Federal Register publication approving and disapproving State plans, EPA
indicated that the growth projection approach was based on many tenuous
assumptions. The Agency admitted it had reviewed plans to make certain
that the standards would in fact be achieved, i.e., that the growth during
the next two or three years would not interfere with the achievement of the
standards. It also pointed out that State and local governments should have
the opportunity to plan and control growth in a manner best suited to their
needs. Finally, the publication stated that, in effect, if States had failed
to adequately provide for growth beyond the date for achievement of the
national standards, the requirement that they prevent the construction or
modification and operation of any stationary source at a location where its
emissions would prevent the maintenance of the standard was sufficient to
insure that the standards be maintained.
The National Resources Defense Council, Inc. (NRDC) suit was primarily
aimed at EPA's actions with respect to transportation controls and two-year
extensions. It also attacked our actions with respect to insuring that the
national standards would be maintained. The suit was not the first time
questions had been raised about the adequacy of EPA's requirements re-
garding the review of new sources. It had become apparent to a number of
people, both inside and outside the Agency, that the "complex source" problem
existed, and that by and large there was no means of controlling certain
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activities which might cause violations of the standards. Specifically, a group
of people opposing the Hackensack, New Jersey complex had raised this
problem with EPA and the State of New Jersey, and had called upon EPA to
remedy the situation.
Basically, NRDC was interested in two things, both of which were argued
in their brief. The first was the complex source provision. The second was
the long term growth projection that States should be required to do in order
to start planning measures to prevent the violation of the standards over the
next 15-25 years.
The Court apparently never focused on this issue, and asked questions on it
in oral argument. However, in the last paragraph of the order, the Court
indicated that it recognized that there were competing contentions with respect
to the plan's adequacy for maintenance of the standards. It ordered the Agency
to review the maintenance provisions of all State plans. It further required that
within 30 days, any plan that did not adequately provide for maintenance of the
standards be disapproved. The order went on to require that where plans
were disapproved, the States had to submit new plans by April 15, 1973.
It was immediately apparent that the time schedules in the order were unrea-
sonably short. Had they been compiled with, the State would had had to
prepare new implementation plans for maintenance by April 15, 1973; two
months later we would had had to approve or disapprove those plans.- Accord-
ingly, we entered into discussions with NRDC's attorney. After intensive
discussions we were able to convince him that his insistence on the growth
projection approach was neither feasible nor productive in view of the current
state of knowledge and abilities of the States and EPA. Inasmuch as the
Agency had been considering the complex source provision, and because we
felt that we could not legally resist the application of this type of requirement,
we were able to convince NRDC to commit itself to being satisfied solely
with the complex source provision. Moreover, NRDC agreed to a modifica-
tion of the order, permitting EPA to propose the requirement for the complex
source regulation, take comment on it, and promulgate it. This would allow
States to then submit plans which contain comparable provisions for our appro-
val instead of requiring a Federal promulgation. While still keeping time
pressure on EPA, the agreement did permit both the Agency and the States
to face the issue more intelligently that the original order would have allowed.
As part of this agreement, EPA gave advance notice of propose rulemaking at
the same time that we disapproved plans as to maintenance. This has the
effect of allowing States to start reviewing their legal authority and examining
their own regulations to see what might be needed after final promulgation by
EPA. In all of these discussions, both the Office of Air Programs and OGC
were present.
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AIRCRAFT
TITLE: Applicability of Clean Air Act and Executive Order 11507 to
Publicly-Owned Aircraft
DATE: February 28, 1972
MEMORANDUM OF LAW
ISSUE #1
Is the Administrator of the Environmental Protection Agency authorized by
section 231 of the Clean Air Act to set emission standards applicable to
emissions from aircraft or aircraft engines which are publicly-owned in-
cluding aircraft engines owned and used by the military? l_f
ANSWER #1
Section 231 of the Clean Air Act does not authorize the Administrator to
prescribe emission standards for publicly-owned aircraft or air craft engines.
ISSUE #2
Does section 118 of the Clean Air Act require Federal departments and
agencies to comply with State and local emission standards which are appli-
cable to publicly-owned aircraft?
ANSWER #2
States and local governments are prohibited by section 233 of the Act from
adopting or attempting to enforce any aircraft emission standards unless
they are identical to Federal emission standards prescribed under section
231. Since Federal aircraft emission standard-setting authority governments
are likewise precluded from prescribing emission standards applicable to
public aircraft. Consequently, section 118 imposes no duty upon Federal
departments and agencies owning and operating aircraft to comply with State
and local aircraft emission standards.
ISSUE #3
Does Executive Orderll507 require Federal departments and agencies owning
and operating aircraft to comply with State and local aircraft emission stan-
dards?
£/ The memorandum does not discuss the separate issue of the duty of
Federally-owned and operated aircraft to comply with State transpor-
tation controls adopted as part of an implementation plan pursuant to
section 110 of the Clean Air Act.
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ANSWER #3
Executive Order 11507 only requires Federal departments and agencies to
comply with applicable State and local emission standards. Since section
233 effectively precludes States and local governments from applying emis-
sion standards to publicly-owned aircraft, Executive Order 11507 does not
require Federally-owned and operated aircraft to comply with State and local
emission standards.
DISCUSSION
1. Section 231{a)(2) of the Clean Air Act provides,
Within 180 days after commencing [the study required under para-
graph (1)], the Administrator shall publish a report of such study
and investigation and shall issue proposed emission standards appli-
cable to emissions of any air pollutant from any class or classes of
aircraft or aircraft engines, which in his judgment cause or con-
tribute to or are likely to cause or contribute to, air pollution which
endangers the public health or welfare. ,
Paragraph (3) of subsection (a) requires the Administrator to issue final
regulations within 90 days after issuance of proposed regulations.
2. On its face, the grant of authority in paragraph (2) appears broad enough
to permit the application of emission standards to any type of air craft, includ-
ing publicly-owned aircraft (such as military planes), if in the judgment of
the Administrator such control is necessary to protect the public health or
welfare. However, the legislative history of this provision indicates that
such standards may only be applied to civil (i.e.; not publicly-owned) air-
craft.
A new Part B of Title II, added by the conference agreement,
provides authority for the Administrator to prescribe emission
standards for civil aircraft and aircraft engines. 2j
While the Senate-passed bill would have authorized the application of Federal
aircraft emission standards to military and other publicly-owned aircraft,
the conferees adopted the approach of the House-passed bill, which did not
include authority to prescribe emission standards for military aircraft.
3. Section 233 of the Act provides,
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.
2/ Congressional Record (daily ed. )."Pe^ember 18, 1970, S. 20602.
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The effect of this provision is to limit State and local authority to prescribe
air craft emission standards to standards which are identical with the Federal
standards under section 231, Since Federal emission standard-setting author-
ity does not extend to publicly-owned aircraft, States and local governments
are effectively precluded from applying emission standards to Federally-
owned (and other public) aircraft.
4. Section 118 of the Act provides,
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, and interstate,
and local requirements respecting control and abatement of air
pollution to the same extent that any person is subject to such
requirements.
The import of section 118 is that Federal facilities and property must comply
with applicable Federal, State, local, and interstate requirements to the
same extent as any other person. However, since section 231 emission
standards may not be applied to publicly-owned aircraft, section 118 imposes
no requirement that military aircraft comply with Federal emission stan-
dards prescribed under section 231. 3/ Likewise, since identical State and
local aircraft emission standards may" lawfully apply only to civil aircraft,
section 118 does not require military and other publicly-owned aircraft to
comply with State or local emission standards.
5. Executive Order 11507 provides in part,
Sec. 4. Standards. (a) Heads of agencies shall ensure that
all facilities under their jurisdiction are designed, operated, and
maintained 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. . . . Federal facilities
shall also conform to the performance specifications provided for
in this order.
Subsection 2(c) of the Order defines "facilities" to include "aircraft.. .owned
by or constructed or manufactured for the purpose of leasing to the Federal
Government". Subsections (d) and (e) define "air and water quality standards"
and "performance specifications", respectively.
3/ If Congress had wanted to compel all publicly-owned aircraft or all military
aircraft to comply with emission standards set by Administrator, it could
and would have done so in section 231 of the Act.
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(d) The term "air and water quality standards" shall mean respec-
tively the quality standards and related plans of implementation,
including emission standards, adopted, 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 permis-
sible limits of emissions, discharges or other values applicable
to a particular Federal facility that would, as a minimum, pro-
vide for conformance with air and water quality standards as de-
fined herein.
6. Apparently, Executive Order 11507 contemplated that Federally-owned
aircraft (including military aircraft) would comply with applicable State
emission standards designed to permit compliance with ambient air quality
standards. However, the Executive Order was adopted on February 4, 1970,
nearly 11 months prior to enactment of the "Clean Air Amendments of 1970".
Sections 231 and 233 of the Act, as thereby amended, effectively prohibit
State and local governments from applying emission standards to publicly-
owned aircraft. Since the Executive Order only requires compliance with
applicable emission standards, Federally-owned aircraft are not required
by Executive Order 11507 to comply with State or local emission standards
which are only applicable to civil aircraft.
§§§§§§§
TITLE: Administrator's Certification: Airport and Airways Act
DATE: Ausust 1, 1972
MEMORANDUM OF LAW
FACTS
Your memorandum of May 22, 1972 raises the need for interpretation of
§16(e) of the Airport and Airways Act (42 U.S. C. 1716(e)), as well as the
issue of EPA's involvement in certain actions called for by that Act.
Several EPA regional offices have been asked by the Department of Trans-
portation to certify that proposed airports, runways, or runway extensions
will be located, designed, constructed and operated so as to comply with
air quality standards promulgated by the Secretary of Health, Education,
and Welfare. The Regions have requested guidance from your office con-
cerning the manner in which they should respond to these requests.
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QUESTION #1
Is the Agency charged with the responsibility for carrying out duties assigned
to the Secretary of Health, Education, and Welfare under the Airport and
Airways Act?
ANSWER #1
Yes. Section 2(a)(3) of Reorganization Plan No. 3 of 1970 (3 CFR 1970
Comp. p. 199) transferred to the Administrator of the newly-formed Environ-
mental Protection Agency all "functions vested by law in the Secretary of
Health, Education, and Welfare. . .which are administered through the En-
vironmental Health Services, including. . .the National Air Pollution Con-
trol Administration. . ." Since all matters involving air pollution and air
quality standards were administered through NAPCA, EHS, it follows that
the Airport and Airways Act responsibilities were transferred to EPA.
QUESTION #2
What is the meaning of the term "air quality standards", as used in the
Airport and Airways Act?
ANSWER #2
We conclude that the term refers to national ambient air quality standards
and State implementation plan requirements approved or promulgated by
EPA to attain and maintain those standards.
DISCUSSION
1. The Airport and Airways Act (49 U.S.C. 1701 et seq.) authorizes the
Secretary of Transportation to approve and fund the construction of airport
development projects by public agencies. Air quality considerations are
imposed upon the Secretary by §16(e) of the Act, as follows:
"(1) The Secretary shall not approve any 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. . . quality standards. In any
case where such standards have been promulgated by. . . the Sec-
retary of Health, Education and Welfare, certification shall be ob-
r. tained from the. . .Secretary [HEW]. Notice of certification or of
refusal to certify shall be provided within sixty days after the pro-
ject application is received by the Secretary.
(2) The Secretary shall condition approval of any such project
application on compliance during construction and operation with
applicable air. . .quality standards." (emphasis added)
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The underscored term "air quality standards" is not defined in the Act or
its legislative history, but it is the term which was used in §108 of the Clean
Air Act in effect at the time §16(e) was enacted on May 21, 1970. I/ Subse-
quent to that date, the Clean Air Act was amended and the term "air quality"
was no longer used. ('The questions regarding construction of §16(e), there-
fore, are (1) Was the term "air quality standards" intended to have the
meaning given it in §108 of the Clean Air Act? (2) What was the effect of the
1970 amendment of the Clean Air Act upon the requirements of §16(e)?
2. The Clean Air Act, until amended December 31, 1970, provided that
States should adopt ambient air quality standards for various air pollutants,
and implementation plans adequate to achieve and maintain those standards.
These standards and plans were subject to approval by the Secretary of
Health, Education, and Welfare and, where either was not approvable, the
Secretary was to promulgate substitute ambient air quality standards or im-
plementation plans necessary to protect public health and welfare. The
combination of ambient air quality standards and pertinent implementation
plans, whether they were adopted by a State and approved by the Secretary or
promulgated by the Secretary, constituted the applicable "air quality stan-
dards" for the region involved. From the context in which "air quality
standards" was used in the Airport and Airways Act, it is relatively clear
that the Congress was referencing the standard-setting and implementation
scheme of the Clean Air Act. Moreover, since there is no indication present
that any other meaning was intended, it is consistent with established prin-
ciples of statutory construction to conclude that legislative adoption of a
previously-used term was intended.
Under the program so established, the Secretary of Transportation would
have sought certification of compliance from the Governor of the State with
respect to any approved ambient air standards and from the Secretary of HEW
with respect to promulgated ambient air standards. The same procedure
would have pertained regarding implementation plan requirements.
3. With the enactment of the Clean Air Act Amendments on December 31,
1970, the existing approach of attaining ambient air quality standards by
means of State implementation plans was not altered, but the emphasis was
changed to the extent that the amended statute provided for Federal adoption
of ambient air quality standards having national applicability. The Airport
and Airways Act was not amended to reflect this change. However, the
change does no violence to the legislative purpose as evidenced in §16(e) and
discussed above. Examining the two laws together, we find no reason to
conclude from the language of either act or its legislative history that any
fundamental change in the certification scheme was intended or should be
found as a matter of necessary implication.
4. The effect of the Clean Air Act amendment is to require the Secretary
of Transportation to in all cases look to the Administrator for certification
regarding compliance with national ambient quality standards. With respect
to implementation plans, the certification procedure is unchanged.
5. We are available to discuss with you and regional personnel the applica-
tion of our conclusions to individual cases.
\J the popular name of the 1967 amendments to the Clean Air Act was the
"Air Quality Act of 1967".
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FUEL AND FUEL ADDITIVES
TITLE: Authority to Regulate Fuels and Fuel Additives
DATE: April 30, 1970
QUESTIONS
1. Pursuant to Section 211 of the Clean Air Act, may the Administrator re-
quire the registration of fuels other than those intended for use in motor
vehicles.
2. Does Section 211, or any other section of the Clean Air Act, permit the
Administrator to regulate and/or prohibit the manufacture of fuels and
additives other than those intended for use in a motor vehicle ?
ANSWERS
1. The Administrator is authorized to require the registration, prior to
sale or introduction into commerce, of all fuels or additives without
regard to their intended use.
2. Neither Section 211 nor any other section of the Clean Air Act authorizes
the direct regulation of the composition or sale of fuels other than those
manufactured for use in motor vehicles. The Clean Air Amendments
of 1973 provided the Administrator certain authority under the Federal
Aviation Act of 1958 (49 U. S. C. 1421) to make determinations relevant
to aviation fuel standards to be prescribed by the FAA.
DISCUSSION
The 1967 Clean Air Act contained authority to register fuels, including
"fuels used for purposes other than motor fuels" (Section 210). This pro-
vision was retained in the House version of the 1970 Act, together with
expanded powers as to the regulation of fuels. The Senate bill, in Section
212, recited that the Administrator could "designate any fuel or fuels for
use in vehicles and engines" for purposes of requiring registration. How-
ever, the Senate report raised a question as to whether the Senate in-
tended to limit the registration authority to motor vehicle fuels. While in
the "Discussion of Intent" (: g. 33), the report states that "under the proce-
dure that would be established by the Committee bill, the Secretary could
require the registration of any fuel that is used for vehicles" (emphasis
supplied), in the report's "Section by Section Analysis" (pg. 64), it is stated
that the new section "continues the present provisions of Section 210 of the
Clean Air Act concerning the registration of fuels and fuel additives. " !_/
Any doubt raised by the Senate bill and report was resolved in the
law as enacted. Section 211 (a) of the Act provided without qualifica-
tion that "the Administrator may . . . designate any fuel or fuel ad-
ditive. ..."
~TJ There is additional confusion in the Senate report in that contrary to
~ the quoted phrase, the bill itself did not authorize the registration of
additives.
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The conference report, in its discussion of the registration authority, pro-
vides, "existing provisions of the law relating to registration of fuels and fuel
additives are retained with some revisions. The revisions referred to are
changes in the Administrator's authority to obtain information. Had the con-
ferees intended to limit the registration provision to motor vehicle fuels, it
would only have been necessary to adopt the Senate language. Accordingly,
the basic authority remains that contained in the '67 Act, viz, the authority
to require the registration of all types of fuels.
The legislative history which was reviewed to respond to your first ques-
tion reveals nothing that would cast doubt on the clear meaning of Section
211(c)(l) which authorizes only the regulation of fuels or additives "for use
in a motor vehicle or motor vehicle engine. " While the House bill apparently
did extend the Administrator's regulatory to fuels other than those used in
motor vehicles, there is no question that the conference decided to limit the
Administrator's authority to controlling or prohibiting the manufacture or sale
of "any motor vehicle fuel or fuel additive. " Moreover, there is no other
authority in the Clean Air Act under which the Administrator could directly
regulate the manufacture or content of other fuels or additives. While the
promulgation of standards both by the Federal Government and by States,
as part of their implementation plans, may have the effect of regulating fuel
composition, the Administrator may not directly prescribe such prohibitions
or limitations, unless and until further legislative authority is granted.
In the same memorandum in which the 2 questions discussed above are asked,
you inquire as to the scope of the authority of the Administrator to require
manufacturers to conduct tests or research regarding emissions of their ef-
fects on public health or welfare. This is a more complicated question that
has been previously asked by another component of APCO within the next week.
§§§§§§§
TITLE: Registration and Regulation of Fuels and Fuel Additives
DATE: September 23, 1971
FACTS
1. Section 211 of the Clean Air Act authorizes the Administrator to regis-
ter all fuels and fuel additives and to regulate motor vehicle fuels and fuel
additives. As part of the registration process (section 2il(b)), the Adminis-
trator may require a fuel or additive manufacturer to submit certain informa-
tion regarding a fuel or additive, including information on emissions result-
ing from use of an additive in a fuel. OAP proposed that EPA, by regulation,
require fuel or additive manufacturers seeking registration requirements
will necessitate research and testing by the manufacturers.
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2. Under Section 211, the Administrator may regulate motor vehicle fuels
and additives either on the basis that their emission products endanger
public health or welfare, or if their emission products impair the perform-
ance of motor vehicle emission control systems. In promulgating regulations
on the former basis, the Administrator must consider relevant medical and
scientific evidence, including alternative approaches to "achieving emission
standards under section 202" of the Act.
QUESTIONS
1. Under section 211(b)(2), may the Administrator require from fuel and
additive manufacturers information on emissions and emissions effects, re-
sulting from the use of fuels and additives, where such requirements may
necessitate development of data by the manufacturer through research and
testing?
2. Pursuant to section 211(c)C>)(A), must the Administrator promulgate a
motor vehicle emission standard for a pollutant under section 202 of the
Act as a prerequisite to controlling or limiting by regulation any component
of a fuel or additive whose use results in the production of that pollutant?
ANSWERS
1. Section 211(b)( ) will support requirements, as a part of the registration
process, that fuel or additive manufacturers develop and supply to the Ad-
ministrator information on the emissions and the effects on motor vehicle
emission control performance and on public health and welfare which result
from the use of the fuel or additive to be registered, where such requirements
do not necessitate research or testing by the manufacturers involving test
methods and procedures which are not already established and generally
accepted in the scientific community.
2. Section 211(c)(2)(A) does not require the Administrator to adopt a motor
vehicle emission standard for a pollutant as a prerequisit to promulgate a
fuel or fuel additive regulation for the purpose of controlling the pollutant.
Instead, it requires the Administrator to consider the relative technological
and economic feasibility of alternate approaches to the desired control of a
specific emission product. A requirement that the Agency first promulgate
an emission standard requiring motor vehicle manufactuires to design, de-
velop, and construct control systems or devices, and only then consider
whether the emission limitation could more efficaciously be achieved by
fuel or fuel additive regulation would establish an inverse regulatory scheme
which is impractical and unreasonable.
DISCUSSION
The subject of the first Question was the source of a major confrontation
between the Department of Health, Education, and Welfare and the members
of the American Petroleum Institute and the Manufacturing Chemists Associ-'
ation. DHEW-NAPCA proposed regulations (34 F.R. 12447, July 30, 1969)
for fuel additive registration which would have required fuel and additive
manufacturers to develop and submit extensive information on the interaction
of additives with fuels, the characteristics of emission products resulting
from additive usage, and the toxicity or injurious effects of such products.
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Through formal comments and in meetings with DHEW officials, API, MCA,
and their members argued that the Secretary lacked authority under the 1967
Clean Air Act to promulgate the proposed information requirements. In
support of their contention that Congress intended to impose only very limited
information requirements on the manufacturers, API and MCA pointed to the
conferees' rejection of the language of the House bill authorizing the Secretary
to require manufacturers to provide ". . .such information as to the char-
acteristics and composition of any fuel additive for any fuel as the Secretary
finds necessary, and including assurance that such additional information
as the Secretary may reasonably require will upon request be provided. . . ",
and adoption instead of the Senate bill's provisions authorizing less extensive
information gathering. !_/
The latter set forth a list of required information which is virtually identical
to the language now in 211(b)(l). Following extended discussion, 2_/ the dis-
puted requirements were dropped from the regulations promulgated June 13,
1970 (35 P.R. 9282), and replaced by requirements for summaries of existing
information which the manufacturers possess concerning additives and their
effects, which must be updated as the manufacturers develop additional infor-
mation.
The Administration's bill (H. R. 15848) proposed the following amendment
to remedy the apparent lack of legal authority to require the development of
information:
"For the purpose of establishing standards under section (b) [au-
thorizing regulation of fuels and additives], the [Administrator]
may require the manufacturer of any fuel or fuel additive to furnish
such information as is reasonable and necessary to determine the
emissions resulting from the use of the fuel of fuel additive or
the effects of such use on the performance of any emission con-
trol device or system which is in general use or likely to be in
general use. . .for the purpose of preventing or controlling motor
vehicle emissions. . . If the information so submitted establishes
that toxic emissions or emissions of unknown or uncertain toxicity
result from the use of the fuel or fuel additive, the [Adminis-
trator] may require the submission within a reasonable time of
such scientific data as the [Administrator] may reasonably pre-
scribe to enable him to determine the extent to which such emis-
sions will adversely affect the public health or welfare. "
I/ A legal opinion submitted with Ethyl Corporation's comments appears
~ to concede that the House bill's language would have authorized the pro-
posed information requirements.
2/ In the course of these discussions, the Office of the General Council,
DHEW, reassessed its earlier interpretation of section 210 on which the
proposal had been based, and determined that the authority to require
the information involved was not sufficiently clear to support the reg-
ulation as proposed.
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This provision was intended to give the Administrator broad information
gathering authority under a two-step approach: first, requiring development
(if necessary) and submission of information identifying emission products,
and second, requiring in appropriate instances, additional information to be
developed on adverse health or welfare effects of such emission products.
The House rejected the Administration's approach, and instead authorized
the Administrator, in connection with his authority to regulate fuels and addi-
tives, to require fuel, additive, and motor vehicle 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".
The Senate Committee on Public Works considered the Administration's bill
(S. 3466, identical to H. R. 15848), and the House bill, and reported a bill
(S. 4358) which contained language on information-gathering virtually iden-
tical to that of section 211 of the Act. In so doing, the Senate Committee
adopted almost verbatim the Administration bill's language which authorized
requiring "reasonable and necessary" information to determine emissions
and effects on emission control devices, but added to those two categories,
information regarding effects on public health. The Committee's bill did
not follow the pattern of the Adminsitration's bill by next providing for a
second step of information gathering on health and welfare effects, but pro-
vided separately in the same subsection for authority to require fuel and
additive manufacturers to test to determine "potential public health effects"
of fuel and additive use.
In the explanation of its bill's provisions, the Committee made this statement:
"The bill would authorize a system under which the Secretary shall
seek and receive information to assist him in determining the po-
tential affect (sic) of a particular fuel on the public health and
welfare or on operation of an emission control device. " (S. Rep.
No. 91-1196, p. 33)
Although the word "potential" was used, it is apparent that this statement
described all of the information-gathering provisions of the section, not just
the paragraph mentioned above which is limited by its terms to "potential
public health effects". With respect to the language on "information. . .
reasonable and necessary to determine" the emissions and their effects, the
Committee said that ". . .the [Administrator] could request added informa-
tion from the manufacturer on the effects of emissions and evaporation of
fuel. " The Committee made no mention of restricting the Administrator to
requiring already developed information, as the House had done.
The only further explanation of the Senate's action in the legislative history
was provided by Senator Baker, a member of the Committee, in his dis-
cussion of the bill before the full Senate:
"The committee bill provides that any manufacturer of a vehicle fuel
must. . . disclose to the Secretary, among other information, the
composition of the fuel and the products of the combustion of the fuel."
(116 Cong. Rec. 16110, daily ed., Sept. 21, 1970)
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The conference committee, whose bill became law without amendment, a-
dopted the informational requirements of the Senate bill, slightly rearranged,
and added information on welfare effects to the list of "information. . .rea-
sonable and necessary" to determine emissions and effects:
"Section 211(b)(2)--
For the purpose of registration of fuels and fuel additives, the Ad-
ministrator 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, carcinogenic, terato-
genic, 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 recommended pur-
pose-in-use of such additive, and such other information as is reason-
able and necessary to determine the emissions resulting from the use
of the fuel or additive contained in such fuel, the effect of such fueT
or additive on the emission control performance of any vehicle or ve~
hide 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."
[emphasis added]
The conference report provides little guidance to the conferees' assessment
of the authority provided in the conference bill; it merely states that existing
law on registration of fuels 3_/ and additives was". . .retained with some
revisions. " In the "Discussion of Key Provisions" presented by the Senate
conferees to the full Senate, it was noted (116 Cong. Rec. 20601, daily ed.,
December 18, 1970) that the conference bill provided". . . added informa-
tion-gathering powers in the registration of all fuels and fuel additives. " [em-
phasis added] Clearly, the authorization to require testing on potential health
effects "added" to the authority in existing law, as it was construed by DHEW
in the promulgation of the additive registration regulations on June 13. Like-
wise, the authority to require the submission of analytical techniques for de-
tection and measurement of an additive in a fuel was new.
The question is whether the information-gather ing authority described in the
underlined portion of 211(b)(2)(B) quoted above, was also intended to expand
the existing law. We conclude that it was, since the conferees did not
adopt tiie House's language expressly limiting the Administrator to informa-
37 The registration of fuels was not authorized under the 1967 Act.
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tion "already developed", but instead adopted the "reasonable and nec-
essary" 4/ language from the Administration's bill, as modified by the
Senate. Moreover, since the information dealt with in the underlined
language is basically that required in the "summaries of existing in-
formation" sections in the DHEW-adopted regulations, the Congress could
have adopted the regulations' wording, as was done with other regulations
elsewhere in the Act, to restrict the Administrator to existing data.
The approach of section 211(b)(2), evidences the Congress' recognition
that certain basic information could readily be developed by test methods
and procedures having general acceptance in the scientific community
(e. g., ASTMO, while in the area of more esteric information concerning
"potential" health effects, test procedures and research parameters are
not well established or generally accepted. It was felt that the more
difficult and expensive research burden should not be imposed upon the
manufacturers until such time as the Administrator had prescribed speci-
fic protocols and procedures for conducting the research. -<.
The Administrator's requirements under the fuel/additive registration re-
gulations now being prepared must be reasonable, both in terms of the
type and amount of information required and the time allowed to develop
it. Accordingly, across-the-board requirements should be avoided where
not appropriate. The regulations should include a provision establishing
a basis for waiving certain general informational requirements where the
manufacturer can demonstrate to the Administrator's satisfaction that
the requirement or time limit is unreasonable or inappropriate as applied
to him.
The regulations should also include a provision that, where information
must be developed by a manufacturer, opportunity for consultation with
the Administrator's representatives will be provided to identify methods
and establish timetables for submitting the information. This^would allow
the registration of the fuel or additive pending information development
and submission, subject to withdrawal of registration if the timetable is
not met.
¥/ The use of these terms indicates a broad grant of discretionary au-
thority. "Reasonable" has been discussed in the following manner:
"When employed to describe the means which are used to achieve
a legitimate end it suggests not necessarily the best or only meth-
od, but one fairly appropriate, at least under all the circum-
stances, and when used in connection with legislative measures
it signifies such measures as are fit and appropriate to the end
in view." (75 C.J.S. Reasonable p. 635, cited in National Steel
and Shipbuilding Co. v. U.S., 419 F. 2d 863, 876 (1969).
And "necessary" is defined as follows:
"It may import absolute necessity or inevitability or it may im-
port that which is only convenient, use appropriate, suitable, pro-
per or conductive to the end sought." (Black's Law Dictionary,
4th Ed., 1951).
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TITLE: Regulation of Lead as a Fuel Additive
DATE: May 25, 1971
FACTS
We have reviewed the staff paper of April 1 5, 1971, entitled The Regula-
tion of Load as a Fuel Additive, and have considered the points raised
therein which are concerned with or require interpretations of Section
211 of the Clean Air Act.
QUESTIONS
1. May the Administrator, in promulgating a regulation on gasoline lead
content under the authority of section 211(c)(l)(A) of the Clean Air Act,
provide for the retention of such load as is necessary to meet the octane
demands of higher compression vehicles now in use, or necessary to pre-
vent valve seat damage to vehicles ?
2. Does section211 (c)(2)(A) require the Administrator, as a prerequisite
to promulgating a lead regulation, to find that a motor vehicle emission
standard under section 212 of the Act would not be as technologically or
economically feasible in preventing lead emissions?
3. Does the Administrator have the authority to prohibit gasoline retailers
and other persons from pumping leaded gasoline into vehicles which are
designed for operation as lead-free gasolines?
ANSWERS
1. We are unable to find legal support for regulation of gasoline lead
content based on endangerment to public health which provides for the
retention of lead for reasons not related to the protection of health. Like-
wise, regulation of lead based on endangerment to welfare may not provide
for the rentention of lead for reasons not related to the protection of wel-
fare. In the latter case, however, retention of lead to meet octane needs
or to prevent valve damage may be justifiable to protect "economic val-
ues", or prevent against "damage to and deterioration of property" since
those terms are included within section 303(h)'s definition of welfare.
2. Section 211(c)(2)A) requires the Administrator to consider any alter-
native technologically and economically feasible approaches to achieving
by imposition of an emission standard under section 202, the degree of lead
emission control which would be achieved by promulgating a lead additive
regulation. A weighing of the technological and economic feasibility of
any such approaches against fuel additive regulation is clearly called for
by the section, but it does not expressly or impliedly establish emission
standards as the'preferential method of control, and^ no finding "that
emission standards would not achieve the same effect" as a section 211
standard is required.
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3. Section 211(c)(l) will support the promulgation of a regulation prohibit-
ing service station personnel and other persons from pump ing leaded gaso-
line into vehicles which are appropriately identified as being designed for
operating on unleaded fuels only. Such action must be based on the
Administrator's determination that emission products resulting from lead
use impair the performance of motor vehicle emission control devices.
DISCUSSION
The staff paper states that regulatory action on leaded gasolines to protect
the health or welfare should "elimiate all unnecessary emission of lead
into the atmosphere". Unnecessary lead is discussed as that which is
(1) not needed to produce octane ratings sufficent for operating high com-
pression engine vehicles now on the road, or (2) not needed to protect
engine valve seats of vehicles now in use.
This line of thinking suggests a proposed regulation in which the Adminis-
trator would state that he has determined that lead emissions from auto-
mobiles endanger public health, but that his standard(s) would be designed
to accommodate "needed" lead. Implicit in such an approach is an admis-
sion by the Administrator that he is not able or unwilling to specify how
much lead must be eliminated to protect health. If lead or any other
additive or fuel component creates a health risk, it is clear that the
Congress intended it be regulated to the extent necessary to remove the
threat. It would not be unreasonable to arrive at that level for lead in
several steps, since the time needed for development or refinery capacity
to supply substitute higher octane fuel must be recognized, but logically
the health protection level must be identified at the offset. Contrary to
the paper's conclusion, we find no support for the indefinite retention of
0. 5 gnis per gallon lead or any other amount unless the Administrator
determines that amount is consistent with the protection of public health.
The precursor to the requirement that the Administrator consider "other
technologically or economically sound means of achieving emission stan-
dards under section 202" was language in the House bill requiring the
Administrator to find that section 202 standards could not be reached
by technologically or economically feasible means other than a fuel or fuel
additive regulation. (This provision clearly would have established motor
emission standards as the preferred regulatory approach). A formal
finding of this nature would have to be recited in the proposal of the fuel
or additive regulation, and would be subject to attack as not being reason-
ably supported by the available information. The Senate bill imposed no
similar requirement. We think that the language adopted by the conferees
is most reasonably interpreted as a compromise between the two bills
whereby the Administrator is required only to weight the relative merits
of available control approaches and choose the one best suited to accom-
plish the goal of protecting health or welfare. Formal findings are un-
necessary. The conferees' "Discussion of Key Provisions" offered on
the Senate floor on December 18, 1970 (Cong. Rec. S. 20602) contained
the following statement regarding the procedures and prerequisite set
forth in their bill for fuel and additive regulation:
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". . .The conference committee wishes to call the Administrator's
attention to the relationship between his functions under this sec-
tion and the emission deadlines stipulated in section 202. It is not
not the intent of the Congress to create a cumbersome, time con-
suming administrative procedure which will delay necessary con-
trols on fuels and fuel additives required to meet these deadlines. "
While this statement does not bear directly upon lead regulation, it cer-
tainly indicates that no finding in any formal sense was intended.
While there is abundant language in the legislative history on section 211
(c)(l) concerning regulations which would impact upon fuel use by control-
ling the refiner or someone else in the manufacturer-wholesaler chain,
we think it is clear from the following language in the conferee's "Dis-
cussion of Key Provisions" cited above that the conference committee
did not intend to preclude the Administrator from imposing regulations
controlling the delivery of the fuel at retail, where such means are best
suited to accomplish the desired limitation:
"The concept of a control or prohibition should be taken to include
requiring design changes in motor vehicles, as well as fuel hand-
ling equipment, to ensure maximum compliance with regulation
specifying acceptable fuel use for various classes of vehicles. "
(emphasis added)
We believe this language evidences the flexibility which Congress intended
to provide the Administrator in this area.
Accordingly, in order to protect the operation of emission control systems
whose performance would be impaired by the emission products of gaso-
line containing lead, the Administrator is authorized under section 211(c)
(1)(B) to promulgate a regulation prohibiting any person from introducing
leaded gasoline into the fuel system of a motor vehicle designed to operate
on unleaded gasolines only. !_/ Implementing such a regulation would ne-
cessitate giving adequate notice concerning the vehicle's fuel require-
ment, presumably by requiring automobile manufacturers to label ve-
hicles appropriately. 2/
l_/ Section 211(d) makes any person who violates a regulation prescribed
under (c) subject to a civil penalty of $10, 000 for each day of violation.
2/ In connection with the development of APCO's proposed regulation re-
quiring an instrument panel label stating lead and octane require-
ments, we advised orally that section 207(c)(3) would authorize a
regulation requiring gas inlet labeling to provide this information which
is relevant to control of motor vehicle emissions.
§§§§§§§
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TITLE: Regulations of Lead and Phosphorus Content of Gasolines
DATE: January 17, 1972
FACTS
Representatives of the Office of Air Programs and the Office of Enforce-
ment and General Counsel have just completed a draft of regulations
which, pursuant to section 211 of the Clean Air Act would, 1) provide
for the general availability of one grade of lead-free and phosphorus-free
motor vehicle gasoline at retail service stations, begining July 1, 1974,
and 2) provide for the phased reduction of lead levels in all grades of
motor vehicle gasolines, begining January 1, 1973.
Controls under (1) above, would be based on the Administrator's deter-
mination that virtually any lead or phosphorus in gasoline will significantly
impair the performance of catalytic emission control devices which will
be installed on 1975 and later model year authomobiles in order to meet
EPA's stringent emission standards. Briefly the controls envisioned are
as follows:
(a) Gasoline refiners would be prohibited, in the production of gaso-
lines of 91 Research Octane Number or less, from using lead
or phosphorus additives, and would be required to dye leaded gaso-
lines and provide clear, uncolored lead-free gasolines;
(b) Gasoline distributors would be prohibited from selling gasoline
represented to be lead-free and phosphorus-free unless it is in
fact lead-free and phosphorus-free;
(c) Gasoline retailers would be prohibited from introducing gasolines
containing lead into motor vehicles equipped for lead-free gaso-
line use only, and would be required to offer for sale at least
one grade of lead-free and phosphorus free gasoline to label
pumps so as to identify gasolines contaning lead and phosphorus,,
to post public notices on the service station premises regarding
the use of gasolines containing lead and phosphorus in 1975 and
later model year vehicles, and to equip gasoline pumps with noz-
zle spouts having specified dimensions and characteristics;
(d) Motor vehicle manufacturers would be required to manufacture ve-
hicles having catalytic emission control devices with gasoline tank
filler inlets of specified dimensions, and to affix a label on the
instrument panel and adjacent to the gasoline tank filler inlet to
inform the owner or operator and the service station attendant that
the vehicle requires lead-free and phosphorus-free gasoline.
Controls under (2) above, would be based on the Administrator's de-
termination that emission products resulting from the use of lead in gaso-
line endanger public health. Under this scheme, by January 1, 1977,
lead levels would be reduced to 1. 25 grams per gallon in premium and re-
gular gasolines. The controls would apply to refiners, distributors, and
retailers.
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In addition, the regulations would provide for entry, inspection and testing
by EPA representatives to determine compliance and would assign liability
for violations of certain provisions of the regulations.
QUESTION
What is the scope of the Administrator's authority to regulate the manu-
facture, introduction into commerce, offering for sale or sale of motor ve-
hicle fuels and additives?
ANSWER
Section 211 df the Clean Air Act provides the Administrator authority to
take all regulatory measures reasonably necessary, as regards the manu-
facture, introduction into commerce, offering for sale or sale of motor ve-
hicle fuels and additives, to ensure the protection of the public health and/or
motor vehicle emission control systems.
DISCUSSION "
1. This section of the memorandum first discusses generally the extent of
the Administrator's regulatory authority under section 211, then deals with
specific provisions of the proposed draft regulations.
2. The relevant language of section 211 appears in paragraph (c)(l), as
follows:
"The Administrator may. . .by regulation, control or prohibit the
manufacture, introduction into commerce, offering for sale, or sale
of any fuel additive for use in a motor vehicle or motor vehicle en-
gine. . . .
We conclude that this authorization empowers the Administrator to impose
all regulations on the manufacture, introduction into commerce, offering for
sale or sale of motor vehicle fuels and additives, which are reasonably nec-
essary to prevent endangerment to the public health or welfare or to the
operation of motor vehicle emission control devices. !_/ Since the quoted
authorization is hot limited nor the terms defined elsewhere in section 211
or in the legislative history of the section, it is reasonable to construe
the words "control" and "prohibit" as having their ordinary meaning,
i. e., their dictionary definition. 2_j
±1 This assumes that the Administrator has satisfied the pertinent require-
ments of section 2ll(c) for establishing the need for regulation.
2/ The verb "control" is defined as meaning "to regulate" and "to exercise
authority over; direct". "Prohibit" means "to refuse to permit; forbid,
as by law". Webster's New World Dictionary, College Edition (1968).
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3. Well-established principles of administration law support the conclu-
sion that the Agency has broad discretion in deciding what regulations should
be adopted to carry out the purposes of section 211. The general rule is
that an administrative agency has the power to adopt regulations to carry
out the policies of the laws which it administers if such regulations have
a reasonable and rational basis. 3/ Reasonableness is determined in view
of the stated objectives of the legislation and the nature of the difficulties
to be overcome. 4/ This regulatory package is comprised of measures
determined to be "necessary to carry out the legislative purposes. In our
opinion, the regulations are consistent with those purposes, would not have
the effect of altering or amending the law, and are designed to deal with
predictable problems inherent in the statutory scheme.
4. A major feature of the regulations is the provisions prohibiting refiners,
distributors, and retailers from selling gasolines contaning lead in excess
of that permitted under a prescribed lead content reduction schedule. There
is no question that these provisions are within the plain language of above-
quoted grant of authority to "control or prohibit" the sale or offering for
sale of fuels and additives for use in motor vehicles. Moreover, the Senate
Committee report contains this statement:
"[T]he committee expects that the [Administrator] may find it ad-
visable to permit the continued sale of leaded gasolines to allow for
the efficient and economic operation of automobiles presently on the
highway " S.R. 91-196, 91st Cong., 2d Sess. 34(1970).
Implicit in this statement of intention that the control or prohibition need
not be an absolute ban is the acknowledgement that the Administrator
would be empowered to impose a complete prohibition on leaded gasoline
sales, if he deemed it necessary.
5. Another regulation controls the manufacture and sale of gasolines of
a specified octane, by prohibiting the use of lead and phosphorus additives
in their production, and specifying maximum lead and phosphorus content.
This measure regulates only those refiners who produce a low octane gaso-
line for sale - it does not require any refiner to produce such gasolines for
sale. In our view, this regulation is clearly within the "control or pro-
hibit" language.
6. The draft regulations would require retailers having average and
above gasoline sales to offer for sale at least one grade of lead-free and
phosphorus-free gasoline, in order to provide for the general availability
of a gasoline suitable for catalyst-equipped vehicles. That this kind of "con-
trol" over the offering for sale of gasolines was considered and approved
by the Senate is clear from this language in the report of the Senate Com-
mittee, which added the term "control" to the House bill's "prohibit":
3/ American Trucking Assoc., Inc. v. United States, 344 U.S. 298 (1953);
Greyhound Corp. v. United State's, 221 F. Supp. 440 (N. D. 111. 1963).
4/ Am. Jur. 2d Administrative Law 304.
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"This authority to 'control1 the use of fuels is intended to give the
[Administrator] greater flexibility than the authority to 'prohibit'.
For example, the [Administrator] may find. . .it necessary to con-
trol fuels to assure the availability of non-leaded gasolines"! ! T""
[emphasis added]. S.R. No. 91-196, 91st Cong., 2d Sess. 34(1970).
The conferees retained the Senate's "control or prohibit" wording, but ex-
tended the authority to additives. There is nothing in the Conference Report
to indicate that the conferees did not adopt the Senate's policy as well as
its language in this regard.
7. The expansive regulatory reach which the words "control or prohibit"
were intended to authorize is further explained in the Senate conferees' Dis-
cussion of Key Provisions, presented on the Senate floor, as follows:
"The concept of a control or prohibition should be taken to include
requiring design changes in motor vehicles, as well as fuel handling
equipment, to ensure maximum compliance with regulations speci-
fying acceptable fuel use for various classes of vehicles." 116 Cong.
Reg. 20601-02 (daily ed. 1970).
This statement emphasis congressional awareness that regulations would
have to be imposed which would bar the use of gasolines containing certain
substances in vehicles equipped with catalytic control devices, and which
would prescribe specifications for automobile gasoline tank filler inlets and
for gasoline pump nozzles necessary to implement those prohibitions.
8. The various labels and the notification which the regulations would re-
quire on motor vehicles and gasoline pumps are designed to impose EPA
control" over the retail sale of gasolines by continually alerting and educa-
ting the buyer and the seller to the requirements of the law and the impor-
tance of the catalytic system to air pollution control. We conclude that they
are controls which the Administrator might reasonably conclude are a nec-
essary component of the comprehensive regulatory effort to protect catalytic
emission control systems.
9. Likewise, the requirements that refiners dye gasolines containing lead
or phosphorus and provide clear lead-free, phosphorus-free gasoline are
in our opinion, controls which are reasonably necessary to assist fuel hand-
lers in preventing contamination problems from developing. This procedure
will provide for ready distinction between gasolines in the distribution chain,
in an effort to minimize human errors in handling.
§§§§§§§
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TITLE: Reproposal of Proposed Lead Regulations
DATE: December 15, 1972
MEMORANDUM OF LAW
FACTS
On February 23, 1972, the Agency proposed regulations which would, in
part, have required the phased reduction of lead content in leaded motor
vehicle gasoline, beginning January 1, 1974. _!/ Published with the pro-
posal was the Administrator's conclusion that a specified reduction in
airborne lead levels was necessary to protect against endangerment of
public health, and that the schedule proposed, along with the requirement
of one grade of lead-free gasoline also proposed, would provide the needed
protection. The Administrator's analysis and determinations regarding
information on airborne lead and health were made available to the public
contemporaneously with the proposal in a paper entitled "Health Hazards
of Lead".
Three public hearings were held on all questions concerning the regulation
of lead in gasolines, although the Agency was not required by the Act to
hold hearings on the proposed regulations to protect public health. At the
hearings, the Agency's published rationale for the health-based proposal
was severely criticized by the oil and lead industries, particularly with
respect to the conclusion on an acceptable concentration of airborne lead.
Following the hearings, EPA published a formal request for additional
information and views on the question of airborne lead as a health hazard.
2_l. Substantial new data and opinions were received.
Recently, it has been suggested that the initially proposed lead reduction
schedule for leaded gasolines be deferred for one year and completely
reproposed in the Federal Register. The reproposal would incorporate
EPA s new rationale for health-based regulation of leaded gasoline, which
is substantially different from the original rationale, incorporates new
studies, information and opinion, and abandons some studies and other
material previously relied upon.
Discussion has arisen as to whether EPA is legally required to repropose
the regulations prior to final rule making, on the grounds that a new
health argument would be relied upon for the basis of the regulations and/or
that the deferred dates of implementation would not have previously been
proposed.
QUESTION
Under the facts presented above, is EPA required by law to repropose
the regulations which would provide for the phased reduction of the lead
content in leaded motor vehicle gasolines?
I/ 37 F.R. 3882.
21 37 F.R. 11797, June 14, 1972. this document expressly expanded the
issues in the rule making to include human lead intake via ingestion of
dust contaminated with lead from auto exhaust.
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ANSWER
No. Neither the Clean Air Act nor the Administrative Procedure Act requires
a reproposal prior to final promulgation.
DISCUSSION
1. The primary issue presented here is the sufficiency of the notice given
by the February 23, 1972 proposal to legally support promulgation of the
regulations. The Administrative Procedure Act (APA) 3/ provides that notice
of proposed rule making must be published in the Federal Register, and
that the notice must include "either the terms or substance of the proposed
rule or a description of the subjects and issues involved". EPA chose to
include the specific terms of the rules in its proposal. The Agency's pub-
lication at the time of proposal of the details of its basis for regulating was
action in excess of the notice requirements of the APA.
2. The Court of Appeals for the District of Columbia Circuit, the circuit
in which Agency action under §211 would be reviewed, disposed of the key
question in this case almost twenty years ago. In Logansport Broadcasting
v. F.C.C.. 210 F. 2d 24 (D.C. Cir., 1954), the F.C.C. had proposed
regulations and at the same time announced several priorities under which
its proposed action would be taken. When F.C.C. finalized its rules, it
announced that a particular rule had been based upon a significant new prior-
ity not included in the proposal. The petitioner claimed that this action violated
the notice requirements of the APA. The Court ruled that the APA had
been compiled with, since the Agency had given notice of the subjects and
issues involved in the rule making. In recognition of the problems encoun-
tered in complex rule making the Court stated:
"Surely every time the Commission decided to take account of some
additional factor it was required to start the proceeding all over again.
If such were the rule the proceedings might never be terminated".
The Logansport decision has since been cited in Buckeye Cableyisipn Inc.
v. F.C.C., 387 F. 2d 220, 224 (D.C. Cir., 1967) and California Citizens
Band Assoc. v. U.S.. 375 F. 2d 43, 48 (9th Cir. 1967) in support ol tne
proposition that notice under the APA requires only a description of the
subjects and issues involved.
3. The Agency's February 23 notice of proposal clearly raised the sub-
ject and major issues of regulation of lead additives based on health risks
associated with airborne lead produced by the use of such additives. Under
the Logansport case, the fact that the rationale for such regulation make
that notice insufficient. Moreover, with the publication of the June 14, 1972
invitation to comment on the question of lead in dust, a topic which has
now become a key part of EPA's health rationale, the Agency gave notice
that this subject was being given specific consideration in the rule making
process.
£/ 5 U.S.C. 553(b)
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4. The issue of the timing of implementation of a lead reduction schedule
was also raised by the Febraury 23 notice, since a specific time schedule
was set forth. The affected industries and environmental groups commented
on this schedule at the public hearings and in other submitted comments.
We believe that the Logansport case and the other cases cited above clearly
support the position that an agency may set back the effective date of regu-
lations from the date proposed. The fact that the rule making process con-
sumed a significant portion of the lead time necessary to achieve compliance
by the dates proposed would appear to add legitimacy to the deferral of these
regulations' implementation, although we have uncovered no authority for
that proposition.
5. One additional case is deserving of discussion, inasmuch as it holds that
an agency's notice of proposed rule making was insufficient to comply with
the APA. In Wagner Electric Corp. v. Volpe, 466 F. 2nd 1013 (1972),
the Third Circuit did not challenge the established law that the APA requires
only a description of the subjects and issues involved in rule making, but
held that the proposals of the National Highway Traffic Safety Administrator
were not adequate to fairly raise a particular topic which was the subject
of a final rule. In our view, the Court made no departure from the settled
law, but demonstrated that it would analyze in detail the relationship of a
specific rule to the subjects and issues raised in the notice, and determine
whether a sufficiently "intimate relationship" existed between the proposal
and that rule. In making its analysis, the Court relied upon the nature of the
comments received on the proposals and the representativeness of the com-
ments from all groups which would reasonably be considered "interested per-
sons" within the meaning of the APA. It is important to note that in Wagner
the terms of the final rule involved were never proposed nor was the specific
issue (performance characteristics of flashers) ever addressed in a notice.
6. We believe that final promulgation of the lead-reduction regulations on
a deferred implementation timetable without regulations on a deferred im-
plementation timetable without reproposal will withstand a Wagner-like exam-
ination. Examination of the extensive comments and hearing testimony will
demonstrate that the issues if what the basis for regulation should be, what
reductions are necessary, how they are to be achieved and enforced, and
on what timetable they are to be implemented have been fairly raised by
the published notices.
7. A final issue is whether the Clean Air Act could be construed to require
reproposal where the rationale for regulations is greatly revised during the
rule making process. Section 211(c)(l)(A) of the Clean Air Act authorizes
the Administrator to control or prohibit a motor vehicle fuel additive if it
will endanger the public health upon this (among other) prerequisites (also
in §211).
(c)(2)(C) No. . .fuel additive may be prohibited by the Administrator
under paragraph (1) unless he finds, and published such finding, 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 additive proposed to be prohibited.
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8. No prohibition on the basis of health endangerment has been proposed
in the lead-reduction schedule, only controls. However, the Agency applied
§211(c)<2)(C) broadly to the entire February 23 proposal and published with
the proposal the Administrator's findings on the substitution issue with re-
spect to the lead-reduction program overall. 4_/ Since the lead-reduction
schedule now under consideration involves the same numbers as the proposed
schedule but merely defers its initiation, it does not appear that any revision
to the published findings regarding fuel or additive substitution would be nec-
essitated. If the Agency should determine that the postponement would nec-
essitate any such revision, we believe that publication of the revision at the
time of promulgation is all that is required by the section, not a reproposal
of the regulations and a publication of the revised findings.
§§§§§§§
TITLE: Preemption of Municipal Lead Additive Controls Under the Clean
Air Act
DATE: December 27, 1972
MEMORANDUM OF LAW
FACTS
The City of New York has in effect regulations which control the lead con-
tent of all grades of motor vehicle gasolines as follows:
January 1, 1972 - 1.0 grams per gallon
January 1, 1973 - 0.5 grains per gallon
January 1, 1974 - 0.0 (trace lead) grams per gallon
The Agency will soon promulgate regulations which will require that one
grade of lead-free gasoline of at least 91 octane (R. O.N.) be sold at all major
retail outlets on and after July 1, 1974, and will repropose regulations the
substance of which proposed February 23, 1972, providing for the reduction
of lead content in leaded grades of gasoline. EPA's promulgated regu-
lation will allow lead contamination not to exceed 0. 05 grams per gallon.
The City of New York's lead reduction schedule is based on considerations
of public health protection. The basis for EPA's lead-free gasoline re-
gulations is to provide for the protection of catalytic emission control de-
vices which will be installed on 1975 and subsequent model year motor ve-
hicles. However, because such a regulation would have the effect of re-
37~Publication of the i'inding(s) at the time of the proposal appears to be re-
quired by §211 (c)( 2 )(C).
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ducing lead usage in gasoline on an accelerated basis for every model year
beginning with the 1975 model year, it will ultimately have an effect on
the protection of public health. The pace at which this effect will be realized
is problematical, since any refiner may increase lead levels in leaded gaso-
lines if they are unregulated.
The City of New York is concerned as to the scope and timing of any pre-
emptive effect of the promulgation of EPA regulations for unleaded gasoline.
Understandably, motor vehicle gasoline refiners and retailers as well as en-
vironmental groups are also concerned regarding preemption of the New York
regulation and other State and local regulations. While the Agency is not re-
quired by the Act to issue any opinion regarding the preemptive effect of its
regulation, it is clear that this question will be addressed to the Administrator
by the press, the Congress and others when EPA's regulation is promulgated.
QUESTION #1
To what extent, if any, will the promulgation by EPA of a regulation pres-
cribing that major retail outlets market, after July 1, 1974, at least one
grade of inleaded gasoline in all grades of gasoline?
ANSWER #1
While the issue is not clear, it appears that EPA's promulgation would not
preempt the New York City regulation to the extent the latter is based on
protection of health, since the Administrator's contemporaneous reproposal
of lead-reduction regulations constitutes Agency acknowledgement that further
regulation of lead additives for health reasons may be necessary.
QUESTION #2 '
Assuming that EPA's promulgation does effect preemption with respect to
the one grade of gasoline covered, does preemption occur on the date of EPA's
promulgation, the effective implementation date prescribed by that regulation,
or some other date?
ANSWER #2
As in Question #1 above, the answer is not entirely clear, but it appears
that the preemption would apply from the date of promulgation of EPA's regu-
lation.
DISCUSSION
1. The preemption language of §211 of the Act appears in subparagraph (c)(4)(A)
as follows:
"[No] State (or political subdivision thereof) may prescribe or attempt
to enforce, for purposes of motor vehicle emission control, and con-
trol 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 prohibition under [this section] is necessary and
has published his finding in the Federal Register, or (ii) if the Ad-
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ministrator has prescribed under [this section] a control or prohibi-
tion applicable to such fuel or fuel additive, unless State prohibition
or control is identical to the prohibition or control prescribed by the
Administrator."
2. In order to determine the preeemptive effect of EPA's intended promul-
gation/reproposal, it is necessary to "explore the meaning of this provision
and its legislative history. . . ". !_/ The statutory language sets forth the
basic scheme relatively clearly: it allows the States and their political sub-
divisions to regulate a fuel or additive unless and until the Administrator
takes one of the actions described. With respect to the legislative history,
neither the House nor the Senate bill contained any preemption provision;
it was added by the conferees. The conference report 2/ contains the fol-
lowing explanation of §211(c)(4) at page 53: ~~
No State may prescribe or enforce controls or prohibition respecting
any fuel or additive unless they are identical to those prescribed by
the Federal Government [or are approved as an implementation plan
measure].
Thus, the only legislative history on the section merely frustrates under-
standing of its provisions by contradicting the wording of the section.
3. By promulgating the intended regulation, EPA will impose a prohibition
(subject to the trace contamination level) against the marketing of lead ad-
ditives in motor vehicle gasolines of 91 R.O.N. or less and at the same time
impose a control with respect to gasolines of that octane grade. Standing
alone, this action would appear to fulfill the requirements of §211(c)(4)(A)(ii)
with respect to lead additives, i.e. any State (except California) or local
lead regulation not identical to the Federal regulation would fall. However,
EPA's intended reproposal of a lead reduction schedule clouds the issue,
since the Agency will in effect be saying that for lead it has not yet issued
all the regulations which it may issue "applicable to such. . .fuel additive".
It is important, we think, that this statement is nearly the opposite of the
"no regulation necessary" statement provided for in §211(c)(4)(A)(i). There-
fore, it is not difficult to imagine that a court might view the Agency's action
as incomplete with respect to lead from the standpoint of either of the actions
provided for in §211(c) (4)(A).
!_/ This was the duty which the Court imposed upon itself in Chemical
Specialities Mfrs. Ass'n. v. Lowery. 452 F. 2d 431, 437 (1971) in ex-
amining the preemptive provision on precautionary labeling in the Federal
Hazardous Substances Act (15 U.S. C. 1261 et seq).
I) H.R. REP. NO. 1783, 91st Cong., 2dSess., Dec. 17, 1970.
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4. Another material consideration is that courts generally read preemp-
tion clauses narrowly, especially where State or local health and safety
measures are concerned. 3_l Where, as here, the matter on which Federal
action is being held in abeyance (lead as a health hazard) is the subject
of the local regulation, a court may be reluctant to find that the latter
has been preempted. The Second Circuit (in which any action brought
to over turn the N.Y.C. regulation would be brought) has recently indicated
that in preemption cases it may place as much importance upon the need
for the local regulation and its potential impact upon interstate commerce
as it places upon the express preemption language of the statute. 4_/ This
kind of approach would seem to leave the door openfor the court's consider-
ation of the capacity of the two regulations involved here to coexist with-
out conflict, an issue traditionally limited to preemption questions where
no express preemption provision is in the statute.
5. We think it is helpful to compare the preemption provision at issue
with the preemption language of §233 of the Act which bans State or local
regulation of aircraft emissions unless they are identical to any Federal
regulations. While Congress obviously sought to avoid the proliferation
of varying and inconsistent regulations for aircraft, §211(c)(4)(A) indicates
that it was not so concerned about this problem for fuels and additives
since no preemption independent of Agency action is provided for in §211.
This fact may provide a court additional basis for determining that where
the State or locality is acting to prevent public health hazards any incom-
plete action by EPA should not be held to disrupt the ongoing program.
6. If a court should hold that EPA's promulgation does effect preemption
with respect to regulation of lead use in gasolines of 91 R.O.N. or less,
it appears that preemption would be held to take effect from the date of
EPA's promulgation. "Promulgate" and "prescribe" are used inter-
changeable throughout the Act, and there does not appear to be any basis
for interpreting "prescribe" in §211(c)(4)(A)(ii) as meaning anything other
than "promulgate". It is possible that a court would look to the practical
consequences of this result and be compelled to some other conclusion.
In the New York City case, the readily foreseeable consequence is that
from the date of EPA's promulgation until July 1, 1974, retailers would
be allowed to sell 91 R.O.N. gasoline of any lead content.
~TJThe Supreme Court's statement in Florida Lime & Avocado Growers,
Inc., V. Paul, 373 U.S. 132, 142~(1963) is instructive:
The principle to be derived from our decisions is that Federal
regulation of afield of commerce should not be deemed preemptive
of State regulatory power in the absence of persuasive reasons -
either that the nature of the regulated subject matter permits no
other conclusion, or that the Congress has unmistakably so ordained.
4/ Chemical Specialities Mfrs. Ass'n. v. Lowery, supra note 1.
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7. These issues are also raised by EPA's intended action: whether the
Agency should issue any statement interpreting the preemptive scope of its
promulgation, what form any such statement should take, and what legal con-
sequences flow from any such statement. Clearly, the issuance of an inter-
pretative statement is not required by the Act. If a statement is to be issued
it could range in formality from a press release or letter to a pronouncement
in the preamble of the regulations or an interpretative regulation in the pro-
mulgation itself.
8. Any interpretative statement would basically be interpretative of the statute
itself, i.e. the Agency would be giving its opinion of how §211(c)(4)(A) applies
to the Agency action taken. The legal significance of such a statement appears
to be limited to its persuasiveness to the court. The Second Circuit has stated
what we believe to be the prevailing judicial view as follows:
"Here. . .we deal with a federal statute. . . . Thus, while the views
of the responsible administrative authorities are welcomed, they are
to be accorded no greater weight than the logic which supports them. "5_/
While courts often give substantial weight to a formal interpretation of a law
by its administrative agency, it is our view that an interpretative regulation
or other formal pronouncement (such as in the preamble to the regulations)
in the situation would likely be accorded no more dispositive effect than that
indicated in the above quotation. This is because judicial reliance upon ad-
ministrative interpretation is largely limited to technical areas where the
courts have limited ability to second-guess the judgment of the administering
agency. In contrast, the preemption, issue is not technical in nature but
rather involves determining how the Congress intended to avoid overlapping
and/or inconsistent regulation of affected parties by the Federal and other
governments.
9. Finally, when a refiner subject to the New York City regulation sues in
the U.S. District Court to overturn the regulation on the ground that it has
been preempted, the Agency may be called by either or both sides to submit
an amicus curiae brief to the Court setting forth our interpretation. In
Chrysler Corporation v. Tofany 6_f, the Second Circuit appeared to attach
great significance to the Federal Highway Administration's interpretation of
its statute's preemption language as set forth in an amicus brief. However,
the Court in that case clearly would have arrived at its conclusion even with-
out the Agency's interpretation which "further strengthened" its own, and the
court appears to overstate the law on the significance of administrative inter-
pretations.
B/ Id. It is not clear from the Court's opinion what form the administering
~ agency's (DHEW)^ statement took.
6/ 419 F. 2d. 499, 512 (1969).
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EMERGENCY ACTION
TITLE: Emergency Authority (Section 303)
DATE: November 29, 1971
Under section 303, the Administrator may restrain any person causing or
contributing to pollution which prevents an iminent and substantial endan-
germent to the public health of persons if appropriate State or local authori-
ties have not acted to abate such sources. The only time that court action
has been sought under this section was the recent episode in Birmingham,
Alabama. Although the Birmingham situation was probably unique it will
be described here to illustrate the way the section may work, rather than
the way it probably will work under other circumstances.
The Office of Air Programs in Durham was aware of the weather condi-
tions and the mounting pollution levels in Birmingham on Tuesday, November
16. Late Tuesday night and early Wednesday morning the decision was made
to send personnel from EPA and the Department of Justice lawyer to
Birmingham. On arrival there, in midafternoon on Wednesday, it was deter-
mined that the levels were exceedingly high, i.e. , they had reached levels
equivalent to those that our regulations say should never be reached, that
the county program had attempted to secure reduction of emissions by vol-
untary compliance, that these efforts had been unsuccessful, and that neither
the State nor the county had any legal authority to take further action.
At a press conference, which had been scheduled by the county prior to
our arrival, these facts were announced to the public. At the same time,
of course, it was announced that EPA representatives were there and had
authority under the Federal Clean Air Act to do something. Under these
conditions, there was no alternative for EPA but to proceed. (Although no
formal public request was made State and county officials privately insisted
that EPA proceed).
That evening, we secured a temporary restraining order, without notice,
requiring 23 major industries to take specific actions to curtail or termin-
ate emissions. These actions were carefully limited to those which could
be accomplished without harm to the equipment involved. On Friday morn-
ing, November 19 EPA asked the Court to dissolve the order and dismiss
the case.
One other incident is worth noting with regard to emergency powers. In
February of this year, the City of Chattanooga was experiencing an inver-
sion and elevated levels of particulate matter. At that time, we were in
constant telephone contact with Chattanooga. There the county health de-
partment did not have legal authority to ask the mayor to issue emergency
orders. The county invoked these powers and the mayor did issue such an
order essentially closing down 18 major sources. Chattanooga was signi-
ficant because the Director of the Air Pollution Program made it quite
clear that he would not have requested that such action be taken unless he
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had Federal support, i.e., prior to issuing the orders he asked for and re-
ceived a commitment from EPA that in the hearing which followed the order,
EPA experts would be available to testify as to meteorology, emission
levels, etc.
At that time, an EPA team, including a representative from the Office of
General Counsel, and the Department of Justice, were in Chattanooga.
These are the only'two instances in which situations were presented where
it appeared that EPA court action was likely.
The Birmingham incident is probably unique in that the levels were ex-
tremely high, there was absolutely no legal mechanism by which reductions
in emissions could be achieved, and the State and county people virtually
publicly announced they expected EPA to take action. The Chattanooga in-
cident is probably more typical of the way emergencies will be handled.
The problem in invoking section 303 are substantial. First of all, there
is the need for reliable information, i. e. air quality data, the types of
sources which are contributing to the problem, and what can be done to
curtail these emissions. Moreover, there is the assessment of whether
or not there has been adequate State or local action. Adding the time
needed for the decision-making process within EPA, the possible delay for
assessment by the Department of Justice and the mechanical task of drafting
the appropriate documents, the instances where effective action could be
taken are limited. Moreover, we would generally have to ask for a re-
straining order without notice to the people affected by the order. While
the Judge in Birmingham was willing to do this, we cannot assume that
it will be true in other cases. In short, it will only be the unusual situa-
tion where it will be necessary or appropriate for EPA to fully invoke sec-
tion 303.
In addition to these technical and logistical problems the "political" pro-
blem is the most difficult. States do nor want to be put in the position of
asking for Federal assistance, not do they want to suffer the criticism which
must follow Federal Action, viz the State's failure to protect public health.
Against this must be balanced EPA's responsibility under the Clean Air
Act.
In trying to make this determination as a purely theoretical matter, EPA
takes the position that if levels have not gone down the action has been
inadequate, no matter what has been done. As a practical matter, how-
ever, this is translated into an approach where, if EPA's technical people
make a judgment that reasonable measures have been taken, we would not
act though the levels did not go down. That is, unless we have substantial
measures that we could request a court to order, we would, of course,
not proceed to court.
This question has been raised in several incidents around the country where
EPA has not felt the facts warranted action. In various episodes, Gover-
nors and officers have issued warnings that such an episode was taking
place, have requested that people stay home or inside to the extent possible,
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discontinue those activities which can be easily discontinued, and take other
voluntary measures which may have some effect on the level of pollutants.
In the Senate Report on the 1970 Amendments of Committee indicated that
they were dissatisfied with these types of actions. Implicit in this criticism
was criticism of EPA (then HEW) for failure to act when this was all the
action taken by States.
The completion of State implementation plans in January of 1972, should to
a great extent, solve these problems. In those plans, States are required
to have complete emergency procedures. Thus, hopefully States will adopt
levels of pollution atwhich major sources are required to take certain abate-
ment actions. In most cases the actions to be taken by such sources will
be negotiated with the State or local air pollution agency. Thus each State
will be able to take into consideration not only the technical problems but
the total effect of their emergency plan on their community. This will include
the economic and social effect. Once these strategies are adopted, this
part of the implementation plan will be enforced by the State. The main
effect of this will be to a large extent to eliminate much of the discretion
now in EPA. With the plans in effect, it will only be necessary to look
at what a State said is necessary to be done at certain levels under certain
conditions, and see whether or not it has in fact been done. If it has not
it will be enforced by EPA in the same manner that any other portion of
the implementation plan will be enforced upon a State's failure to do so.
§§§§§§§
TITLE: Definition of "Imminent Endangerment" (Section 112)
DATE: April 26, 1972
You asked for a legal opinion concerning the legal constraints in defining
"imminent endangerment" as ^used in Section 112 (c)(l)(B)(ii) of the Clean
Air Act.
There are few legal constraints on the definition of this term; therefore,
the definition should be developed primarily by OAP and ORM. We would
want to review the basis for the definition you develop.
One legal constraint that does exist is that the imminent endangerment
should be related to the endangerment of the most sensitive population, other
than those in a controlled environment. For example, pregnant mothers
and children should be considered, rather than the average person, if
they are particularly sensitive to the effects of any of the hazardous pol-
lutants. This is consistent with the advice provided by the General Counsel
to the Office of Air Programs in connection with the definition of a similar
term under Section 303 of the Clean Air Act.
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The only other legal constraint is that the definition must not be "arbi-
trary or capricious", i.e., must have a reasonable basis.
In defining the meaning of this term, I would suggest that the following
factors be specifically addressed:
1. Whose health are concerned with? This involved the question of un-
usually sensitive groups.
2. When should health effects be evident? I am thinking particularly of
carcinogens, which may have a long latency period. The question should
be explicitly addressed whether "imminent" is considered to apply to
the time of contracting the illness or the time that the health effects
become evident.
3. What level of risk is so great as to constitute "endangerment"? This
is a problem for pollutants which involve a continuous relationship be-
tween dose and statistical probability of contracting an illness (as op-
posed to severity of illness). Is there a level at which the statistical
probability of contracting the illness is so low as not to constitute "en-
dangerment", even though the illness, if contracted, will be very severe
or fatal, e.g., cancer?
4. How will you deal with pollutants that cause illness only after consider-
able cumulation in the body? This may be one of the smaller problems
if such pollutants do not, under existing non-controlled conditions, cause
serious risk to persons unless they are exposed over many years.
Exposures of two or more years at existing levels would probably not
constitute "imminent endangerment".
5. What type of health effect are you concerned with? As a starting point,
such effects should constitute an increase in mortality or an increase
in serious irreversible, or incapacitating reversible, illness".
i
How does definition compare with similar definitions, if any, for other
;ollutantiT Conclusions reached in connection with Section 112 should
e compared with conclusions reached in connection with other pollu-
tants under other sections of the Clean Air Act and other pollutants
studied or controlled by EPA. Some of the questions that must be
considered in connection with these pollutants involve value judgments
that should be compared with other value judgments reached elsewhere
in EPA.
One possible definition might be based on the distinction between those
exposure levels which have been shown to have caused illness, as opposed
to those levels which theoretically might cause illness. This approach is
not free from difficulties but it might offer some practical solutions to
this difficult problem.
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AIR: GENERAL
TITLE: Information Gathering Under the Clean Air Act, as
Amended--Necessity of OMB Clearance
DATE: February 25, 1971
1. Several sections of the Clean Air Amendments of 1970 provide the Ad-
ministrator significant authority to require information necessary to carry
out his responsibilities under the Act:
a. Section 114 - in order to develop or assist States in developing implemen-
tation plans (§110), to develop new source performance standards (§111),
or hazardous pollutant emission standards (§112), to investigate violations
of standards and plans, or to carry out the emergency episode abatement
authority (§303), the Administrator may, inter alia, require the owner or
operator of a stationary source of air pollution to establish records, make
reports, and provide information generally;
b. Section 115(j) - in connection with an air pollution abatement conference
the Administrator may require a polluter to report to him information on
the "character, kind, and quantity of pollutants discharged" and the control
devices used by the polluter; '
c. Section 202(c(4) - for the purpose of supplying the National Academy
of Sciences any information it deems necessary to conduct a study and in-
vestigation of the technological feasibility of meeting the 1975 and 1976
automobile emission standards, the Administrator may use any informa-
tion gathering authority he has under any provisions of the Act;
d. Section 211 - for the purposes of registration and regulation of fuels
and fuel additives, the Administrator may require the manufacturer of a
fuel or fuel additive to provide him information on emission products and
health or welfare effects resulting from the use of such a fuel or additive.
e. Section 307(a) - in connection with his determination on postponing the
applicability of an implementation plan requirement (§110(f)), his deter-
mination on the suspension of a 1975 or 1976 automobile emission standard
for one year(§202(B)(5)), the gathering of information for annual reports
to the Congress regarding motor vehicle pollution and its control, or to ob-
tain information from motor vehicle manufacturers concerning effects of fuel
additive use on emission control systems (§211)(c)), the Administrator is
authorized to subpena witnesses, papers, books, and documents.
2. In connection with obtaining necessary information, APCO is irfthe pro-
cess of developing plans and preparing forms which in most cases would
be submitted, after appropriate EPA review, to the Office of Management
and Budget for review and clearance. OMB clearance would be sought pur-
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suant to the requirements of the Federal Reports Act of 1942 (44 U.S.C.
3509) \J 2] and OMB Circular A-40 (copy attached) implementing the Act.
It is our view that before any such action is taken, consideration should
be given to the attached Department of Justice memorandum of law in the
case Puritan Fashions Corp. et al. v. Federal Trade Commission, et al. 3/
The memorandum traces me legislative history of the Reports Act, and
treats exhaustively the Act's definition of the term "information" as used
therein. First, Justice maintains that the Reports Act is limited by its
literal terms, as clearly supported by the legislative history, to agency
collection of factual data intended "to be used for statistical compilations,
of general public interest." Second, it is argued that Congress did no:
intend the Reports Act "to govern the independent law enforcement compul-
sory investigative process" agencies. Justice's strict interpretations of the
scope of the Federal Reports Act is correct, in our opinion, and it unques-
tionably constitutes the prevailing construction of the statute for the Execu-
tive Branch. 4_/
3. Applying the first point in the memorandum to the information listed
above, we conclude that none of it is subject to the Reports Act to the
extent that it is not collected for the purpose of preparing statistical com-
pilations of general public' interest; each requirement is tied to the dis-
charge of a specific responsibility under the Clean Air Act. Justice's
second point was restricted by the facts of the case to excepting from the
Reports Act the compulsory investigative process of the adjudicatory regu-
latory agencies, but we think it is necessary and reasonable to apply it
to information specifically obtainable by subpena by EPA under the Act.
!_/ Section 5 of the Act provides:
"A Federal agency may not conduct or sponsor the collection of in-
formation upon identical items, from ten or more persons, other than
Federal employees, unless, in advance of adoption or revision of any
plans or forms to be used in such collection--(1) the agency has sub-
mitted to the Director [of the Office of Management and Budget] the
plans or forms, together with copies of pertinent regulations and of
other related materials as the Director. . . has specified; and (2) the
Director has stated that he does not disapprove the proposed collection
of information".
2/ See memorandum: Air pollution control--Clean Air Act—Collection of
~ information--Applicability of the Federal Reports Act of 1942 (August 15,
1966).
3/ Civil No. 70-64, U.S.D.C., D.C. This suit is still pending. The
~ Government currently is resisting a number of interrogatories propoun-
ded by Puritan.
4/ Mr. Gil Zimmerman, Assistant United States Attorney, District of
" Columbia, advises us that Justice has not altered its position, and that
OMB opposes its interpretation. TheF.T.C. and OMB have an arrange-
ment pending the outcome of the case whereby F.T.C. submits forms
to OMB for review, but OMB has no authority to revise them.
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and to information related to enforcement. Moreover, we think the rationale
they express in the second paragraph on page 6 of the memorandum applies
with equal force to information gathering under any specific authority or res-
ponsibility assigned by Congress so long as it does not involve statistical re-
ports or the like. We see no reason why the applicability of the Federal Reports
Act should be extended beyond its terms so as to impede or defeat the im-
plementation of other laws. 5_/
4. There is a history of problems associated with OMB clearances of infor-
mation gathering in the air and water pollution control fields. We understand
s at the OMB industry advisory group, which reviewed forms and plans sub-
mitted by the Federal Water Quality Office (then FWQA), delayed clearance
for years. A form submitted by DHEW-NAPCA was cleared in ten months,
and that was accomplished only as a result of continual pressure from NAPCA.
Delays experienced in obtaining information upon which to base development
of stationary source emission standards, for example, would be disastrous.
5. We feel that the issues touched upon in this memorandum should be dis-
cussed within EPA as soon as possible, with a view toward developing an
Agency for discussion with OMB.
§§§§§§§
TITLE: Payment of Costs Awared to Successful Litigants under Clean Air Act
DATE: July 12, 1973
Facts
The Clean Air Act provides, at 42 USC 1857h-2(a), that citizens may sue the
Administrator for failure to perform a non-discretionary act. 42 USC 1857h-
2(d) provides in pertinent part:
The court, in issuing any final order in any action pursuant to subsection
(a) of this section, may award costs of litigation (including reasonable
attorney and expert witness fees) to any party, whenever the court deter-
mines such award is appropriate.
In at least one instance, the Administrator has been successfully sued by a
citizen organization under the Act.
5_/ OMB Circular A-40 which implements the Reports Act, goes beyond the
scope of the Act. Its definition of "information" is not consistent with
the Reports Act's definition of that term, as interpreted by the Justice
Department.
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QUESTION
Does EPA bear the ultimate burden of payment of costs awarded by a court in
a Clean Air Act citizen suit ?
ANSWER
No. A special Government-wide appropriation exists for payment of judg-
ments, costs, and interest in final decisions adverse to the United States;
that appropripriation is administered by the General Accounting Office. No
action by EPA is necessary.
DISCUSSION
28 USC 2412 states in full:
Except as otherwise specifically provided by statute, a judgment for costs,
as enumerated in section 1920 of this title but not including the fees
and expenses of attorneys may be awarded to the prevailing party in
any civil action brought by or against the United States or any agency
or official of the United States acting in his official capacity, in any
court having jurisdiction of such action. A judgment for costs when taxed
against the Government, shall, in an amount established by statute or
court rule or order, be limited to reimbursing in whole or in part the
prevailing party for the costs incurred by him in the litigation. Payment
of a judgment for costs shall be as provided in section 2414 and section
2517 of this title for the payment of judgments against the United States.
The first sentence of 28 USC 2412 is paralleled by the "award of costs" pro-
vision of the Clean Air Act quoted above (except that the prohibition ,against
award of attorney fees and expenses is removed by the Clean Air Act provi-
sion). The third (last) sentence of 28 USC 2412 is applicable to all judgments
for costs, and states that judgments for costs are to be paid" as money
judgments against the United States are paid.
28 USC 2414 provides in pertinent part:
Payment of final judgments rendered by a district court against the United
States shall be made on settlements by the General Accounting Office.
The Justice Department routinely referes to the General Accounting Office
final judgments or costs awards which require payment of sums by the United
States. GAO, in turn, "certifies: the propriety of payment of such judgments
and/or costs. Pursuant to 31 USC 724a, a special open-ended appropriation
is available for immediate payment by the Treasury Department of GAO-
certified
final judgments. . . (notin excess of $100,000. . . in any one case)which
; are payable in accordance with theterms of sections 2414, 2517, 2672, or
2677 of Title 28, together with such interest and costs as may be specified
in such judgments or otherwise authorized by law. . .
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Where a judgment exceeds $100, 000, Congress acts specifically to approve its
payment. (Over-$100, 000 cost awards arguably would not require referral to
Congress).
Mr. John Moore, an Assistant General Counsel at GAO, informed me that judg-
ments and costs are never charged against agency appropriations (except in the
case of certain Government corporations). The appropriation created by 31 USC
724a, and specific appropriations tied to individual over-$100, 000 judgments, are
the only ones charged.
Mr. William Arnold at General Litigation Section, civil Division, DOJ, Says that
the Justice attorney handling the case will handle the GAO referral.
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SECTION II NOISE
NOISE CONTROL ACT OF 1972
TITLE: EPA Enforcement Responsibilities
DATE: June 28, 1973
QUESTION
What enforcement responsibilities does EPA have under the Noise Control Act
of 1972?
ANSWER
EPA is responsible for advising the Department of Justice to seek criminal
convictions or injunctions against violations of §6 ("Noise Emission Standards
for Products Distributed in Commerce") and §8 ("Labeling") of the Noise Act.
The Department of Transportation has primary responsibility for so advising
the Justice Department with respect to violations of §17 ( 'Railroad Noise
Emission Standards") and §18 ("Motor Carrier Noise Emission Standards').
EPA also is responsible for issuing orders specifying necessary relief for
violations of §6 and §8 of the Act and may issue such orders for violation
of §17 and §18 of the Act.
DISCUSSION
The following sections of the Noise Act provide for regulatory standards:
§6 Noise Emission Standards for Products Distributed in Commerce
§7 Aircraft Noise Standards
§8 Labeling
§9 Importsl /
§17 Railroad"Noise Emission Standards
§18 Motor Carrier Noise Emission Standards
EPA clearly has no enforcement authority under §7.
1 / This section will not be discussed in this memorandum because it is ad-
~ dressed to "new products" for which regulations will not be published until
October 1974. The enforcement issues in connection with this issue can
be worked out later and be partially based on the resolution of enforce-
ment issues under §§17 and 18.
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EPA equally clearly has enforcement responsibilities under §§6 and 8. Vio-
lations of these sections are punishable by criminal penalties, §11 (a) and
and may be restrained by injunction §11 (c). The Department of Justice is
responsible for bringing such actions but EPA must notify Justice of possible
violations and assist in developing the case just as we have been doing in
actions under the Clean Air Act and Refuse Act and will do under the Federal
Water Pollution Control Act.
States can, but are not required to, adopt standards under §§6 and 8, which
are identical or not in conflict with EPA's standards §6(e) and §8(c). To
the extent that States adopt and enforce such standards, EPA's enforcement
responsibilities will be lightened. However, EPA is ultimately responsible
for enforcing these sections and has no basis for not meeting this responsi-
bility if the States fail to adopt and enforce standards covering the same
actions.
A question has been raised whether EPA could rely on State action or citizen's
suits as the primary means of enforcement. This was the enforcement ap-
proach taken in the Administration's Safe Drinking Water bill. '
Although the Noise Act permits the States to set Standards identical to EPA's,
it does not require them to do so or to enforce such standards. No authority
is given to EPA to delegate its enforcement authority to the States. Thus,
EPA can only rely on State enforcement to the extent that the States do in
fact enforce their own regulations, if any.
The House bill (HR 11021, 92nd Cong., 2d Sess. ) provided for agreements
between the States and the Administrator whereby the Administrator could
authorize States to enforce the civil penalties that would have been imposed
under that bill. §ll(a) and (c). See H. Rep. 92-842, 92d Cong., 2d Sess.
at 17-18: However, Congress deleted this approach in the Act. See §11.
The Noise Act does contain a citizen's suit provision which authorizes direct
action against violators. However, such action can be commenced only after
the Administrator of EPA and the violator have been given 60 days notice and
prohibits such a suit if the Administrator is prosecuting a civil action to re-
quire compliance. The only possible purpose of the 60 day notice to the
Administrator is to give him an opportunity to initiate the proposed enforce-
ment action. This provision thus seems to contemplate citizen's suits against
violators as an additional remedy to EPA enforcement rather than a substitute
for EPA enforcement. There is no legislative history indicating that Con-
gress did not intend the usual method of enforcing Federal standards i.e.,
federal enforcement, to apply in the Noise Act. As stated by Senator Tunney
in explaining the final bill (Cong. Rec., Oct. 18, 1972, at SI 8645):
"The following provisions have been included in the House
Amendment in order to reflect similar provisions of the Senate
bill:
• • •
An enforcement provision similar to the Clean Air Act;
A citizen suit provision identical to the Clean Air Act;
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Thus, the Noise Act should be enforced as federal emission standards are
enforced under the Clean Air Act - by federal action. The Administrator's
Safe Drinking Water bill is not relevant since that bill specifically provides
in §5(a):
"For the purposes of this Act, the States have primary enforcement
responsibility except for Federal facilities which will comply with sec-
tion 15(a). The Administrator shall monitor the activities of the States
and public water systems only to the extent necessary to determine if
States are establishing and maintaining an adequate program to enforce
the national primary drinking water standards. "
Furthermore, the citizen's suit provision in the Noise Act also provides
for suits against the Administrator for failure to perform a nondiscretionary
act or duty. §12(a)(2)(A). While the Administrator has some discretion with
respect to how to allocate enforcement resources and whether a particular
case warrants an enforcement action, there can be little doubt that a policy
of no federal enforcement would be considered as beyond the Administrator's
discretion.
A major problem exists in connection with the enforcement of §17 and §18 of
the Act. Section 18(b) provides:
"The Secretary of Transportation, after consultation with the Ad-
ministrator shall promulgate regulations to insure compliance with all
standards promulgated by the Administrator under this section. The
Secretary of Transportation shall carry out such regulations through
the use of his powers and duties of enforcement and inspection authorized
by the Interstate Commerce Act and the Department of Transportation
Act. Regulations promulgated under this section shall be subject to the
provisions of sections 10, 11, 12, and 16 of this Act. "
Section 17(b) is nearly identical.
The problem is that we have been informally advised by DOT counsel that
the Interstate Commerce Act and the Department of Transportation Act do
not provide penalties for violation of noise emission standards. Although
§l8(b) also references enforcement sections in the Noise Act, EPA's en-
forcement authority is given only to the Administrator of EPA. §11 (d).
Insofar as criminal penalties are sought for violation of §§17 and 18 stan-
dards, there is no problem since the Justice Department brings such action.
However, §11 provides for criminal penalties only for "willfully or know-
ingly" violating EPA standards. Proving that a motor carrier or railroad
"willfully or knowingly" emitted noise above the standard will in many cases
be difficult, if not impossible. It is for this reason that the Office of General
Counsel agreed to the inclusion of a muffler requirement and prohibition
against pocket retreads in the standards. Even though these arguably are
not the type of regulation envisioned under §18(a), they may be the only
effective method of regulating motor carrier noise under §18, since a motor
carrier can much more easily be proven to have knowingly violated this type
of standard than a decibel limitation type of standard.
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If DOT finally determines that they lack authority under the ICA or DOT Act
to penalize violators of EPA's standards, the only recourse would be for DOT
to require persons to comply with §§17 and 18 standards by requesting Justice
to seek an injunction under §11 (c) of the Noise Act or requesting the EPA
Administrator to issue an order under §11 (d) of the Noise Act. Such an
order can only be issued after an adjudicatory hearing. §ll(d)(2). Either
a §11 (c) or a §11 (d) action is a cumbersome way to bring a particular truck
or train into compliance.
However, when a railroad or motor carrier has many trains or trucks in
violation of the standards, the §ll(c) and (d) procedures could be an effec-
tive way of requiring the company to install necessary noise reduction con-
trols on its equipment. Even in such case, it seems contrary to the intent
of §18(b) of the Noise Act that the Administrator of EPA rather than the
Secretary of DOT would have to hold the hearing and issue the order if
§11(d) is used.
I have been advised that DOT counsel are working on this problem. Since
§§17(b) and 18(b) of the Noise Act clearly contemplate that the Secretary
of DOT has primary enforcement authority for §18 standards, it would be
premature for this office to provide at this time a legal opinion concerning
the appropriate means of enforcing §§17 and 18 standards.
§§§§§§§
TITLE: Definition of "Best Available Technology"
DATE: July 5, 1973
QUESTION
What does the term "best available technology" mean as used in sections 17
and 18 of the Noise Control Act?
ANSWER
The term "best available technology" is not defined in the Act. The legis-
lative history of the Act, however, indicates that phrase "best available
technology" refers to either technology existing at the time regulations are
issued or technology that can be developed by the effective date of the regu-
lations. The determination of whether technology is "available" must include
consideration of such practical issues as the capacity of industry to supply
noise control devices and the durability of such products.
DISCUSSION
Sections 6, 17, and 18 of the Noise Control Act provide for the establishment
of noise emission standards which reflect "the degree of noise reduction
achievable through the application of the best available technology," taking
into consideration "the cost of compliance. " The Act, however, does not
attempt to define these phrases.
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The history of the Act in the House does not reveal the meaning of the
phrase best available technology" since that phrase was not a provision
of the House bill. Section 5{c)(l) of the House bill required the Admini-
strator to give appropriate consideration to technological feasibility and
economic costs (taking into account the useful life of the product and the
feasibility and cost of requiring compliance with the standards during the
useful life) before establishing limits on noise emission from new products.
The House bill did not contain any provision regarding either railroads or
interstate motor carriers. The House Report implies that the phrase "tech-
nological feasibility" referred to the application of either present technology
or reasonably attainable technology:
The testimony received from a variety of witnesses indicated that
most major sources of noise affecting the population of the United States
have noise reduction potential that can be attained with application of
today's technology.
The Committee found that there is a lack of adequate information
regarding the cost of noise control for some products and thus included
in the bill the requirement that in establishing final standards for noise
sources, appropriate consideration must be given to the economic costs
of such standards. The Committee also fully expects that adequate con-
sideration be given to the technical capability of industry to meet noise
control requirements. H. Rep. 92-842, 92 Cong., 2d Sess., at 7.
Although the language of the House bill was replaced in the Act by the phrase
"best available technology, " it is not clear that the deletion was intended
as a rejection of the concept of "technological feasibility. " The Senate re-
port merely uses the phrase "best available technology ' without attempting
to clarify its me.aning in sections 17 and 18. With respect to noise emission
standards for new products in section 6, however, the Senate report indi-
cates that the Committee members did not believe that application of the
"best available technology" would permit the immediate control of noise.
The report implies instead that the Committee recognized that "best available"
did not mean best possible technology:
"While the intention of the whole bill is to protect public health and
welfare from environmental noise, the Committee expects that the
application of the best available technology will just begin to realize
that goal in the foreseeable future." S. Rep. No. 92-1160, 92 Cong.,
2d Sess., at 7.
A better indication of the meaning of the phrase "best available technology"
is provided by the remarks of Senators in the Congressional Record. The
remarks of Senator Boggs, a member of the Senate Committee which ap-
proved the bill, imply that the phrase referred to existing technology:
"Building upon the experience of the Clean Air Act and the Federal
Water Pollution. Control Act, the Committee determined that rather
than the vague and general test of protecting public health and welfare,
it would be preferable to set standards for major sources of noise
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based on best available technology taking into account the cost of com-
pliance. Witnesses before the committee indicated that in most cases
the noise of major classes of products manufactured in the United States
could be drastically reduced by the application of existing technology
and that the cost of applying such technology would be comparatively1
reasonable." (emphasis added). 118 S. Jou. 17774 (Oct. 12, 1972).
The language of §§l7(a)(4) and 18(a)(4) of the Act, however, indicate that
nonexistent technology may be within the meaning of "best available tech-
nology" if such technology can be developed prior to the effective date of the
regulations. Indeed, those sections provide that any regulations issued under
§§l7(a) or 18(a) shall become effective only after "such period as the Admini-
strator finds necessary ... to permit the development and application of
the requisite technology ..." (emphasis added). This language suggests
that regulations may require undeveloped technology if a sufficient period
for "development" is permitted prior to the date that they become effective.
In addition, the remarks of Senator Tunney, one of the chief proponents
of the legislation, indicate that the phrase ' best available technology" per-
mits the Administrator to push the limits of the existing technology. The
following remarks of Senator Tunney are particularly significant since they
explain the changes made by the Conference Committee prior to the enact-
ment of the bill in its final form:
Additionally, the Administrator will be required to take into consid-
eration the technology that is available to reduce noise. The Senate
established its regulatory mechanism based on what could be achieved
through the application of the best available technology. The Senate bill
assumed that the best technology available would probably not be adequate
to assure protection of public health and welfare and thus that the levels
of noise reduction which could be achieved with technology would be the
minimum level of control. Under the House amendment, the application
of the best available technology remains the minimum standard, by pro-
viding for the establishment of standards based on both public health
and welfare and the technology available for noise reduction. The Admini-
strator will have an opportunity to assure that the best which can be
done is done, while at the same time pushing the limits of technology
to achieve greater noise emission control results protective of public
health and welfare. 118 S. Jou. 18645-46 (Oct. 18, 1972).
The legislative history thus indicates that the phrase "best available techno-
logy" refers to either technology existing at the time regulations are issued
or technology that can be developed by the effective date of the regulations.
However, the legislative history leaves many important questions unan-
swered. There is no indication, for example, that the Administrator may
consider the capacity of suppliers to distribute the technology in determining
whether technology is "available. " Furthermore, there is no indication that
technology must be operationally proven or that a capability for adequate
maintenance must exist.
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Although the legislative history of one act is normally of limited usefulness
in construing another act, the history of the Clean Air Act and the Federal
Water Pollution Control Act may be relevant since Senator Boggs noted that
the Noise Control Act was built upon the experience of those prior acts
The Senate Report on the FWPCA states:
"As used in this bill the concept 'best available control technology'
is intended to mean that the Administrator should examine the degree
of effluent control that has been or can be achieved through the applica-
tion of technology which is available or normally can be made available.
This does not mean that the technology must be in actual routine use
somewhere. It does mean that the technology must be available at a cost
and at a time which the Administrator determines to be reasonable, and
that the technology has been adequately demonstrated if not routinely
applied. "S. Rep. 92-414, 92 Cong., 1st Sess. at 51-57.
It seems significant that the Senate Report on the Clean Air Act uses nearly
identical language to define the term latest available control technology.
S. Rep. 91-1196, 91st Cong., 2d Sess. at 16. In particular, the consistent
use of a variation of the phrase "best available technology" by the Senate
appears to be more than mere coincidence. The absence of a different de-
finition in the legislative history of the Noise Control Act implies that the
phrase "best available technology" may be interpreted by the EPA in a man-
ner consistent with the interpretation of the phrase "best available control
technology" in FWCPA or the phrase "latest available control technology"
in the Senate Report on the Clean Air Act. Although this interpretation
does not directly answer questions relating to the maintenance capability
and the distributive capacity of manufacturers, the determination of whether
technology is actually "available" must include a consideration of such prac-
tical issues.
It must be stressed that the determination of the Administrator that specific
noise control equipment is or is not the "best available technology" must be
supported on the record by adequate data. The recent decision of the Court
of Appeals for the District of Columbia Circuit in Portland Cement Associa-
tion v. Ruckelshaus. Civ. No. 72-1073 (June 1W, 1973), is particularly
relevant. In interpretating the phrase "the degree of emission limitation
achievable [which] ... the Administrator determines has been adequately
demonstrated" of §111 of the Clean Air Act, the court stated that "it must
be 'adequately demonstrated' that there will be 'available technology'." The
court then suggested guidelines for determining whether technology is avail-
able:
"The Administrator may make a projection based on existing tech-
nology, though that projection is subject to the restraints of reason-
ableness and cannot be based on 'crystal ball' inquiry. . . . [T]he
question of availability is partially dependent on 'lead time, ' the time
in which the technology will have to be available. Since the standards
here put into effect will control new plants immediately, as opposed
to one or two years in the future, the latitude of projection is corre-
spondingly narrowed. If actual tests are not relied on, but instead a
prediction is made, 'its case rests on the reliability of [the] predic-
tion and the nature of [the] assumptions.' " Civ. No. 72-1073 (June
29, 1973), at 31.
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Although these statements were made with respect to the meaning of the
§111 of the Clean Air Act, it is apparent that the reasoning of the court is
equally applicable to the determination of the availability of technology under
sections 6, 17, and 18 of the Noise Control Act.
§§§§§§§
TITLE: Authority of EPA Under Section 4(c) (Authority of Administrator
to Coordinate and Review, Federal Regulations Relating to Both
Environmental and Occupational Noise)
DATE: July 13, 1973
QUESTION
Does EPA have authority to review occupational noise standards proposed by
the Bureau of Mines ?
ANSWER
Although the legislative history of section 4 of the Noise Control Act is
ambiguous, it appears that Congress intended to confer upon the Administra-
tor the authority to coordinate and review Federal occupational noise pro-
grams as well as environmental noise programs.
DISCUSSION
The language of section 4(c) of the Noise Control Act appears to confer autho-
rity upon the Administrator to coordinate and review Federal regulations
relating to both environmental and occupational noise. That section does
not attempt to differentiate between Federal programs relating to environ-
mental noise and those relating to occupational noise. Section 4(c)(l) autho-
rizes the Administrator to "coordinate the programs of all Federal agencies
relating to noise research and noise control. " Section 4(c)(2) directs each
Federal agency to "consult with the Administrator in prescribing standards
or regulations respecting noise. " Section 4(c)(2) also authorizes the Admini-
strator to request a Federal agency to review the advisability of revising
noise standards if "the Administrator has reason to believe that a standard
or regulation, or any proposed standard or regulation, of any Federal agency
respecting noise does not protect the public health and welfare to the extent
he believes to be required and feasible. "
Although there does not appear to be any Congressional discussion of the
authority of the Administrator with respect to occupational noise regulations,
it may be inferred from the history of section 4 that a broad interpretation
of the term "noise" was intended. In the original version of section 406(b)
of S. 3342, the Administrator was authorized to coordinate all Federal pro-
grams relating to "noise pollution research and noise pollution control."
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However, section 406(c)(l) was amended by the Senate Committee on Public
Works, to limit the authority of the Administrator to Federal programs
"relating to environmental noise research and environmental noise control. "
Section 406(c)(2) was amended to require Federal agencies to consult with
the Administrator before "prescribing any regulations respecting environ-
mental noise. " On the other hand, that portion of section 406(c)(2) autho-
rizing the Administrator to request a reconsideration was not expressly a-
mended.
Although there is no express indication of the purpose of the insertion of the
term "environmental noise, " a reasonable inference is that the Committee
intended to restrict the authority of the Administrator. The Senate Report,
for example, implies that the Committee distinguished between "noise" and
"environmental noise":
"The Administrator also is authorized to coordinate all Federal agency
programs related to environmental noise research and control. The Ad-
ministrator is required to comment publicly on noise control programs
and regulations established by other Federal agencies." S. Rep. No.
92-1160, 92d Cong., 2d Sess., at 15.
The quoted statement implies that the term "noise control" programs is
broader, or at least different than the term "environmental noise" control.
The qualifying term "environmental, " however, was deleted from the bill as
finally enacted by an amendment proposed by the House. There are three
possible interpretations of the purpose of this amendment: (1) the House may
have thought that the term "environmental" was superfluous; (2) the House
intended to broaden the authority of the Administrator; or (3) the deletion
was unintentional. The House Report implies that the use of the term "en-
vironmental" was superfluous. Although section 4(b) of the House bill (H. R.
11021) did not qualify the term "respecting noise, " the House Report ack-
nowledges that an independent system of control has previously been estab-
lished for occupational noise:
There is a long history of occupational noise causing degrees of hear-
ing impairment in some of the working population. Reports available to
the Committee indicate that the number of persons engaged in occupations
in which there exists a definite risk of hearing impairment may be as
high as 16 million. The legal structure for the protection of workers
now exists through the provisions of the Occupational Health and Safety
Act and the Coal Mine Safety and Health Act. Although it has been esti-
mated that nonoccupational noise hearing impairment of sufficient severity
to require the use of a hearing aid for adequate comprehension of speech
affects almost 3 million persons in the United States at the present time,
these persons receive virtually no protection from such noise by federal
law. H. Rep. No. 92-842, 92d Cong., 2dSess., at 6.
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On the other hand, the report elsewhere discusses the lack of coordination
Generally among Federal noise programs:
The Committee found that due to the wide divergence of noise abate-
ment programs within the Federal Government, the vast majority of
Federal activities relating to noise have been conducted on an ad hoc
basis. As a result, different systems of measurement of noise impact
have been developed. Because of a demonstrated need for a comprehen-
sive Federal effort, the bill places responsibility on the Administrator
of the Environmental Protection Agency for the coordination of programs
of all departments and agencies, rather than merely promoting such co-
ordination as proposed in the Administration's bill. The Committee anti-
cipates that suitable mechanisms for effective exchange of information
will be achieved and expects that greater joint participation of the prin-
cipal agencies in research efforts and suitable arrangements for joint
utilization of facilities for research will be achieved. H. Rep. No. 92-
842, 92d Cong., 2d Sess., at 7.
Since these comments do not attempt to differentiate between occupational
and nonoccupational noise, it is not clear that the House intended to restrict
the authority of the Administrator to nonoccupational noise programs. It
is possible to infer, therefore, that the term "respecting noisen includes
both environmental and occupational noise. It is also conceivable that the
deletion of the word "environmental" was inadvertent since there was no
discussion of the purpose of the deletion.
Although all of these inferences are possible, the most reasonable inference
appears to be that the House intended to broaden the review authority of the
Administrator to occupational noise programs. This interpretation seems
the most reasonable since there is a presumption that the deletion was made
intentionally and that it had an effect upon the meaning of the legislation.
Moreover, the Bureau of Mines has apparently concluded that section 4(c)
of the Noise Control Act confers the Administrator with authority to co-
ordinate and comment upon occupational noise programs. In a letter to
Mr. Ruckelshaus, dated March 13, 1973, the Acting Director of the Bureau
of Mines, Paul Zinner, wrote:
"Pursuant to Section 4(c){2) of the Noise Control Act, we are sub-
mitting a copy of the proposed noise standards for metal and nonmetal
mines. "
Mr. Zinner apparently believed that the consultation requirements of section
4(c)(2) applied to occupational noise regulations issued by the Bureau of
Mines. Section 4(c){2) confers similar authority upon the Administrator
to request that the Bureau of Mines review the advisability of revising its
occupational noise standard in order to protect the public health and wel-
fare.
The Administrator, therefore, has the authority to request the Bureau of
Mines to review the advisability of revising the proposed noise standard
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for metal and nonmetal mines. Such a request may be made if the Admini-
strator has reason to believe that the standard does not protect the public
health and welfare. Section 4(c)(2) provides that "the request may be published
in the Federal Register and shall be accompanied by a detailed statement of
the information on which it is based. " The detailed statement should indicate
the reasons that the Administrator believes that the proposed standard fails
to protect the public health and welfare. In the event that the Administrator
makes such a request, the Bureau of Mines must submit a report to the
Administrator within the time specified by him. However, the time speci-
fied cannot be less than ninety days from the date of the request. This
report must be published in the Federal Register and accompanied by a de-
tailed statement of the conclusions of the agency.
It should be emphasized that section 4{c)(2) does not require the Administra-
tor to formally request reconsideration of noise standards. Section 4{c)(2)
provides instead that the Administrator "may" request reconsideration and
that any such request "may" be published in the Federal Register. The
Administrator, therefore, has the discretion to make such a request inform-
ally. In most instances an informal request will be sufficient. Therefore,
the Administrator's request for reconsideration should generally be made
informally. If the agency involved ignores or fails to respond adequately
to the Administrator's request, consideration can then be given to publishing
his request in the Federal Register.
§§§§§§§
TITLE: Health and Welfare Criteria for Section 18
DATE: August 15, 1973
QUESTION
Do Sections 17(a) or 18(a) of the Noise Control Act require a showing that
proposed noise emission standards for interstate railroads or interstate mo-
tor carriers will directly benefit the health and welfare of the public ?
ANSWER
Noise emission regulations for interstate railroads and motor carriers must
be based upon the best available technology, taking into consideration the
cost of compliance. There need not be a demonstration that these standards
will directly benefit public health and welfare.
DISCUSSION
Sections 17 and 18 of the Noise Control Act do not require the Administrator
to consider the public health and welfare in setting limits on noise emissions
from the operation of interstate motor carriers or railroads. Section. 18(a)
(1) merely directs the Administrator to publish proposed noise emission
standards setting such limits on noise emissions resulting from operation of
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motor carriers engaged in interstate commerce which reflect the degree of
noise reduction achievable through the application of the best available tech-
nology, taking into account the cost of compliance. " (emphasis added). Sec-
tion 17(a)(l) provides for the regulation of noise emissions from interstate
railroads in nearly identical language.
Where Congress wished for EPA to consider the health and welfare effects
of its standards it specifically so stated. For example, Section 6(c)(l) of the
Noise Act provides that new products standards shall be, inter alia, "requi-
site to protect the public health and welfare". See also §7(c)(l) which re-
quires EPA to propose to the FAA such regulations for aircraft "as EPA
determines is necessary to protect the public health and welfare. " The
reasoning behind standards based on technology and cost rather than health
and welfare is set forth in the Senate Report.
Standards for new productsl / are required to set limits on noise emis-
sions which in the Administrator's judgment reflect the degree of noise
reduction achievable through the application of the best available tech-
nology, taking into account the cost of compliance. The difficulty of
relating noise emissions from a given source to effects on public health
and welfare in an enforceable way, when standards are to be set on a
national basis without control of the circumstances of use or the number
of products in a given area, led the Committee to conclude that implemen-
tation of a technologically-based standard was preferable in terms of
uniformity and enforceability to one calling for protection of the public
health and welfare. While the intention of the whole bill is to protect
public health and welfare from environmental noise, the Committee ex-
pects that the application of the best available technology will just begin
to realize that goal in the foreseeable future. S. Rep. No. 92-1160,
92nd Cong., 2d Sess., at 6-7. 2_/
The only legislative history that indicates that EPA should consider health
and welfare effects in §§17 and 18 standards is a remark made by Senator
Tunney, the bill's sponsor on the floor of the Senate at the time the final
bill was approved by the Senate. Senator Tunney said in discussing the
pre-emptive effect of §§17 and 18:
Second, the House has accepted the Senate proposal which authorizes
the Environmental Protection Agency to establish regulations for control
of noise from interstate carriers, including railroads, trucks and buses.
!_/ The language quoted references new products standards, which in the
Senate bill (S 3342) were required to "reflect[s] the degree of noise re-
duction achievable through the application of the best available techno-
logy, taking into account the cost of compliance." §408(c)(l). This
section was later amended to include health and welfare considerations
and became Section 6 of the Act. The report is quoted for reasoning,
not as §§17 and 18 history.
2/ See also Senator Boggs comments to same effect at 118," 17774 (October
~ 12, 1972).
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The purpose of the amendment is to reduce the impact of conflicting
State and local noise controls on interstate carriers. I would stress,
Mr. President, that the preemption provided in these sections only occurs
in areas of regulation where adequate Federal regulations are in effect.
And, equally important, Mr. President, is that Federal regulations must
be stringent enough to meet the varying local conditions affected by inter-
state carriers. Not only must the Administrator establish regulations
which protect public health and welfare from noise from these interstate
carriers in the average situation but he must also design his regulations
so that the public health and welfare is protected regardless of the location
in which the interstate carrier is operating. 118 S. Jou. 18645 (Oct. 18,
1972).
Senator Tunney's comments concerning health and welfare are clearly at
variance with the words of the statute. However, it should be kept in mind
that the Noise Act was passed by unanimous consent on the last day of the
1972 Senate session during the usual last minute flurry of legislative work
and his remarks may not have been well prepared. Furthermore, the quote
addresses the preemption issue and is not focused on the proper basis for
§§17 and 18 standards. Senator Tunney seems to have been trying to assure
both those Senators who were concerned about relieving interstate commerce
of conflicting local noise laws and those who were concerned about protecting
the public health and welfare that the bill would accomplish both goals.
Accordingly, we believe that the words of the statute should prevail over
Senator Tunney's remarks.
§§§§§§§
TITLE; Pre-emption
DATE; August 24, 1 973
QUESTION
What is the pre-emptive effect of regulations issued under the regulatory
sections of the Noise Control Act?
ANSWER
Section 6;
Once a noise emission regulation has been promulgated by EPA pursuant to
§6 of the Noise Control Act, the authority of states and local governments to
adopt or enforce limits on noise emissions for new products is pre-empted,
unless the state or local regulation is identical to that adopted by the Admini-
strator. States and localities may control environmental noise by regulating
the use of any product, including a product covered by Federal noise emis-
sion regulations. However, state restriction on use which is so broad as to
be effectively a restriction on the sale of a new product probably would be
invalid.
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Section 7;
The authority of states and localities to control aircraft noise through their
police power has been completely pre-empted by the Federal Aviation Act
and the Noise Control Act. There is still some question regarding the extent
to which airport operators can regulate airport noise through their proprie-
tary authority.
Section 8;
After the effective date of Federal labeling regulations adopted under §8,
states are only prohibited from regulating labeling in a manner which con-
flicts with Federal requirements.
Sections 17 and 18:
On their effective dates, the noise emission regulations adopted by EPA pur-
suant to §§17 or 18 pre-empt the authority of states and local governments
to regulate noise emissions resulting from the operation of interstate rail-
roads or interstate motor carriers, unless the state or local regulation is
identical to that adopted by EPA. States and localities may, however, regu-
late the levels of environmental noise or control the use of any product if the
Administrator determines the state or local regulation is necessitated by
special local conditions and is not in conflict with regulations promulgated
under §§17 or 18.
DISCUSSION
Section 6:
Section 6(a) of the Noise Control Act directs EPA to prescribe noise emission
standards applicable to new products which are major sources of noise, for
which noise standards are feasible and which fall into one of the following
categories: 1) construction equipment; 2) transportation equipment (includ-
ing recreational vehicles and related equipment); 3) any motor or engine
(including any equipment of which an engine or motor is an integral part);
4) electrical or electronic equipment.
Section 6(b) authorizes the Administrator to adopt regulations for other
products for which noise emission standards are feasible and necessary
to protect public health and welfare.
Section 6(e)(l) provides that the noise emission regulations adopted under
§6 shall have the following pre-emptive effect:
No State or political subdivision thereof may adopt or enforce--
(A) with respect to any new product for which a regulations has been
prescribed by the Administrator under this section, any law or regu-
lation which sets a limit on noise emissions from such new product
and which is not identical to such regulation of the Administrator;
or
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(B) with respect to any component incorporated into such new product
by the manufacturer of such product, any law or regulation setting
a limit on noise emissions from such component when so incorporated.
(2) Subject to section 17 and 18, nothing in this section precludes
or denies the right of any State or political subdivision thereof to
establish or enforce controls on environmental noise (or one or more
sources thereof) through the licensing, regulation, or restriction of
the use, operation, or movement of any product or combination of
products.
It is clear from the Act that after the promulgation of Federal regulations,
no State or city may adopt or enforce any noise emission regulation appli-
cable to any new product unless such regulation is identical to the Federal
regulation. Prior to the promulgation of Federal regulations by EPA, there
is no restriction on State or local regulation. Even after promulgation of
EPA regulations covering a product, States and municipalities retain wide
authority to control noise resulting from the use of the same product. Tech-
niques available for this purpose include: speed and load limits, curfews
on the use of noisy products, zoning restrictions, boundary line restric-
tions, and similar restrictions.
There are still unresolved questions concerning the extent of State authority
under the Act. For example, it is not clear to what extent States and munici-
palities can prescribe decibel limits on the use of products once they are in
the hands of consumers. Although §6(e)(2) of the Act seems to leave the
States with unlimited authority to regulate use of products, a decibel limit
on use of a product is effectively a prohibition on the sale of such a product
with higher decibel emissions when the noise emitted is not within the control
of the user. For example, consumers will be reluctant to purchase a snow-
mobile that emits more than 85 decibels in a State which prohibits the use
of any snowmobile which emits more than 85 decibels. A similar effect
would result from State regulations that prohibited the use of a product meet-
ing Federal noise standards in a way or at the times such a product is ordi-
narily used, unless the product met lower noise levels.
Unfortunately, the legislative history of §6 is somewhat ambiguous regarding
the propriety of use regulations which have the practical effect of emission
limitations. The pre-emption provision of §6 was proposed in approximately
its final form as §6(d) of the House Bill, H. R. 11021. The House Report
explained the pre-emptive operation of that section as follows:
Section 6 of the Committee's bill affects the authprity of States arid
political subdivisions over noise emissions only in one respect:
States and local governments are pre-empted from prescribing noise
emission standards for new products to which Federal standards
apply, unless their standards are identical to the Federal standards.
A similar provision applies to component parts. For products other
than new products to which Federal standards apply, State and local
governments attain exactly the same authority they would have in the
absence of the standards setting the provisions of the bill. The au-
thority of State and local government to regulate use, operation, or
movement of products is not affected at all by the bill.
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Nothing in the bill authorizes or prohibits a State from enacting State
law respecting testing procedures. Any testing procedures incor-
porated into the Federal regulations must, however, be adopted by
the State in order for its regulations to be considered identical to
Federal regulations.
Localities are not pre-empted from the use of their well-established
powers to engage in zoning, land-use planning, curfews and other
similar plans. For example, the recently enacted Chicago Noise
Ordinance provides that heavy equipment for construction may not
be used between 9:30 p.m. and 8:00 a.m. within 600 feet of a hos-
pital or residence except for public improvement or public service
utility work. The ordinance further provides that the motor of a
vehicle in excess of 4 tons standing on private property and within
150 feet within residential property may not be operated for more
than two consecutive minutes unless within a completely enclosed
structure. Such local provisions would not be pre-empted by the
Federal government by virtue of the purported bill. H. Rep. No.
92-842, 92nd Cong., 2d Sess., at 8-9.
The reference in the House Report to the Chicago ordinance indicates that
States and localities are free to prohibit the use of noisy products during
specified hours.
Although the report does not indicate whether States can completely pro-
hibit all uses of a noisy product, a statement made by Congressman Rogers
in response to a question raised by Congressman Eckhardt indicates that
a total prohibition is permissable. Congressman Rogers is chairman of the
subcommittee which held hearings on the noise legislation. The following
exchange took place:
Mr. Eckhardt. Now suppose the State of Texas should attempt to
accomplish essentially the same thing as the [hypothetical] New York
statute concerning pile drivers was intended to accomplish, but sup-
pose the Texas statute controlled use instead of production or as
sembly. Thus, Texas provides that no pile driver shall be used within
the confines of the State of Texas which has a noise emission level
above a certain number of decibels. Could the State so regulate?
Mr. Rogers. Yes. Though a noise emission limit is provided,
it is not applied in the area this bill is designed to control; that
is, primarily the manufacture of equipment with a certain noise po-
tential. The pre-emption provision in section 6(d)(l) [now 6(e) (1)1
applies only to State regulation of "new products" and new product
is defined in section 3.
Of course, we do know all of this would have to bear any constitution
overview as to the commerce clause and requirements that statutes
be reasonable andnotaburden on interstate commerce. (Cong. Rec.,
p. HI 515, February 29, 1972).
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This discussion supports the proposition that States can prohibit the use of
products regardless of the effect on sales of new products.
On the other hand, the legislative history of the pre-emption provision in
the Senate provides some support for the opposite position. Section 408(d)
of the Senate bill prohibited, after the effective date of a Federal standard,
any State or local standard on noise emissions of a product which was "en-
forceable against the manufacturer." (See 118 Cong. Rec. S17745-46,
October 12, 1972). The prohibition of only those local regulations which are
"enforceable against the manufacturer" suggests that States may set use
limits which discourage the sale of new products which emit noise in excess
of the local regulation. However, in the report of the Senate Committee
on Public Works which accompanied the bill to the Senate floor, the Com-
mittee stated:
Subsection 408(d) of the bill deals with the responsibilities of the
Federal government and State and local governments in controlling
noise. For any product manufactured after the effective date of an
applicable Federal standard, authority to establish noise emission
standards for the manufacturer is pre-empted. States and cities,
however, retain complete authority to establish and enforce limits
on environmental noise through the licensing, regulations, or re-
striction of the use, operation, or movement of a product, or concen-
tration or combination of products.
It is the intention of the Committee to distinguish between burdens
which fall on the manufacturers of products in interstate commerce
and burdens which may be imposed on the users of such products.
In the judgment of the Committee, noise emission standards for pro-
ducts which must be met by manufacturers, whether applicable at the
point of introduction into commerce or at any other point, should be
uniform.
At a minimum, States and local governments may reach or main-
tain levels of environmental noise which they desire through (a) op-
eration limits or regulations on products in use (such as speed or
load limits or prohibitions of use in given areas or during given
hours); (b) quantitative limits on environmental noise in a given area
which may be enforced against any source within the area, including
zones adjacent to streets and highways; (c) regulations limiting the
environmental noise which may exist at the boundary of a construc-
tion site; (d) nuisance laws; or (e) other devices tailored to the
needs of differing localities and land uses which do not amount to
a burden manufacturers must meet to continue in business. Sen.
Rep. No. 92-1160, 92nd Cong., 2d Sess., at 7-8.
The references in the Senate report to pre-emption of standards enforce-
able "indirectly against the manufacturer" and of standards "which must be
met by manufacturers, whether applicable at the point of introduction into
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commerce or at any other point" suggest that the Senate did not intend to
permit the States to set standards which would discourage or eliminate the
sale of new products meeting Federal standards.
The pre-emptive language of §6(e) as finally adopted reflects the broad lan-
guage of the House bill. Unfortunately, there was no discussion of the
meaning of the final pre-emptive language. The incorporation of the broad
language of the House bill implies that the section should be given an inter-
pretation that is consistent with the statement made by Congressman Rogers.
On the other hand, the deletion of the language in §6(e)(l) of the Senate
bill vhich had limited pre-emption to State regulations "enforceable against
the manufacturer" suggests that the final Act pre-empts use regulations
which would indirectly eliminate or discourage sales of new products.
Since the legislative history of §6(e) is somewhat ambiguous it is difficult
to predict with any certainty how the courts would construe the pre-emptive
provisions. However, a case which will undoubtedly influence the deter-
mination is AILway Taxi, Inc. v. City of New York, 340 F. Supp. 1120
(S.D. N.Y. 1972). In that suit several corporations challenged a New
York City ordinance which required taxicabs to be equipped with emission
control devices. The ordinance was challenged on the ground that it violated
§209 of the Clean Air Act which prohibits States from regulating exhaust
emissions for new motor vehicles. Section 209(c), however, expressly
authorized State use regulations in language very similar to §6{e)(2) of the
Noise Control Act:
(c) Nothing in this part shall preclude or deny to any State or po-
litical subdivision thereof the right otherwise to control, regulate,
or restrict the use, operation, or movement of registered or li-
censed motor vehicles.
Moreover, §213(3) of the Clean Air Act defined the term "new motor vehicle"
as a motor vehicle "the equitable or legal title to which has never been trans-
ferred to an ultimate purchaser. " (The definition of "new product" in §3(5)(A)
of the Noise Control Act is identical). Even though the city emission lim-
itation may have indirectly discouraged the sale of new motor vehicles as
taxicabs, the court held that the ordinance was not pre-empted by §209 of
the Clean Air Act. However, the court warned that the imposition of State
emission standards immediately after a new car is bought and registered
"would be an obvious circumvention of the Clean Air Act and would defeat
the Congressional purpose of preventing obstruction to interstate commerce."
On the other hand, the court stated that State emission requirements "upon
the resale and reregistration of the automobile" or "for the licensing vehicles
for commercial use within that locality" would not be pre-empted.
Thus the Court in Allway Taxi recognized that a restriction which does not
apply before or at the sale may have such an adverse effect upon sales
as to be invalid under the pre-emption provisions relating to "new motor
vehicles." Yet the Court found no such effect even when all taxicabs in
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New York City were subject to the local restriction. Other cases have
tended to construe pre-emptive provisions narrowly.*/
We conclude that broad State and local use restrictions are permissible
under §6, but that use restrictions which effectively discourage the sale
of all new products covered by Federal regulations would probably be in-
valid. Because the practical effect of a use restriction rather than the
"nature" of the restriction will probably be determinative, the validity of
such restrictions will have to be considered in light of the extent of the
restriction, the ordinary use of the product, the effect of the restriction
on interstate commerce, and related facts. No general rule is possible.
Section 7;
Section 7(b) of the Noise Control Act, which amends §611 of the Federal
Aviation Act, provides that the FAA, after consulting with EPA, shall pro-
vide "for the control and abatement of aircraft noise and sonic boom, in-
cluding the application of such standards and regulations in the issuance,
amendment, modification, suspension or revocation of any certificate au-
thorized by [the Federal Aviation Act]. " Although §611 of the Federal Avia-
tion Act does not contain any pre-emptive language, the Supreme Court of
the United States in the City of Burbank v. Lockheed Air Terminal Inc.,
U.S. 93-S. Ct. 1854 (1973), held that the pervasive nature of Federal regu-
lation of aircraft noise pre-empts the authority of States and local juris-
dictions to adopt or enforce regulations controlling aircraft noise under their
police power. At issue in that suit was the validity of an ordinance of
the City of Burbank which prohibited jet aircraft from taking off between
the hours of 11 p.m. and 11 a.m. from an airport owned by Lockheed.
Although the Court recognized that the control of noise has traditionally
been within the police power of the States, the Court held that the per-
vasive control vested in EPA and the FAA under the Noise Control Act
"seems to us to leave no room for local curfews or other local controls. "
The opinion further declared that a uniform and exclusive system of Federal
regulation is necessary because of the interdependence of safety and the con-
trol of noise pollution.
In light of the recent decision in City of Burbank v. Lockheed Air Termi-
nal, supra, it is clear that State and local government are completely pre-
empted from adopting or enforcing regulations to control aircraft noise under
their police power. The authority of States and local governments is pre-
empted whether or not the Federal government has in fact adopted any regu-
lations controlling aircraft noise.
*/ See, e.g., Askew v. American Waterways Operators, Inc.. U •S.
~ . 935.CJ. 1590 qa78)j Chrysler (Jorp v. Toiany. 419 F723 499
TScTCir., 1969); Exxon Corp. v. City oi New York. 1F. Supp. ,
Civ. No. 73-1093 (S.D.N.Y. 1973).
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However, in a footnote to the majority opinion, Justice Douglas suggested
that localities may have proprietary authority as airport owners to control
airport noise. */ Since Justice Douglas failed to indicate the types of meas-
ures that could" be taken by airport operators under their proprietary au-
thority, it is impossible at this time to determine whether the police power-
proprietary distinction is really meaningful. The fact that Justice Douglas
reserved the right to rule upon "what limits if any apply to a municipality
as a proprietor suggests that the proprietary authority may also be held
in the future to have been pre-empted by the pervasive nature of Federal
airport noise regulations.
Section 8;
Section 8 authorizes Federal noise labeling requirements for products which
emit noise capable of adversely affecting the public health or welfare or which
are sold on the basis of their effectiveness in reducing noise. Section 8(c)
provides:
This section does not prevent any State or political subdivision there-
of from regulating product labeling or information respecting products
in any way not in conflict with regulations prescribed by the Admin-
istrator under this section.
Section 8 thus leaves the States with considerable power in the area of
labeling. Prior to the promulgation of Federal labeling requirements, States
and municipalities may regulate labeling in any manner desired. After the
effective date of Federal regulations, States are only prohibited from regu-
lating labeling in a way which conflicts with Federal requirements. Thus,
for example, a Federal regulation requiring manufacturers to place a label
on the product specifying the noise emission level of the product in decibels
would not preclude a State regulation requiring manufacturers to indicate
that the high noise level might impair the buyers hearing after a specified
amount of time near the product. The States, therefore, have wide authority
in this area.
Sections 17 and 18:
Sections 17 and 18 direct the Administrator to promulgate noise emission
regulations for interstate railroads and interstate motor carriers. Noise
emission regulations adopted by EPA pursuant to §§17 and 18 must include
limits on noise emissions that are based upon "best available technology,
taking into account the cost of compliance. "
Section 17(c)(l) provides for Federal pre-emption in the following language:
. . . After the effective date of a regulation under this section
applicable to noise emissions resulting from the operation of any
equipment of facility of a surface carrier engaged in interstate com-
merce by railroad, no State or political subdivision thereof may adopt
*/ U.S. , 93S.Ct. 1854, at 1861 n. 14.
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or enforce any standard applicable to noise emissions resulting from
the operation of the same equipment or facility of such carrier unless
such standard is identical to a standard applicable to emissions re-
sulting from such operation prescribed by any regulation under this
section.
The pre-emptive provision of §l8(c)(l)is nearly identical to that of §17 (c)(l)
except that §18(c)(l) prohibits state and local regulations "applicable to the
same operation of such motor carrier" while §17(c)(l) forbids the adoption
of regulations "applicable to noise emissions resulting from operation of the
same equipment or facility of such carrier. " Since the legislative history
does not indicate whether the use of different phrases was intentional, the
words of each section should be construed literally.
Section 17(c)(l), therefore, pre-empts only regulations that apply to "oper-
ation of the same equipment or facility". However, this leaves open the
question whether local regulation of greater or smaller units of equipment
or facilities than are covered by Federal regulations would be pre-empted.
For example, if Federal standards exist for locomotives, can local gov-
ernments regulate brake noise or noise from the entire train?
Section 18(c)(l) applies to all State and local regulations applicable to the
"same operation" covered by Federal regulations. The question here is
what is the "same operation" of a motor carrier? For example, it is not
clear whether EPA, by the adoption of noise emission standards for those
trucks with a gross vehicle weight rating over 10,000 pounds, has pre-
empted the States from regulating the operation of trucks weighing less than
10,000 pounds.
In our opinion, the question of what is the "same operation" or "operation
of the same equipment or facility" will be influenced greatly by EPA state-
ments concerning what it believes its regulations cover. Therefore, EPA
should state [when promulgating regulations] what particular operation or
equipment it intends to cover by its regulations. For example, if EPA
promulgates a regulation under §18 limiting noise emissions only from trucks
over 10,000 Ibs., it should state the reason it did not regulate noise emis-
sions from trucks under 10,000 Ibs. EPA should indicate whether it be-
lieves that such trucks do not need regulation, in which case there should
be pre-emption, or whether noise from such trucks is essentially a local
problem, in which case there should not be pre-emption.
The position that EPA's statements will be controlling is supported by
Chrysler Corporation v. Tofany, 419 F. 2d 499 (2d Cir. 1969). I'n Tofany.
the U. S. Court of Appeals had to interpret the pre-emptive language of
the Federal Motor Safety Act, which is similar to §§17(c)(l) vand 18(c)(l).
Section 1392(d) of the Federal Motor Vehicle Safety Act provides:
Whenever a Federal motor vehicle safety standard established
under this subchapter is in effect, no State or political subdivision
of a State shall have any authority either to establish, or to con-
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tinue in effect, with respect to any motor vehicle or item of motor
vehicle equipment any safety standard applicable to the same aspect^
of performance of such vehicle or item of equipment which is not
identical to the Federal standard, (emphasis added.)
The Court interpreted the phrases "item of motor vehicle equipment" and
"same aspect of performance" narrowly. The court concluded that Fed-
eral regulation of lighting generally did not preclude State regulation of a
specific type of auxiliary lighting. In reaching this conclusion, the court
heavily relied on the fact that the Federal Highway Administration never
intended to deal with that specific type of auxiliary lighting. The court
quoted the decision of the U.S. Supreme Court in Thorpe v. Housing Au-
thority of Durham, 393 U.S. 268, 276, 89 S.Ct. 518, 523 (1969), for the
proposition that the administrative interpretation of a regulation is control-
ling unless plainly erroneous. Tofany and Thorpe thus indicate that EPA's
statements regarding the pre-emptive effect of regulations implementing
§§17 and 18 will be controlling. However, EPA's statements will not be
dispositive if a court believes that the State or local regulations impose
an undue burden upon interstate commerce.
Assuming that a State or local regulation would be pre-empted by the terms
of §§17(c)(l) or 18(c)(l), a State or locality may apply for an exemption
under §§17(c)(2)or 18(c)(2). Sections 17(c)(2) and 18(c){2) provide in identical
language as follows:
Nothing in this section shall diminish or enhance the rights of any
State or political subdivision thereof to establish and enforce stand-
ards or controls on levels of environmental noise, or to control,
license, regulate, or restrict the use, operation, or movement of
any product if the Administrator, after consultation with the Secretary
of Transportation, determines that such standard, control, license,
regulation, or restriction is necessitated by special local conditions
and is not in conflict with regulations promulgated under this section.
The term "not in conflict" must be construed in accordance with the pur-
pose of §17(c) and §18(c), i. e. to avoid undue burdens on interstate com-
merce. *_/ Thus §§17(c)(2)~and~ 18(c)(2) determinations will have to be made
by balancing local needs against the impact local regulation will have on
interstate commerce. In view of recent judicial decisions affecting EPA
actions, we believe that any reasonable determination by the Administrator
which takes both of these factors into account will be sustained if the Ad-
ministrator clearly articulates his reasoning.
Thus, EPA can to a great extent control the pre-emptive effect of its regu-
lations under §§17 and 1 8 by (1) explaining the pre-emptive effect EPA be-
lieves its regulations should have and (2) granting exemptions under §§17
(c)(2)and!8(c)(2).
Congress1 intent in enacting the preemption sections was clearly to min-
imize the burden on interstate commerce. See 118 Cong. Rec. SI 7777,
SI 8002-03 (October 12 and 13, 1972).
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SECTION III * RADIATION
ENVIRONMENTAL RADIATION
TITLE: Definition of "Generally Applicable Environmental Radiation Standards"
DATE: July 20, 1972
It has come to my attention that some ORP staff may believe that the author-
ity transferred from AEC to EPA to set "generally applicable environmental
radiation standards" for the protection of the general environment from rad-
ioactive materials limits EPA to settling only one type of standard, e. g.,
ambient or exposure limits unrelated to class of activity.
There is no definition of this term in the Atomic Energy Act of 1954, nor
the regulations implementing that Act, nor is there any precedent which can
be relied upon to define the meaning of this term. Since the definition of
the term is essentially a matter of defining the relative responsibilities be-
tween two Federal Government agencies (AEC and EPA) the proper definition
will ultimately have to be settled with the Executive Branch.
Thus, I would suggest that the definition of this term be decided in the first
instance by a policy decision on the part of EPA with respect to the type
of standard that it deems most desirable for protecting the public health
and the environment. The next step in the definition of the term would be
to discuss with AEC EPA's preferred approach to setting radiation stan-
dards. Finally, if the AEC disagrees with EPA's interpretation, the matter
would probably be settled by CEQ, OMB, or the White House.
In my opinion, efforts made to determine EPA's position by first attempt-
ing to ascertain what the words "general applicable environmental standards"
"really mean" in some dictionary sense, would be a wasted effort and, could
unnecessarily constrain EPA's efforts in environmental radiation protection.
I have been involved in attempts to define this term for over a year now.
Such attempts included involved negotiations with the AEC. At no time
have I seen any persuasive or even strong evidence of what this term "really
means. " The AEC at one time argued that the term should mean stan-
dards of the type published by the AEC in Part 20 of its regulations. These
standards are not related to specific classes of activity. However, the
AEC withdrew from this position and in its Federal Register notice publish-
ing Proposed Standards for Light-Water Cooled Reactors noted that "EPA
has under consideration generally applicable environmental standards for
these types of power reactors". Thus, the AEC, the agency which has the
greatest interest in this matter besides EPA, apparently concluded that
"generally applicable environmental standards" could be established for dif-
ferent classes of activity.
The purpose of this memorandum is not to recommend any particular ap-
proach to setting radiation standards. On the contrary, I simply wish to
make it clear that EPA has considerable latitude with respect to the type
of radiation standard that it may set under the authority transferred from
the AEC.
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SECTION IV WATER
FEDERAL WATER POLLUTION CONTROL ACT
AMENDMENTS OF 1972
TITLE: Interpretation of the Federal Water Pollution Control Act
DATE: February 12, 1973
QUESTION
In a hypothetical case, an industry has a waste discharge into a navigable
water for which a permit has been issued pursuant to Section 402. The
discharger intends to combine the discharge from a new facility which would
qualify as such under Section 306 with that of the existing facility, resulting
either in an augmentation in flow of the present discharge or in the deteri-
oration in quality of that discharge. Query: Can this new facility be con-
sidered a "new facility" to which standards of performance adopted under
Section 306 and the NEPA requirements of Section 511(c) would apply (as-
suming that regulations already have been promulgated under Section 306
setting standards of performance applicable to a category which would in-
clude the new discharge)?
ANSWER
If the facility qualifies as a "new source" as defined in §306(a)(2), then the
standards of performance adopted under §306 and the NEPA requirements of
§511(c) would be applicable to the portion of the combined discharge at-
tributable to the new facility. Whether the new facility is considered to
be a "new source" subject to §306 and the NEPA requirements of §511(c),
or instead merely a modification of the existing source (which would not be
subject to §306 and NEPA), would have to be determined in light of the
particular facts of each case. The fact that the discharge from the new
facility is combined with the discharge from an existing facility would not
necessarily disqualify the new facility from the status of a "new source."
QUESTION
Prior to issuing a compliance order pursuant to Section 309, must we hold
a hearing, presumably an adjudicatory hearing? If not, does the recipient
of a compliance order issued under Section 309 have any right of adminis-
trative or judicial review of such order, or must the recipient wait until
he is charged with a violation of the order under Section 309(d), at which
time he presumably would be entitled to a trial de novo?
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ANSWER
An adjjudicatory hearing is required by the Administrative Procedure Act
§554, in every case of adjudication required by statute to be determined
on the record after opportunity for an agency hearing " Section 309 of
the FWPCA contains no requirement of a hearing prior to the issuance of
the order. In the Senate Report Congress indicates its intent that a hearing
not be required:
"The bill, therefore, deletes the cumbersome conference and hear-
ing procedures in the existing law. Such Administrative procedures
were appropriate when the control program was based on ambient
water quality and would serve no purpose except delay in an enforce-
ment program based on effluent control." [S. Rep. No. 92-414 at
p. 64]
In the absence of a provision in the FWPCA requiring a hearing, none is
required by the APA.
The question remains whether the recipient of a compliance order would
have an immediate right of administrative or judicial review, or whether
he should have to wait until he is charged with a violation of the order under
§309(d). In my view, the recipient of a compliance order would have an
immediate right of judicial review, under the Administrative Procedure
Act, if the Administrator failed to bring an enforcement action. The recip-
ient of such an order would be faced with the choice of making the expendi-
tures necessary to achieve compliance, or risking liability for a civil penalty
under §309(d). This should be a sufficient predicate for judicial review
at the instance of the recipient, if the Administrator fails to institute enforce-
ment proceedings. See Abbot Laboratories v. Gardner 387 U.S. 136. In the
absence of an administrative hearing, judicial review would be de novo.
QUESTION
The memorandum prepared by the Legal Support Division dated November 9,
1972, indicated (at page 69) that certification under Section 2Kb) of the
old Federal Water Pollution Control Act did not appear to satisfy the require-
ments of Section 401. Will it therefore be necessary to secure new cer-
certifications under Section 401 for those permit applications which have
already received certification under Section 2Kb), or does the savings clause
in the Act (Section 4) preserve the effectiveness of such certifications?
ANSWER
The Agency has reached the following decision concerning the continuing
force of certification made by the state under §21(b) of the old FWPCA:
(a) If the permit was issued before October 18, 1972, both the permit and
the certificate are valid.
(b) If the application was in hand, but the state had not yet certified by
October 18, a new certification is necessary.
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(c) If the state had certified with respect to the old application, but a permit
has not yet issued, the state is given an election, within certain time limits,
as to whether it will issue a new certification. If the state decides not to is-
sue anew certification, then any additional certification requirements under
§401 are deemed to have been waived.
QUESTION
Section 401(a)(l) provides that before a State can issue a certification for
a permit application under Section 402, it must find that the discharge
covered by the application complies with the applicable provisions of Section
301, 302, 306, and 307. Section 401 further provides that in the case of any
such activity for which there is not an effluent limitation, or other limitation
under Sections 301(b) and 302, and there is not an applicable standard under
Sections 306 and 307, the State shall so certify. Assuming that no
"limitations" under Sections 301 and 302 or "standards" under Sections 306
and 307 exist, to what does the State certify? Does the State merely
"certify" that no applicable limitations or standards presently exist (and
return the application to EPA without certification), or does it issue a for-
mal certification? If the proper statutory procedure is merely to certify
that no limits or standards exist, does this amount to a waiver by the State
(in which case EPA presumably would not be required to file an EIS prior
to issuance of a permit)?
ANSWER
EPA's obligation under §511(c)(l) to prepare an environmental impact state-
ment for new source permits (where a "major Federal action significantly
affecting the quality of the human environment" is involved) is not depend-
ent on the existence or type of State certification under §401. Thus, from
this standpoint, there is no need to characterize the State's certification.
Moreover, a new source exists only where there is an applicable new source
performance standard (see §306(a)(2)). Thus in the case of a new source
permit, there should not ordinarily be a State certification of "no applicable
standard. "
§§§§§§ §
TITLE: Technical Comments on S. 2770
DATE: November 29, 1971
We have prepared the following technical comments on S. 2770 as passed:
§!02(b)
This section, dealing with the subject of water quality storage, makes two
important changes from its predecessor, Section 3(b) of the FWPCA. Section
3(b) apparently applied only to federally-built projects, while the new Section
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appears to cover all federally-licensed projects. The second change is that
Section 3(b) gave the federal agency building the project authority to determine
the need for water quality storage, while the new bill gives that authority
to EPA. f J
In light of these changes. Section 102{b)(2) is ambiguous. Does it mean that
for a privately-built project under FPC license, EPA is to make the deter-
mination of the need for water quality storage? This is what the first clause
of subsection (2) seems to say. But the second clause, by referring to
"any report or presentation to Congress, " might be interpreted to limit the
scope of the subsection to federally-built projects requiring Congressional
authorization. Depending on whatis intended regarding the scope of 102(b)(2),
it should be amended to read either:
"The need for and the value of storage for such purpose
shall be determined by the Administrator. In the case of
a project built by a Federal agency under Congressional
authorization, the Administrator's views on these matters
shall be set forth in any report ***. "
or:
"In the case of a project built by a Federal agency under
Congressional authorization, the need for and the value
of storage for such purpose shall be determined by the
Administrator, and his views on these matters shall be
set forth in any report ***. "
If the latter alternative is taken, then the FPC would be making the deter-
minations regarding water quality storage for private projects under federal
license--as is the case under present law. In that event, 102(b)(3) would
have to be amended to eliminate the two references to the Administrator.
If the former alternative is adopted, some provision would have to be made
for EPA participation as a decision-maker in FPC hydroelectric project
licensing proceedings.
§301
1. §3Ql(b)
By couching its requirement in terms of a "not later than" date, this section
could produce a hiatus in enforcement activities until January 1, 1976. An
additional hiatus could occur between 1976 and 1981 with respect to the
more stringent standards of §309(b)(2). To avoid any such implication^
section 309(b) should be redrafted to require compliance as soon as possible
but in no event no later than January 1, 1976. Without this amendment
there will be a strong tendency on the part of industry, and perhaps a Court,
to view the 1976 and 1981 dates as deadlines not requiring earlier compliance
with the standards of treatment required by section 301 (b), if that is possible.
Therefore, section 301 (b) should be revised as follows:
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"(b) In order to carry out the purposes of this Act there
shall be achieved--
"(1)(A) as soon as possible, but in no event later than
January 1, 1976, effluent limitations for point sources,
other than publicly owned treatment works, (i) which
shall require the application of the best practicable
control technology currently available***(etc.) and
"(B) as soon as possible, but in no event later than
January 1, 1976, for publicly owned treatment works
in existence, or approved pursuant to section 203 of this
Act prior to June 30, 1974 (for which construction must
be completed within four years of approval), secondary
treatment as defined by the Administrator pursuant to
section 304(d)(l) of this Act; or,
"(C) as soon as possible, but in no event later than
January 1, 1976, any more stringent effluent limitation,
treatment standards, or schedule of compliance
established pursuant to any other State or Federal law
or regulation***(etc.).
"(2)(A)as soon as possible after January 1976, but in no
event later than January 1,1981, effluent limitations for
point sources, other than publicly owned treatment
works, (i) which shall require the elimination of the
discharge of pollutants, **#(etc.): and
"(B) as soon as possible after January 1, 1976, but in
no event later than January 1, 1981, compliance with
the requirements established under section 201 (d) of
this Act for publicly owned treatment works. "
2. §§301(b)(l)(A)(ii) and (b)(2)(A)(ii) - Pretreatment requirement
The present language requiring "compliance with any applicable pretreatment
requirements and any requirements under section 307 of this Act" is unclear
as to whether it includes the toxic pollutant effluent standards of §307^0 in
referring generally to requirements under §307, since §307(a) would seem
not to apply to discharges into publicly owned treatment works. (§307(b)
pretreatment standards should pick up discharges of toxic pollutants into
treatment works.) However, to refer to §307 in its entirety in §301 may
cause confusion in view of the variant time schedules and hearing procedures
set out in §307(a) for toxic pollutants as opposed to substances subject to
pretreatment [§307(b)]. The above difficulties can be avoided by amending
§§301(b)(l)(A)(ii) and (b)(2)(A)(ii) to read:
"... compliance with any pretreatment requirements under
subsection (b) of section 307 of this Act. "
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3. §301(b)(l)(C)(ii)
In 301(b)(l)(C)(ii), the words "for intrastate waters" should be deleted.
Otherwise, the section will not cover State water quality standards for
interstate waters which have not been approved under the FWPCA.
§302
As a practical matter, effluent limitations under section 302 whould have to
be established on an area-wide basis, in the same manner as enforcement
conferences under the FWPCA. This raises a problem in light of the
bifurcated jurisdiction of permits under section 402. In section 302 pro-
ceedings, the situation will probably be that most dischargers in the area
are under exclusive State jurisdication, with a few of the major dischargers,
however, being within the category as to which EPA has reserved the right
to federal concurrence under section 402. What will happen if EPA thinks
that more stringent controls are needed in the areas, but the State disagrees?
Under the present draft, it would appear that the EPA-controlled permits
would incorporate the more stringent condition, while the State-controlled
permits would not. A similar problem might arise if the area in question
involves more than one State, and one of the affected States thinks that more
stringent controls are needed, while the other State disagrees. A means
for resolving this type of conflict should be written into section 302, so that
there is some coordination and uniformity among the affected federal and
State jurisdictions whenever section 302 limitations are proposed for a
particular area.
§304
1. §304(b)
In several places, there is reference to the "degree of effluent reduction"
which EPA is to identify as being achievable by a particular type of
technology. 304(b)(l)(A), (B), 304(b)(2)(A), (B), 304(d)(l). This should be
changed to "degree of effluent limitation, " in order to eliminate any inference
that the limitation must be expressed in terms of percentage reduction,
rather than in terms of pounds of pollutant per unit of production.
2. §304(c)
Section 304(c) establishes a deadline of 180 days after enactment for issuance
of information on practices necessary to implement the national standards
of performance under section 306. But the initial section 306 standards
need not be promulgated until over 18 months after enactment. It would be
preferable to require issuance of information under 304(c) at the same time
that the standards to which the information pertains are promulgated. 304(c)
should be amended to delete "within one hundred and eighty days" from line
9, and add the following sentence in line 14:
Such information shall be issued at the same time as the promulga-
tion under section 306 of the standards of performance to which the
information relates.
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3. §304(f)
Section 304(f)(l), directing EPA to establish guidelines for pretreatment,
states that such guidelines "shall be established to control and prevent the
discharge into the navigable waters, the contiguous zone, or the ocean
(either directly or through publicly owned treatment works)" of any pollutant
which interferes with or passes through or is incompatible with the works.
On the other hand, section 307(b)(l) directs EPA to establish national pre-
treatment standards "for discharges of pollutants into publicly owned treat-
ment works." There is no reason for the pretreatment guidelines under
304(f) to be concerned with direct discharges into the water, or to have a
broader scope than the 307(b) national standards. Accordingly, the second
sentence of section 304(f)(l) should be amended to read as follows:
"Guidelines under this subsection shall be established to
control and prevent the discharge into publicly owned
treatment works of any pollutant which interfers with,
passes through, or otherwise is incompatible with such
works." l'
§305
The phrase "navigable waters of such State" in 305(b)(l )(B) should be changed
to "navigable waters in such State. " Otherwise, the subsection could be
construed as requiring a report to Congress on all navigable waters of the
State--i.e., every navigable body, regardless of interstate connection. This
would be inconsistent with the rest of section 305 and the rest of the statute,
which is confined to "navigable waters of the United States" (see the definition
in section 502(h)). This could be important, since there are many inland
lakes which are navigable waters of the State but, because of lack of inter-
state connection, are not navigable waters of the United States. Unless
Congress wants a report on each of the 10,000 lakes in Minnesota, for
example, this change should be made.
§306
1. §306(a) and (b)
In 306(a)(l), lines 18, and 306(b)(l)(C), line 3, the term "limitation" should
be substituted for "reduction" in order to reflect the concept that abatement
may take place through practices that eliminate the creation of waste, rather'
than solely through treatment that reduces the amount of waste after it has
been created.
2. §306(b)(l)(C)
The word "new" should be inserted before "sources" in line 19, page 93, to,
avoid any implication that the standard described in §306(a)(l) applies to all
point sources catalogued pursuant to §306(b).
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3. §306(c)
In 306(c), the procedure for delegating to the States the authority to enforce
new source performance standards might be read to derogate from the
Administrator's authority under the section 402 permit program to withhold
concurrence with a State-is sued permit which, to his view, did not comply
with a new source performance standard. To eliminate this ambiguity,
section 306(c)(2) should be amended to read as follows:
"Nothing in this subsection shall prohibit the Administrator
from enforcing, under section 309 of this Act, any applic-
able standard of performance under this section, or from
withholding his concurrence with a permit proposed to be
issued by a State, under section 402(d)(2) of this Act, on
tile ground of non-compliance with any applicable standard
of performance under this section. "
§307
1. §307(a)(2)
Section 307(a)(2), line 22, should be amended to delete "adduced at such
hearings" and substitute "of record." If the evidence supporting the mod-
ification is placed in the public docket and is available for inspection by all,
then there is no reason to restrict the Administrator's consideration of mod-
ifications in the proposed standards to evidence adduced at the hearing.
Under the schedule established by 307(a)(2), there maybe as much as 5 months
betwen the pub lie hearing and final promulgation. It would be most unfortun-
ate if EPA could receive no evidence during that period. 5 U.S.C. 553,
which section 307(a)(2) incorporates, does not limit rule making agencies
to the evidence adduced at the hearing. The limitation would also appear to
be inconsistent with the Administrator's obligation to consult under 307(a)(7),
which requires consultations that would not be performed at a public hearing.
2. §307(a)(5)
The Committee Report (at p. 61), states:
The Committee has provided the Administrator with
authority to differentiate among categories of sources in
establishing requirements under this section.
This authority, for example, would give the Administrator
the latitude to treat a plant that processes cadmium ore
differently than he might treat a plant in which cadmium
appears as a trace impurity.
However, the language of 307(a)(5) only gives the Administrator authority
to "designate the category or categories of sources to which the effluent
standard (or prohibition) shall apply." This could be read to mean that,
among the categories to which the standard applies, it must be uniform.
Section 307(a)(5) should be amended to add the following sentence:
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"Any such effluent standard (or prohibition) may differ-
entiate among the categories of sources to which it
applies. "
A similar change in section 307(b)(3) would be appropriate with respect to
pretreatment standards.
3. §307(b)(l)
The words "publicly owned" shall be inserted before "treatment works" in
line 16, page 97, to properly limit the scope of coverage of the third sentence
of §307(b)(l), and to conform to the first sentence of §307(b)(l).
§308
Section 308{c) is confusing, since it states that only trade secrets are
entitled to confidentiality, but then refers to the "purposes of section 1905
of title 18." 18 U.S.C. 1905 covers much more than trade secrets—it
covers "trade secrets, processes, operations, style or work, or apparatus,
or *** the identity, confidential statistical data, amounts or source of any
income, profits, losses, or expenditures***.. " To be consistent, either all
reference to 18 U.S.C. 1905 should be eliminated, or confidentiality should
be extended to "trade secrets of such person and all other information entitled
to protection under 18 U.S.C. 1905. An alternative, middle ground would
be to extend confidentiality to "all information exempt from public disclosure
under 5 U.S.C. 552(b)(4)." This would incorporate the exemption in the
Freedom of Information Act for trade secrets and confidential or privileged
commercial or financial information.
§309
1. §309(a)(2)
Section 309(a)(2), relating to periods of federally assumed enforcement,
points up a problem by referring (in line 12, page 101) to the "failure of the
State to enforce such permit conditions, or limitations effectively...." Does
this refer to §402 permits including §306 or §307 requirements, or just to
those permits embodying a §301 or §302 "effluent limitations?" The latter
sections appear tobe the only ones intended to be covered. If so, §309(a)(2),
line 12, page 101, should be amended to cover "failure of the State to enforce
such limitations or permit conditions applying such limitations effectively,
It should be recognized that a State can, notwithstanding action by the Admin-
istrator under §309(a)(2), continue to operate a permit program approved
under §402, including any categories of point sources as to which the require-
ment for federal concurrence has been waived. In any event, the EPA
summary takeover procedure under §309(a)(2) could conflict with that
provided in §402(c)(3), requiring a public hearing, at least when a State was
operating its own 402 program [which is to include enforcement--see
§402(b)(7)]. Indeed, other than with respect to existing "more stringent"
State standards incorporated into section 301 [via §301(b)(l)(C)], it is unclear
whether §309(a)(2) could ever come into play without a State §402 program
operating, since until that time presumably only EPA would be enforcing
§§301 or 302 through the §402 permit program.
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To avoid conflict with section 402(c)(3) hearing procedures, the following
new section (3) should be added to §309(a) as follows:
"(3) If, prior to action taken by the Administrator under
paragraph (2) of this subsection, effluent limitations under
sections 301 or 302 of this Act are being applied by a State
under a program approved under subsection (b) of section
402 of this Act, then the procedure provided in subsection
(c)(3) of that section shall be followed by the Administrator
in acting to assume enforcement under paragraph (2) of this
subsection."
2. §309(a)(3)
This provision, requiring the Administrator to either issue an order of com-
pliance or sue whenever he finds a violation of §§301 or 302 effluent limit-
ations or '§§306, 307, 308, or 402 of the Act makes no mention of the 30 day
notice required by§309(a)(l) with respect to §301 or 302 effluent limitations.
In order to avoid conflict with §309(a)(l), the present version of §309(a)(3)
should be revised as follows:
"Whenever, on the basis of any information available to
him, the Administrator finds that any person is in viola-
tion of section 301 or 302 of this Act... [etc. ] he shall,
subject to the requirements of paragraph (1) of this sub-
section as to a violation of an effluent limitation under
sections 301 or 302 of this Act, issue an order requiring-
such person to comply with such section "
3. §309(a)(4)
The Senate Report states (at page 63) that if a violation ".. .involves section
308, the order will not take effect until the polluter has an opportunity to
confer with EPA. " To avoid unnecessary confusion, the list of exceptions
to the "conferring" requirement presently set forth in the first sentence of
subsection (a)(4), lines 11 to 15, should be replaced with a single reference
to §308 as the section for which a violation order must be preceded by an
opportunity to confer. Section 309(a)(4) would then read as follows:
"(4) An order issued under this subsection relating to a
violation of any requirement of section 308 of this Act
shall not take effect until the person to whom it is issued
has had an opportunity to confer with the Administrator or
to his delegate concerning the alleged violation. "
4. §§309(b), (c), and (d)
As presently drafted these sections made no reference to enforcement of
orders issued by the Administrator under the emergency power granted him
by section 504(a) of the Act. Nor is there any provision for enforcement of
such orders make in section 504. Enforcement sanctions, including criminal
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and civil penalties, should be available in order to make the Administrator's
emergency powers meaningful. Therefore, we suggest adding a reference to
section504(a)orders to the enforcement provisions of section 309 as follows:
"(b) The Administrator shall commence a civil action
for appropriate relief, including a permanent or temporary
injunction whenever any person -
"(1) violates or fails or refuses to comply with any order
issued under subsection (a) of this section or any order
issued under subsection (a) of section 504 of this Act. "
A similar reference to section 504(a) should be made in the list of viola-
tions in sections 309(c) and (d) providing for criminal and civil penalties
[as will be discussed below, these sections should, in any event, be patterned
more closely after subsection (b)].
In addition to inclusion of §504(a) orders, §§309(b), (c) and (d) should be made
to conform to each other as much as possible to avoid any unintended dis-
tinctions being drawn between violations subject to injunctive relief, criminal
and civil penalties. Looking first at §309(b), subparagraph (6) refers to
violations of §§301, 302, 306 and 307 which have already been listed in sub-
paragraphs (2) and (3) of §309(b). This is unnecessary and confusing, and
might be read to nullify the restrictions on enforcement of §301 and 302.
Subparagraph (6) should be amended as follows:
"(6) violates a permit, or condition thereof, under section
402 of this Act.''
Section 309(b)(5) exempts no-permit discharge violations from enforcement
until July 1, 1973. This is intended to encourage prompt action by EPA in
processing permit applications (see Senate Rep. p. 64). However, omitting
the exemption from the criminal and civil penalties in §§309(c) and (d)
certainly does not reinforce the pressure on EPA to process applications
and also will not encourage industry to file early since they can get pro-
secuted anyway. Therefore, this exemption should be included in §§309(c)
and (d).
An additional inconsistency among these provisions appears in §309(d) where
the violations subject to penalty are listed in more abbreviated form and
some differences can be discerned as to sections 301, 302 (reference to
federally-assumed enforcement omitted) and 307 (reference to pretreatment
standards omitted).
In sum, section 309(b) should be rewritten to delete the portion of §309(b)(6)
referred to above, and §§309(c) and (d) should then be made to conform to
subsection (b) unless different treatment is specifically intended.
§311
1. §311(a)(3)
The question of whether this section applies to continuous discharges, or
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this section, and toxic substances under section 307(a), overlap and conflict.
Thus, for example, a heavy fine is establised for any discharge of certain
hazardous substances (section 311(b)(2(C)), although under section 307(a)
the same substance might be classified as "toxic" and subject to an effluent
limitation which permits some continuous discharge.
If the intent is to apply the section only to spills, then the present definition
of "discharge" in 311(a)(3) should be changed. The definition could be changed
to read as follows:
"'discharge1 includes, but is not limited to, any spilling,
leaking, pumping, pouring, emitting, emptying or dumping,
but shall not include any discharge that is in substantial
compliance with an effluent limitation established under
sections 301, 302, 306 or 307, or is in substantial comp-
liance with the conditions of a permit issued under section
402 of this Act. "
2. S311(b)(2)
Section 311(b)(2) rests on a misconception as to the nature of "removal"
of hazardous substances. The section requires EPA to determine whether
any listed hazardous substance "is subject to removal under this section."
The term "removal" is defined in an extremely broad fashion by 311(a)(9)
to include not only removal in the ordinary sense, but also "the taking of
such other actions as may be necessary to minimize or mitigate damage to
the public health or welfare***. " This would include, for example, eva-
cuation of a population, or closing down a public water supply system. Under
this definition of removal, every "hazardous substance" would be "subject to
removal" under many if not most circumstances. Indeed, even under a
more restricted concept of "removal", if the circumstances are right just
about any hazardous substance can be removed. Witness, for example, the
case of the small lake in Ohio into which a quantity of endrin was dumped;
removal was accomplished by draining the lake. Or in the case of some
spills, "removal" of just about any substance might be accomplished by
diking, if the circumstances are right.
In light of these considerations, 311(b)(2)(B) commits a basic error in
assuming that there can be a general determination for each hazardous sub-
stance as to whether it is "subject to removal." Removal must depend on
the particular circumstances of the spill, as well as on the type of substance
involved. Accordingly, 311(b)(2) should be amended to make the penalty
which it imposes dependent on the degree to which the substance was removed
or removable in the circumstances of the particular spill for which the penalty
is imposed.
There is another problem with 311(b)(2) as drafted. It imposes a minimum
penalty of $50, 000 regardless of the amount discharged. Yet 311(b) requires
the President to issue regulations which would determine that certain amounts
of hazardous substances are not harmful. It would make no sense to impose
a $50, 000 fine for a discharge of an amount which EPA regulations said was
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was not harmful. In view of this1 problem and the problem relating to re-
removability, we would suggest amending section 3 ll(b)(2) to read as follows:
"(B) The Administrator shall, as part of any determina-
tion under subparagraph (a) of this paragraph, establish the
rate of penalty, not to exceed $5, 000 per barrel (or equiva-
lent unit established by regulation by the Administrator)
of discharge, to be imposed under subparagraph (C) of this
paragraph, for each hazardous substance designated. He
shall establish such penalty based on the toxicity, de-
gradability, and disposal characteristics of such substance.
(C) The owner or operator of any vessel, onshore facility
or offshore facility from which there is discharged any
hazardous substance designated under subparagraph (A) of
this paragraph, shall be liable, subject to the defenses to
liability provided under subsection (f) of this section, to
the United States for the penalty per barrel of such sub-
stances discharged established under subparagraph (B) of
this paragraph, or $50,000 per discharge, whichever is
greater. Such penalty shall be subject to reduction to the
degree that the owner or operator can prove to the satis-
faction of the Administrator that the hazardous substance
discharged was in fact removed and appropriate restora-
tion action taken. In addition, in determining the amount
of the fine, the Administrator shall consider the degree
to which the discharger removed the hazardous substance
and took other steps to reduce the environmental effect of
the discharge. No such penalty shall be imposed for any
discharge of any amount determinednot to be harmful under
regulations issued pursuant to paragraph (4) of this sub-
section. "
3. §311(b)(6)
Following the provisions of the present Act, this provision assigns to the
Coast Guard responsibility for assessing a civil penalty of up to $10,000
for discharges of oil and hazardous substances. The present Act, however,
only covers discharges of oil. Expansion of the section to hazardous sub-
stances may make it desirable for EPA to be the agency with authority to
impose a fine in certain cases, as, for example, discharges of hazardous
substances from various industrial facilities. The Coast Guard, of course,
would remain the most qualified agency where there are discharges from
vessels or terminals. Section 311(b)(6) should be amended to give the
President authority to allocate the authority among EPA and the Coast Guard,
as follows:
"(6) Any owner or operator of any vessel, onshore
facility, or offshore facility from which oil or hazardous
substance is willfully or negligently discharged in vio-
lation of paragraph (2) of this subsection shall be assessed
a civil penalty by the appropriate agency of the United
States Government as determined by the president of
not more than $10,000 for each offense. No penalty
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shall be assessed unless the owner or operator charged
shall have been given notice and opportunity for a hearing
on such charge. Each violation is a separate offense.
Any such civil penalty may be compromised by such
agency. In determining the amount of the penalty, or
the amount agreed upon in compromise, the appropriate-
ness of such penalty to the size of the business of the
owner or operator charged, the effect on the owner or
operator's ability to continue in business, and the gravity
of the violation, shall be considered by such agency. The
Secretary of the Treasure shall withhold at the request
of such agency the clearance required by section 4197
of the Revised Statutes of the United States, as amended
(46 U.S.C. 91), of any vessel the owner or operator of
which is subject to the foregoing penalty. Clearance
may be granted in such cases upon the filing of a bond
or other surety satisfactory to such agency.
4. §311(d)
Section 311(d) provides the President with authority to take summary action
in the event of a marine disaster involving a substantial threat to the public
health or welfare. This section is brought into play if there is an actual or
imminent discharge of "large quantities" of oil or hazardous substances
from a vessel. The word "significant" should be substituted for the word
"large" (line 16) to insure application of the section to hazardous substances
which may present a substantial threat to the public health or welfare even
in small quantities.
5. §311(p)
Section 311(p), which requires vessels to carry evidence of financial re-
sponsibility for liabilities under 311, is made effective by 311(p)(2) one
year after the effective date of the Water Quality Improvement Act of 1970.
This makes sense with respect to liability for oil spills, which was estab-
lished by the 1970 Act, but it does not make sense with respect for liability
for hazardous substance spills, which would be established by the present
legislation. Accordingly, the first sentence of 311 (p)(?) should be amended
to read as follows:
The provisions of paragraph (1) of this subsection shall
be effective one year after the effective date of the Water
Quality Improvement Act of 1970 with respect to liability
for discharges of oil, and one year after the effective
date of this section with respect to liability for discharges
of hazardous substances.
§312
§312(f)(3)-no-discharge zones
The word "navigable" should be inserted before "waters" in line 15 (page
138) to clearly bring this section into line with the scope of §312(h)(4) and
the scope of the Act as a whole which is limited to navigable waters of the
United States.
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§401
1. §401(a)(7)
Section 401 is essentially the same as the present section 21(b). However,
the grandfather clause—section 401(a)(7)—has been amended to achieve a
result exactly the opposite of what the Senate Committee intended. The
Senate Committee report explains that the intent of the amendment was to
exempt Refuse Act permits (or equivalent permits under the new Act) from
the grace period, where construction of the facility started before April 3,
1970. The Report explains (at p. 69): "Certification will be required for all
such permits from the date of enactment on, regardless of time construction
of the facility began. "
However, as drafted the new section 407(a)(7) does not exempt Refuse Act
or equivalent permits from the grace period. Instead, it includes such
permits in the grace period, and then exempts them from the requirement
that the permit expires on April 3 1973, unless a water quality certification
is obtained.
Section40l(a)(7) should be amended to delete the parenthetical phrase follow-
ing the word "permit" in line 1 (p. 151 of the print), and insert the same
parenthetical phrase in line 24 (p. 150 of the print) following the word
"permit."
2. §401(d)
Certifications under section 401 are to assure compliance with sections 301
and 302 and "any other applicable water quality requirement in such State."
The scope of the catchall phrase is not definedin section 401, and the question
arises as to whether certification by the State is to include certification with
respect to discharges from point sources within section 306 or 307. Section
401(d) provides that any certification is to set forth the effluent limitations
necessary to assure that the applicant for a federal license will comply
not only with sections 301 or 302 but also sections 306 or 307 or any more
stringent requirement under State law as provided for in section 510 of the
Act. Therefore, the intent of the drafters apparently was to allow the States
to certify as to section 306 or 307 requirements or any applicable State
requirement saved under section 510. This intention would be more clearly
expressed if the term "applicable water quality requirement" was defined in
a new subsection (f) which would track the present language of subsection (d)
as follows:
"(f) The term 'applicable water quality requirement1 as
used in this section means any applicable effluent limitations
under section 301 or 302 of this Act, or prohibition, effluent
standard, or pretreatment standard under section 307 of
this Act, or any more stringent water quality requirements
understate law as provided in section 510 of this Act."
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Present subsection (d) should then be shortened to read as follows:
"(d) Any certification provided under this section shall
set forth any effluent limitations and monitoring require-
ments necessary to assure that any applicant for any
Federal license or permit will comply with any applicable
water quality requirement and shall become a condition
on any Federal license or permit subject to the provisions
of this section."
§402
1. §402(c) and (f)
No provision is made in the present draft for the revocation of the Admini-
strator's waiver of EPA overview under section 402(d). The only way for
the Administrator to reassert EPA authority with respect to point sources
for which a waiver has been made under section 402(e) or (f) is to act
under section 402(c)(3), which requires a public hearing, to withdraw approval
from a State's entire 402 program. There may well be some instances
involving a particularly serious or important discharge' within a waivered
category as to which EPA should take an active role, yet there may be no
grounds, nor any need, for withdrawal of approval of the State's entire
program under §402(c)(3). The intent throughout section 402 appears to be to
create a system whereby the great bulk of permits will be issuedand enforced
by the States, with EPA taking part only as to permits covering discharges
which pose particularly serious or difficult problems. Yet EPA might be
very reluctant to grant waivers if they could not later be modified or revoked.
We believe, therefore, that a provision should be made for selective revoca-
tion of section 402(e) or (f) waivers. This could be accomplished by adding
a new subsection (g) which would provide:
"(g) The Administrator may modify or revoke any waiver
issued under subsection (e) of this section, or anv regula-
tions issued under subsection (f) of this section.
2. §402(1)
Section 402(1) requires that copies of the permit application be made public.
Nothing is said as to protection of trade secrets or confidential commercial
or financial information. It would seem appropriate to accord the same
degree of confidentiality to permit application data as is accorded by section
303(c) to information obtained by inspections and reports.
§509
The comments made supra regarding section 308(c) apply also to section
509(a).
Section 509(b)(l) fails to provide for judicial review where the Administrator
concurs (or refuses to concur) in the State issuance of a permit. The second
sentence of 509(b)(l) should be amended to read as follows:
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"A petition for review of the Administrator's action in
approving or promulgating any effluent limitation under
sections 301 or 302 of this Act, or issuing or denying
any permit under section 402 of this Act, or concurring
or refusing to concur in State issuance of any permit
under section 402 of this Act, may be filed by any inte-
rested persons only in the United States court of appeals
for the appropriate circuit."
§511
1. §§511(a) and (c)
This section provides that the Rivers and Harbors Act of 1899 shall remain
in effect, except that any certification pursuant to §401 or license issued
pursuant to §402 shall be conclusive as to the effect on water quality of any
discharge from any activity subject to section 10 of the 1899 Act. However,
no mention is made of section 13 (the Refuse Act) which, of course, is to
be supplanted by the permit program created by §402 of the new Act. Other
than as to section 10, the 1899 Act is specifically saved by §511(a) [line 7].
This clearly does not square with § 402 and should be corrected by including
the Rivers and Harbors Act of 1899 in the list of statutes set forth in §511(c)
which are to be displaced by the new legislation (as to regulation of pollutant
discharges but not navigation and anchorage). Section 511(c) would then read
as follows:
"(c) Discharges of pollutants into the navigable waters
subject to the Rivers and Harbors Act of 1899 (30 Stat.
1121; 33 U.S.C. 401 et seq.), the Rivers and Harbors
Act of 1910 (36 Stat. 593; 33 U.S.C. 421) and the
Supervisory Harbors Act of 1888 (25 Stat. 209; 33 U.S.C.
441-451 b) shall be regulated pursuant to this Act, and not
subject to such Act of 1899, Act of 1910 and Act of 1883
except as to effect on navigation and anchorages. "
2. §511(d)(2)
Section 511(d)(2) overlooks the fact that many States, for various reasons,
may waive the certification. The effect of 511(d)(2) as drafted would pro-
bably be to require compliance with NEPA for Refuse Act or section 402
permits, wherever State certification was waived.
In addition, EPA concurrence in a State-issued permit could be regarded
as a significant federal action requiring compliance with NEPA, unless 511
(d) is drafted to cover such action.
Section 511(d)(2) should be amended to read as follows:
"(2) by the issuance of a permit pursuant to section 13
of the Act of March 10, 1899, or by the Administrator's
issuance of, or concurrence in the issuance of, a permit
under section 402 of this Act, with respect to any license
or permit for the operation of any activity which may
result in any discharge into the navigable waters of the
United States."
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Statement on S. 2770
The bill as passed by the Senate, simply leaves too many questions un-
answered to be summarily passed upon by this Committee. That is why,
in my view, these additional hearings are necessary. I would like to point
out some of the more glaring problems to you today. In addition I am sub-
mitting a detailed analysis of S. 2770 which will amplify these problems
and also set forth many other problem areas of that bill, as passed. Some
of these difficulties reflect merely inadequate drafting; however, many also
present substantial questions of policy which I believe require detailed
examination by your Committee, and the House as a whole, before final
action is taken.
A good place to begin an examination of S. 2770 is in the enforcement section
which is section number 309. Surprisingly, this section omits any reference
to enforcement of emergency orders to be issued by the Administrator of
EPA under section 504 of the Act. These orders would be issued when
pollution hazards present an "imminent or substantial endangerment to the
health or welfare" in the words of section 504. Such authority for action on
the part of EPA is a proper and highly desirable addition to the weapons
available to the Agency to take whatever action is necessary to protect the
intergrity of our water resources. However, emergency orders under section
504 are not made enforceable by section 309 of the Senate bill. No sanction
is provided for a violation of section 504. This presents us with the ridiculous
result that orders directed to the gravest pollution hazards may not be en-
forceable.
A second matter which concerns me relates to the procedure created by
section 401 of S. 2770. This section is modeled after a section in the
existing statute and will require state certification that federally licensed
activities will not violate water quality requirements. According to the
Senate Report, a state certification must be obtained before any federal
permit can issue under the Refuse Act Permit Program, or its successor
created by section 402 of the Senate bill. And, according to the Senate
Committee Report, this requirement is to apply regardless of when the
discharging facility was constructed.
We agree with the Senate Report that immediate state certification is neces-
sary in order to best achieve the goal of abating water pollution, regard-
less of when the facility was constructed. However, the Senate bill as
actually drafted and passed not only fails to accomplish this result, it actu-
ally eliminates the requirement in the present law that all facilities, regard-
less "o7~wTien~~they were constructed, must obtain a state certification by
April, 1973.
A third area of concern to me, and another which reveals a need for de-
tailed consideration by this Committee, is that of "Water Quality Related
Effluent Limitations" created by section 302 of the Senate Bill. The intent
here is to allow effluent limitations to be set on the basis of receiving
water requirements rather than to set these limitations based upon the degree
to which it is possible to treat a particular discharge. This will allow
stricter limitations to be set for particular water bodies where the 1981
best available technology standard will not insure the high degree of water
quality which we seek to achieve. /.
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The problem, however, with the present version of section 302 is that it
mixes into its area-wide approach a procedure focusing on individual dis-
charges, with inadequate mechanisms for coordination among State and Fed-
eral Agencies. In particular, section 302 ignores the possibility that speci-
fic waters to which the section 302 limitations will apply may cover more
than one state jurisdiction. In addition, some of the discharges within the
area may be subject to exclusive state jurisdiction under an approved sec-
tion 402 permit program, while others may be subject to federal overview.
For these reasons, a multiplicity of jurisdictions could well apply to dis-
charges within the area as to which section 302 limitations may be sought.
This situation will give rise to at least two problems under the Senate bill.
First, there is no guidance as to who shall call the hearing required to set
section 302 limitations and how it shall be run. Second, and perhaps more
importantly, what would happen under the present bill if EPA believes a more
stringent standard is necessary in a particular area but the state disagrees?
Apparently, section 402 permits under exclusive state jurisdiction would in-
corporate the less restrictive standard while other permits subject to EPA
review would apply the more stringent condition. The same sort of conflict
could occur between states. These conflicts are inevitable and would obvi-
ously undermine the area planning so necessary to make section 302 more
more than a dead letter. Yet there is no indication in the Senate bill that these
problems have yet been considered.
Lastly, another troublesome issue is posed by the treatment of trade
secrets in section 308 of S. 2770. This is the section which gives EPA
the power to conduct certain inspections and monitoring operations in order
for EPA to effectively set and enforce the effluent limitations to be created
under the bill. Once again a basic issue remains unresolved. Businessmen
are often understandably reluctant to divulge certain information about their
operations and processes for fear of turning over to a competitor hard won
competitive advantages which, if they qualify under the law of trade secrets,
are entitled to protection.
On the other hand, the Environmental Protection Agency must have reasonable
access to pertinent information necessary to accomplish its mission in re-
storing our environment. Therefore, to encourage industry cooperation we
intend to cooperate with industries subject to inspection and monitoring to
protect confidential business information from public disclosure. Defining
this area, however, presents the difficult task of achieving a fine balance
between legitimate protection and the public's right to know, as secured by
the federal Freedom of Information Act. Rather than seek this balance, the
Senate bill appears to straddle the fence. On one hand, section 308 of the
Senate bill protects "trade secrets," and no more. In the next breath, it
invokes the "purpose" of section 1905 of Title 18 of the U.S. code—a law
that protects a much wider range of information than is comprehended by the
term "trade secrets" alone. the Freedom of Information Act provides still
another standard of disclosure and includes some commercial or financial
information as well as trade secrets.
I do not suggest that this issue admits of an easy answer. In fact it presents
a most difficult problem which, together with those which I discussed earlier,
can be profitably examined and, I am sure, given much needed illumination
by your Committee.
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TITLE: Meaning of the term "Navigable Waters"
DATE: February 6, 1973
As you are undoubtedly aware, a key legal question under the Federal Water
Pollution Control Act Amendments of 1972 is what waters are included within
the term "navigable waters" as that term is defined in the bill. The basic
prohibition in §301 of discharges without a permit applies only to discharges
into "navigable waters" (§502(12)), and the term appears in numerous other
contexts.
The term "navigable waters" was defined to include "navigable waters of the
United States" in early versions of both S. 2770, andH.R. 11896, bills to
amend the Federal Water Pollution Control Act. However, the Committee
of Conference amended section 502(7) in the Federal Water Pollution Control
Act Amendments of 1972 to read as follows:
The term "navigable waters" means the waters of the United
States, including the terrritorial seas.
This change was significant. The statement of managers in the Conference
Report indicates that the new definition of "navigable waters" is to "be given
the broadest possible constitutional interpretation unencumbered by agency
determinations which have been made or may be made for administrative
purposes." S. Kept. No. 92-1236 at 144.
We have investigated the origin and history of the term "navigable waters of
the United States," in order to determine the significance of the deletion
of the word "navigable. " That phrase, as it was construed in early Supreme
Court decisions, depended upon the application of two tests. First, the
waters in question were required to be navigable in fact, which meant that
they must be capable of being used by vessels in carrying goods in commerce.
Second, the phrase "of the United States" meant that the waters had to be
capable of being used in interstate commerce. Accordingly, the deletion
of the word "navigable" eliminates the requirement of navigability. The only
remaining requirement, then, is that pollution of waters covered by the
bill must be capable of affecting interstate commerce.
It will, of course, be a major task to determine, on a case by case basis,
what waters fall within the category "waters of the United States." However,
for the purpose of making initial administrative determinations, at least the
following waters would appear to be "waters of the United States":
(1) All navigable waters of the United States;
(2) Tributaries of navigable waters of the United States;
(3) Interstate waters:
(4) Interstate lakes, rivers, and streams which are utilized
by interstate travelers for recreational or other purposes;
(5) Interstate lakes, rivers, and streams from which fish
or shellfish are taken and sold in interstate commerce; and
(6) Interstate lakes, rivers, and streams which are utilized
for industrial purposes by industries in interstate commerce.
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I believe that this board interpretation is well grounded in the language of
the statute and in the legislative history, and comports with the expressed
intent of Congress to 'Restore and maintain the chemical, physical, and
biological integrity of the Nations's waters."
§§§§§§§§
TITLE: Meaning of Best Practicable Waste Treatment Technology
DATE: August 27, 1973
In connection with our office's effort to develop a definition of "best practic-
able waste treatment technology." (BPWTT) you have requested my opinion
on certain issues related to this statutory term. Your questions, my answers,
and some additional observations, follow.
QUESTION
In defining best practicable waste treatment technology, may expections be
made to the definition based on ambient receiving water conditions (i. e.,
receiving water temperature, location, geology, salinity or dissolved oxygen
levels)?
ANSWER
Yes.
DISCUSSION
Section301(b)(2)(B) requires all publicly owned treatment works to achieve
compliance, not later than July 1, 1983, "with the requirements set forth in
section 201 (g)(2)(A) of the Act."
Section 201(g)(2)(A), in turn, requires that "alternative waste management
techniques have been studied and evaluated and the works proposed for grant
assistance will provide for the application of the best practicable waste treat-
ment technology over thelife of the works consistent with the purposes of this
title;".
While there is clear evidence of a Congressional intent that the secondary
treatment standard be technology based rather than based on ambient water
quality considerations, I/ no evidence exists of a comparable intent with re-
gard to BPWTT. Indee'H, the structure of the Act and the legislative history
of sections 301(b)(2)(B) and 201 (g)(2)(A) suggest that the water quality effects
of the various alternative treatment technologies evaluated may be considered
in determining what is "best practicable."
I/ S. Rep. 92-414 (92nd Cong., IstSess.), 43-44.
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The Act itself established a significant distinction between the BPWTT
standard and those applicable to industrial discharges or municipal plants
prior to 1983. Whereas the Administrator is directed to promulgate defini-
tions of "best practicable/best available" technology (for industrial dis-
charges) and "secondary treatment" (for municipal discharges), no corre-
sponding definition of BPWTT is required. 21 The existence of such a defini-
tion would seem to be a necessary precondition for a uniform technology
based standard. The absence of any requirement for it is thus some evi-
dence of a Congressional intent that BPWTT be distinguised from other
standards, from the standpoint of achieving uniform, technology-based
limitations.
Then Administrator Ruchelshaus testified in response to H.R. 11896 that a
"best practicable" standard should be required of municipal treatment works
"based on water quality standards. J3/ Both the Senate and House Reports
reveal a concern that treatment technologies be tailored to the impact of
water quality which is consistent with the Administrator's testimony. Two
comments in the House Report are particularly instructive.
(1) "The term 'best practicable waste treatment technology' covers a range
of possible technologies. There are essentially three categories of alter-
natives available in selection of wastewater treatment and disposal techniques.
These are 1) treatment and discharge to receiving waters, 2) treatment and
reuse, and 3) spray-irrigation or the land disposal methods. No single
treatment or disposal technique can be considered to be a panacea for all
situations...."
(2) "In arriving at the best practicable waste treatment technology, consid-
eration must be given to its full environmental impact on water, land and air,
and not simply to the impact of water quality." _4/
The Senate Committee Report similarly indicates that conventional second-
ary treatment should not be relied upon without consideration of alternative
systems which may have greater impact on water quality, i.e., contain-
ment of storm water runoff. 5/
T! Section 304 (d)(2) merely direct the Administrator to publish "information"
on alternative waste treatment management techniques and systems available
to implement section 201. A definition of BPWTT is, however, not precluded.
3/ Legislative History of the Water Pollution Control Act Amendments of
T972, §43. —
4/ H. Rep. 92-911, (92nd Cong. , 2dSess.) 87-88.
__5/ S. Rep. 92-414 (92nd Cong. , 1st Sess. ) 23-25.
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Based on this legislative history and the structural differences in the Act's
treatment of BPWTT, it is my opinion that, in developing a definition of
BPWTT, the Administrator may take into consideration the effects of alter-
native treatment technology on the ambient receiving water.
It should be made clear, however, that secondary treatment continues as a
minimum requirement of all publicly owned treatment works. Regardless
of whether, in some cases, BPWTT consists of something other than re-
finements on conventional secondary treatment, the discharge must be at
least as low as the level defined in EPA's secondary treatment definition.
QUESTION
May the definition of the best practicable waste treatment technology (or
exceptions to it) be based upon a formula relating the estimated cost of the
treatment works to the conditions of the ambient receiving waters and/or
the benefits which will accrue to it?
ANSWER
Yes
DISCUSSION
There is no explicit statutory authorization to consider cost at all in de-
termining the best practicable waste treatment technology. Nevertheless,
it seems clear that cost should be considered in making this determina-
tion. Some sort of rough correspondence between cost and benefit inheres
in the concept of "practicable." The Act itself clearly requires considera-
tion of cost in determining the standards to which industrial point sources
must adhere in 1977 and 1983. Thus, section 304(b)(l)(B) requires the Ad-
ministrator to consider "the total cost of application of technology in re-
lation to the effluent reduction benefits to be achieved from such applica-
tion." Section 304(b)(2)(B) does not explicitly mandate a cost benefit balanc-
ing; nevertheless, it does require the Administrator to consider the "cost
of achieving such effluent reduction." It is hard to credit a Congressional
intent to prevent the Administrator from considering cost of achieving best
practicable waste treatment technology for municipal plants when the ques-
tion of cost and its proper consideration played such a significant part in the
Congressional consideration of the bill.
Since ambient receiving water conditions may be considered in establishing
the definition of BPWTT, it is my opinion that, in relating costs of treatment
to benefits derived, the benefits may include, not only those technologically
measurable improvements in the polluting character of the effluent discharge,
but also the marginal benefits which will accrue to the receiving waters.
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QUESTION
May exceptions to the definition of best practicable waste treatment tech-
nology be made on the basis of the population served by the size of the treat-
ment works ?
DISCUSSION
"Exceptions" to the definition are not contemplated by the Act. Nor is
there anything in section 304(b)(2) or section 201 comparable to the provisions
in section 304(b)(l)(B) and 304(b)(2)(B) which identify the factors which the
Administrator must take into account in determining "best practicable con-
trol technology currently available" and "best available control technology
economically achievable."
On the other hand, nothing in the Act or the legislative history suggests a
congressional intent to exclude considerations of factors similar to those
set out in section 304(b) in the context of municipal plant technology.
Senate Report 92-414 indicates that land disposal techniques must be consid-
ered and that in doing so the effects on land and plant life must be evaluated.
House Report 92-911 contains an even broader discussion of alternatives
indicating that "no single treatment or disposal techniques can be considered
to be a panacea for all situations. The selection of the best alternative can
only be made after careful study. ..." In defining "best practicable waste
treatment technology" for a given case, consideration must be given to new
improved treatment techniques which have been developed and are now con-
sidered to be ready for full scale operations."
Hence, the omission in the Act of a list of specific considerations cannot
be taken as evidence of congressional desire to exclude any particular fac-
tors from consideration. The most reasonable conclusion is that those factors
listed in section 304(b) which are relevant to municipal plants may be con-
sidered as well as other relevant factors of a similar nature not listed there.
This may include the size of a treatment facility if evidence indicates that
cost or other factors make the same level of effluent reduction not practic-
able. As in the subcategorization of industrial categories for the effluent
guidelines now being issued pursuant to sections 304 and 306, however, it is
imperative that there be a sound factual basis supporting any distinction in
the definition of best practicable waste treatment technology. The necessity
for factual support applies to a proposed distinction on the basis of size
of treatment facility or population served.
Finally, I must point out that the document entitled "information on Alter-
native Waste Management Techniques and Systems to Achieve Best Practic-
able Treatment Technology" dated July 23, 1973, does not appear to satisfy
the requirements of section 304(d)(2) of the Act.
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As indicated in my memorandum to you dated March 13, 1973, section 304(d)
(2) does not require a "best practicable treatment" standard for publicly owned
treatment works. Such a standard is authorized, though not required, by
other sections of the Act and there is no legal objection to issuing such a
standard in conjunction with the issuance of information on alternative waste
treatment management techniques under section 304(d)(2). What must be em-
phasized, however, is that section 304(d)(2) does require EPA to issue in-
formation on alternative waste treatment management techniques and systems
available to implement section 201.
The House Report states:
"The term 'best practicable waste treatment technology'
covers a range of possible technology. There are essen-
tially three categories of alternatives available in selec-
tion of waste water treatment and disposal techniques.
These are (1) treatment and discharge to receiving waters,
(2) treatment and reuse, and (3) spray-irrigation or other
land disposal methods. No single treatment of disposal
techniques can be considered a panacea for all situations
and selection of the best alternative can only be made after
careful study.
Particular attention should be given to treatment and
disposal techniques which recycle organic matter and
nutrients within the ecological cycle.
In defining 'best practicable waste treatment technology'
for given case, consideration must be given to new or
improved treatment techniques which have been developed
and are not considered to be ready for full scale applica-
tion. These include land disposal, use of pure oxygen
in the activated sludge process, physical chemical treat-
ment as a replacement for biological treatment, phos-
phorous and nitrogen removal, collection line treatment,
and activated carbon absorption for removal of organics.
Planners must also give considerations, however, to
future use of new techniques that are now being developed
and plan facilities to adapt to new techniques." H.R.
92-911, 92nd Cong., 2nd Sess. at 87-88
"Section 304(d)(2) requires the Administrator to publish
information on alternative waste treatment management
techniques and systems available to implement section
301 of this Act. The Committee intends that the Adminis-
trator shall emphasize land disposal techniques. ... It
is mandatory that information on such techniques be kept
up to date and published as it is available in order that
the planning as required in section 208 and the considera-
tion of alternatives as required in section 201 can be
based upon the latest developments in land disposal."
House Report 92-911, 92nd Cong., 2nd Sess. at p. 108-
109.
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In order to comply with the requirements of section 304(d)(2) of the Act some
minimal degree of discussion of each of the alternatives listed in the House
Report and identification and discussion of any additional newly developed tech-
nologies is required. The June 19, 1973, draft of the information document
contained, in pages 10 through 15, information responsive to the mandate of
section 304(d)(2) although in a highly abbreviated form.
In short, the document presently entitled "Information on Alternative Waste
Management Techniques and Systems to Achieve Best Practicable Treatment
Technology" contains essentially a definition of best practicable treatment
technology rather than information on alternative waste management techniques
and systems available to achieve it. While there is no legal objection to the
issuance of such a definition, and while it may prove helpful in implementation
of the grants and permits programs, it is not sufficient to satisfy the require-
ments of section 304(d).
§§§§§§§
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NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
(PERMIT PROGRAM SECTION 402)
TITLE: The Statutory Background and Legislative History
DATE:
The permit program regulations, 33 CFR 209. 131, 35 Fed. Reg. 6564, de-
rive their authority primarily from section 13 of the Rivers and Harbors Act
of 1899, 33 U.S.C. 407. In pertinent part, section 113 makes it illegal to
"throw, discharge, or deposit* * *either from out of any ship, barge or other
floating craft of any kind, or from the shore, wharf, manufacturing establish-
ment or mill of any kind, any refuse matter of any kind or description whatever
other than that flowing from streets and sewers and passing therefrom in a
liquid state, into any navigable water of the United States, or into any tributary
of any navigable water from which the same shall float or be washed into such
navigable water* * *provided* * *, That the Secretary of War, whenever in the
judgment of the Chief of Engineers anchorage and navigation will not be injured
thereby, may permit the deposit of any material above mentioned into navigable
waters, within limits to be defined and under conditions to be described by
him, provided application is made to him prior to depositing such material;
and whenever any permit is so granted the conditions thereof shall be strictly
complied with, and any violation thereof shall be unlawful.
The Supreme Court has held that section 13's prohibition against discharges
must be read broadly to protect against pollution of the nation's waterways
as well as against obstructions to navigation. United States v. Standard
Oil Co., 384 U.S. 224; see United States v. Republic Steel Corp., 362 U.S.
482. And in Zabel v. Tabb, 430 F. 2d 231-214 (C.A. 5). the Fifth Circuit
pointed out that the Committee on Government Operations of the Hoiise of
Representatives had urged the Secretary of the Army to use the permit-granting
power of the Rivers and Harbors Act of 1899 (including, of course, section 13)
to protect environmental quality. The court used this point to support its
holding that the Secretary of the Army was " entitled, if not required to con-
sider ecological factors" in determining whether to issue a permit to fill in
11 acres of tidelands under section 10 of the Rivers and Harbors Act.J./
B. The creation of the Environmental Protection Agency
On July 19, 1970, the President sent to Congress Reorganizaion Plan No. 3
of 1970, Stat. , creating the Environmental Protection Agency and
transferring to it those parts of existing federal agencies which dealt with
environmental matters. EPA was given overall responsibility within the fed-
eral government for protection of the environment. See the President's Mes-
sage to Congress of July 9, 1970 (quoted in Environmental Reporter 21:0261,
0263). To the new agency were transferred the Federal Water Quality Admin-
istration (from the Department of the Interior), the National Ar Pollution
I/ Section 10, 33 U.S.C. 403, provides, intra alia, and similarly to section 13,
lhat no wharf, pier, dolphin, boom, etc., may be built in any navigable water
and no excavation, fill, or other modification of the course, location, condi-
tion, or capacity of any navigable water can be undertaken without the authori-
zation of the Secretary of the Army. See United States v. Republic Steel
Corp., supra.
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Control Administration (from the Department of Health, Education and Wel-
fare), and other responsibilities as to control of pollution by pesticides, radi-
ation, and solid wastes from the Department of Agriculture and the Atomic
Energy Commission in addition [to] the Departments of Interior and HEW.
C. The creation of the Refuse Act Permit Program
Shortly after EPA began operation, the President issued Executive Order
11574, creating the Refuse Act Permit Program under the authority of sec-
tion 13 of the Rivers and Harbors Act (and also under the authority of the
Federal Water Pollution Control Act, 33U.S.C. 1151, the Fish and Wildlife
Coordination Act, 160 U.S.C. 661, and the National Environmental Policy
Act, 42 U.S.C. 4321).
The Refuse Act Permit Program, as created by the Executive Order, pro-
vides a comprehensive and efficient means for abating and controlling pollu-
tion of the nation's waterways resulting from discharges into navigable water-
ways and their tributaries. The program is administered jointly by the Secre-
tary of the Army and the Administrator of EPA.
Section 2 of the Executive Order provides that the Secretary of the Army
shall be responsible for "granting, denying, conditioning, revoking, and sus-
pending Refuse Act permits." Subsection 2(A) then provides that the Secretary
of the Army "shall accept the findings, determinations, and interpretations
which the Administrator [of EPA] shall make respecting applicable water qual-
ity standards and compliance with those standards in particular circumstances
* * *. A permit shall be denied * * * where issuance would be inconsistent
with any finding, determination, or interpretation of the Administrator [of
EPA] pertaining to applicable water quality standards and considerations."
Stated briefly, then, the Executive Order provides that in determining whether,
and on what terms, to issue a permit under section 13 for any discharge into
a navigable water or tributary thereof, the Secretary of the Army shall accept
determinations of EPA as to the effects of the proposed discharge on water
quality and shall refuse the permit where EPA determines that the proposed
discharge would be inconsistent with water quality standards^/ and related
water quality considerations.
In particular, 33 CFR 209. 131(d)(ll) states those situations in which a permit
will not be granted:
No [section 13] permit will be issued:
(i) In cases where the applicant [for a permit], pursuant to section 21(b)(l)
of the Federal Water Pollution Control Act, as amended, is required
to obtain a State or other appropriate certification that the discharge
or deposit will not violate applicable water quality standards and such
certification was denied;
(ii) For discharges or deposits of harmful quantities of oil, as defined
pursuant to section 11 of the Federal Water Pollution Control Act;
^/ "Water quality standards" is a term of art referring to standards for the
protection of water quality set by the states and EPA pursuant to section 10
of the Federal Water Pollution Control Act, 33 U.S.C. 1161. See fn. 3, infra.
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(iii) If its issuance would be inconsistent with any finding of the Ad-
ministrator [of EPAj concerning applicable water quality standards
and related water quality considerations;
(iv) For materials designated as hazardous substances under regulations
to be promulgated by the Administrator of EPA under section 12
of the Federal Water Pollution Control Act, as amended, except
with the approval of the Administrator;
(v) If the proposed discharge or deposit will contain a toxic or other
substance (other than materials designated as hazardous under
regulations to be promulgated by the Administrator of EPA under
section 12 of the Federal Water Pollution Control Act) and, if,
on the advice of the Regional Representative of EPA, it appears
that a permit cannot be conditioned to ensure that the proposed dis-
charge or deposit will not pose any significant risk to health or
safety, District Engineers are precluded from issuing permits
in such cases. The listing is not intended to identify all of the
cases or circumstances in which the denial of a permit may be
appropriate.
Thus, the minimum conditions for the granting of a permit are: the deter-
mination by both the appropriate state and the Administrator of EPA that the
applicable water quality standards would not be violated thereby, and the fur-
ther determinations by the Administrator that the proposed discharge would
not deposit a harmful quantity of oil, would not contain a hazardous material
as defined by the Administrator, and would not contain toxic or other sub-
stances posing significant risk to health and safety. JS/
137 The primary conditions required by 33 CFR 209. 131(d)(ll) to be met are
requirements of compliance with sections 10 (concerning water quality stand-
ards), 11 (control of pollution by oil) and 12 (control of pollution by hazar-
dous substances), or the Federal Water Pollution Control Act, 33 U.S.C.
1160-1162 (Supp V). The FWPCA is the fundamental federal law for the con-
trol of water pollution. Pursuant to the procedure set in section 10(c) of
that Act, the states and the Administrator (and his predecessor, the Secretary
of the Interior) have established water quality standards for the interstate
waters of the nation. Such standards include both water quality criteria, which
set levels of quality for such heavy metals such as mercury and chromium,
harmful bacteria, poisonous chemicals, dissolved and suspended solids, etc.)
and implementation plans, which generally are schedules with the force of
law requiring ^construction of treatment works or other pollution abatement
measures (section 10(c)(A) and (B). See 18 CFR 620.)
With respect to section 11, 18 CFR 610.3, promulgated by the Secretary of
the Interior as predecessor to the Administrator, defines the deposit of a
harmful quantity of oil (prohibited by section 11) as that amount which will
"cause a film or sheen upon or discoloration of the surface of the water or
adjoining shorelines or cause a sludge or emulsion to be deposited beneath
the surface of the water or upon adjoining shorelines." The regulation defining
hazardous substances under section 12, FWPCA, are in the process of pre-
paration at EPA. .
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The minimum conditions that must be met for permit issuance are thus broadly
protective of water quality, and are indeed those developed pursuant to the
Congressional mandate of the Federal Water Pollution Control Act (see fn 2,
supra).
2. The permit program properly regulates deposits into non-navigable tribu-
taries of navigable water.
The plaintiffs assert that section 13 does not authorize the granting of permits
for discharges into non-navigable tributaries of navigable waters. However,
contrary to plaintiffs' claims, their view of the meaning of section 13 is
not at all compelled by its language, would produce strained and highly con-
torted --if not irrational -- results, and is wholly inconsistent with the purpose
and legislative history of section 13.
A. The statutory language and purpose.
Plaintiffs concede that section 13's provision against depositing refuse pro-
hibits deposits "into navigable water of the United States or into any tributary
of any navigable water from which the same shall float or be washed into such
navigable water." But plaintiffs rely on the second proviso in section 13 --
which allows the Secretary of the Army in proper cases to permit deposits
only "in navigable waters" without any mention of non-navigable tributaries --
to conclude that section 13 does not authorize the Secretary of the Army to
grant permits for discharges into tributaries.
When the section is read in context, however, it is clear that plaintiffs' con-
clusion does not follow. The basic provision of section 13 is the prohibition
of discharge or deposit of any refuse into any navigable water or into a "tribu-
tary "from which the same shall float or be washed into such navigable water."
It is clear from this language that the provision concerning tributaries exists
not to protect tributaries as such, but rather because some discharges into
tributaries may float or be washed into navigable waters and cause the same
harm there as a direct discharge into the navigable water would cause. In
effect, the section in terms recognizes that in many cases, a discharge into a
non-navigable tributary amounts to a discharge into a navigable water, and
prohibits such discharges for that reason only. To put it another way, sec-
tion 13's purpose is the protection of navigable waters; that section gives
attention to discharges into non-navigable tributaries only in those limited
cases where the discharge would wash into a navigable water. 47
In this light it would be senseless to read section 13 to provide that the Secre-
tary may grant permits for allowable discharges into navigable waters but
may not grant such permits for similar discharges into non-navigable tribu-
taries of navigable waters. For if the Secretary and the Administrator of EPA
4/ In many situations, a discharge into a non-navigable tributary might not
wash into a navigable water (even though the discharge might harm the water
quality of the tributary near the source of the discharge). For example, a
discharge of organic wastes might become entirely degraded before washing
a navigable water, or a discharge of suspended solids -- causing, say, in-
creased turbidity near the point of discharge -- might coagulate and settle
out before reaching a navigable water. Such discharges, even though locally
harmful, could not be controlled by section 13.
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properly determine that a particular discharge into a navigable water maybe
permitted, there is no reason consistent with the purpose of section 13 why
a discharge of similar effect should not be permitted into a non-navigable
tributary which would wash into that navigable water. In either case, the
same discharge into the navigable water would result - and this is the sole
concern of section 13. To repeat, under section 13, deposits into non-
navigable tributaries are significant only where such deposits are in effect
deposits into navigable waters because they will wash into navigable waters.
Therefore, among the kinds of "deposit of *** material in *** navigable
waters" which can be permitted under the second proviso of section 13 -
where the deposit is permissible under the strict standards of the permit
program—are deposits into non-navigable tributaries when those are car-
ried or washed into navigable waters. Although the second proviso of section
13 does not in terms mention tributaries, any other result would be wholly
inconsistent with the purpose of section 13. _5/
As the Supreme court said in United States v. Standard Oil Co., supra,
384 U.S. 224, 225-265, in a similar context:
[Wjhatever maybe said of the rule of strict construction,
it cannot provide a substitute for common sense, prece-
dent and legislative history. We cannot construe § 13
of the Rivers and Harbors Act in a vacuum. Nor can we
read it as Baron Parke would read a pleading.
The plaintiffs have failed to explain how their reading of section 13 can be
squared with that section's purpose. Plaintiffs do suggest that Congress
may intentionally have failed to provide permit-granting power to the Secre-
tary of the Army with respect to discharges into non-navigable waters be-
cause of Congressional desire "to allow the states to control and regulate
their tributary streams***. " (Plaintiffs' motion for summary judgment
p. 4). But the plaintiffs' reading of section 13 would greatly diminish the
power of the states to regulate such non-navigable waters. In the plain-
tiffs' view, section 13 prohibits discharges into both navigable and non-
navigable waters (id. at p. 3); they further assert that the Secretary of
the Army is authorized to permit proper discharges only into navigable
waters. Therefore, according to their reading of the statute, all discharges
into non-navigable waters would be flatly prohibited by federal law, thereby
entirely pre-empting any state regulation at all. Contrary to plaintiffs'
claims, then, their reading of section 13 would leave the states no leeway
_£/ It is quite significant that, if the plaintiffs' reading of section 13 pre-
vails, it would bring about a similarly curious result when applied to the
first proviso of section 13. That portion of the section states that nothing
herein contained shall extend to, apply to, or prohibit the operations in
connection with the improvement of navigable waters or construction of
public works, considered necessary and proper by the United States officers
supervising such improvement or public works." Again, if the term "navig-
able waters" as used in this proviso does not include non-navigable tribu-
taries where relevant, then the proviso would be inapplicable to operations
in connection with the improvement of" non-navigable waters which result
in discharges washing into navigable waters - a result clearly not intended
by Congress.
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whatever to "control and to regulate their tributary streams" with respect
to the discharges concerned in that section. 6/
It need be added only that plaintiffs' reading of section 13 is inconsistent
with the legislative history of that section. The Supreme court noted in
United States v. Standard Op Co., supra, 384 U. S. at 227-228, that the
Rivers and Harbors Act of 18W is a codification of a number of pre-
existing statutes, and, as the court held
the 1899 Act***was no more than an attempt to consoli-
date these prior Acts into one. It was indeed stated by
, the sponsor in the Senate to be "in accord with the
statutes now in existence, only scattered "*** from the
beginning of the statutes to the end" (32 Cong. Rec.
2296), and reflecting merely "[v]ery slight changes to
remove ambiguities. " Id., p. 2297.
Section 13 itself was added to the bill on the floor of the Senate, where
it was introduced as part of a general codification prepared by the War
Department. The sponsor, Senator Frye, placed upon the record a letter
from the War Department, which described the changes as "[containing] no
new matter, but simply [revising] and [making] clearer and more definite
laws that have already been enacted. " 32 Cong. Rec. at 2297.
The source from which section 13 was codified in the 1899 Act was section
6 of the River and Harbor Act of 1890, 26 Stat. 453, which pertinently
provided:
That it shall not be lawful to cast, throw, empty or
unload*#*from or out of any ship**#or other craft, or
from the shore, pier, wharf, furnace, manufacturing
establishments, or mills of any kind whatever, any bal-
last, stone, slate, gravel, earth, rubbish, wreck, filth,
slabs, edgings, sawdust, slag, cinders, ashes, refuse,
or other waste of any kind, into any port, road, road-
stead, harbor, haven, navigable river, or navigable
waters of the United States which shall tend to impede
or obstruct navigation* #*Provided, that nothing herein
fe/ Indeed, far greater latitude would be given to the states by a holding
Siat permits may be issued for discharges into non-navigable waters. For
pursuant to section 21 (b) of the Federal Water Pollution Control Act, 33
U.S. C. 1171(b), a state may prevent any federal permit or license (not
only section 13 permits) from being issued where the licensed or permitted
activity would violate applicable water quality standards. Thus, under our
view of section 13, the concerned state would retain vital power to condi-
tion the terms on which permits could be granted, any discharge into a non-
navigable tributary (which discharge would be washed into a navigable water)
leaving the state no say whatever as to such discharges.
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contained shall extend or be construed to extend to***
prevent the depositing of any substance above mentioned
under a permit from the Secretary of War, which he
is hereby authorized to grant, in any place designated by
him where navigation will not be obstructed thereby.
This earlier statute then, prevented discharges into navigable rivers and
waters, without in terms mentioning non-navigable tributaries; it further
authorized permits by the Secretary of War for deposits "in any place. "
If section 13 of the Rivers and Harbors Act of 1899 was merely a codifica-
tion and clarification of earlier law--as indeed the Supreme Court has
held--then the reading of section 13 contended for the plaintfiffs must be
rejected. 7/ For the legislative history shows that Congress did not intend
any abrupt and sweeping change of the kind contended for by plaintiffs,
which would prohibit any and all discharges into non-navigable tributaries
with no possibility of obtaining a permit for a harmless discharge.
3. In any event, a decision on the merits of plaintiffs' claim would be
premature.
77 Another possibility which suggests itself as a purpose of the newlanguage
in section 13 is that under earlier law dischargers may have attempted
to avoid the prohibition by asserting that their deposits were made into
non-navigable waters. To answer such a claim each time it was made would
have necessitated the determination of whether the waters in question were
navigable--and navigability is of course a Constitutional concept. Thus, a
Constitutional issue would have to have been determined each time the
claim was made that deposits were being made in non-navigable waters.
This obviously unacceptable state of affairs would have been relieved by
adding to the law--as section 13 did--an explicit prohibition that deposits
in non-navigable tributaries which washed into navigable waters were in-
cluded under the Act. This new provision was Constitutionally valid be-
cause it protected navigable waters, and effective because it would have
brought within its ambit all or nearly all deposits being made into waters
whose navigability was in question (the navigability of such waters, of
course, generally becomes beyond dispute at some point downstream of the
point in question). Of course, if such was a purpose of section 134, it
is inconsistent with the reading given that section by the plaintiffs.
It is noteworthy that the reading of section 13 asserted by plaintiffs would
also create a distinction between the effect of the section on navigable
waters (where permits would be all owed) as opposed to non-navigable tribu-
taries (where they would not). This reading would necessitate a Constitu-
tional determination each time it was claimed that the permit provision did
or did not apply to a particular discharge. It is most difficult to believe
that Congress could have intended the enormous administrative difficulty
and the great amount of Constitutional litigation that would be engendered
by this result.
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We have shown that there is no warrant to plaintiffs' contention that section
13 does not authorize the Secretary of the Army, in proper cases, to grant
permits for discharge of refuse into non-navigable tributaries of navigable
waters, and we believe, accordingly, that plaintiffs' complaint should pre-
sently be dismissed. However, should the Court not be disposed so to
hold at this point as a matter of law, we now show that it would be in-
appropriate for the Court presently to decide the merits of the plaintiffs'
claim.
The plaintiffs assert that they will be harmed by the granting of permits
for discharges into non-navigable tributaries because such permit issuances
"will result in a cloak of legality being placed upon serious pollution of the
Grand River and other waterways of the United States***." (Complaint, p. 3)
In other words, the injury claimed by plaintiffs is that the permit program
will not be used as a measure to curb and to abate pollution, but rather
will be used by the Secretary of the Army and the Environmental Protection
Agency as a method of permitting "serious pollution" to take place. We
submit that it is premature for the plaintiffs to claim that the permit program
wil be so administered. At the very least, this Court should await con-
crete facts, arising from the grant or denial of particular permits, for
a determination of what the results of the program will be, rather than
accepting the plaintiffs' unsupported claims on this score. For if, as it is
most reasonable presently to assume, the adminstration of the permit pro-
gram leads to abatement and control of water pollution rather than to the
licensing of "serious pollution", then the plaintiffs will not have been in-
jured in the way they presently assert, and without such injury to their
interests will not be in a position to challenge the legality of the program.
We note preliminarily that, as we have discussed extensively at pages 3-7,
the permit program regulations, at a minimum, condition the grant of a
permit on compliance with the basic provisions of the Federal Water
Pollution Control Act as to water quality standards and control of pollution
by oil and hazardous materials. Therefore it can hardly be assumed that
the administration of the program will lead to the placing of a "cloak of
legality"<-on "serious pollution." Moreover, as evidence by its creation
by Executive Order, the permit program is a major federal effort to con-
trol pollution on the nation's waterways.
The Supreme court has held that in cases like the present, where "matters
of serious public concern" are involved, with "delicate problems***£whose]
solution is bound to have far-reaching import," then adjudication 'should
rest on an adequate and full-bodied record." Public Affairs Press v.
Rickover, 369 U.S. Ill, 112-113. The Court in -Rickover also cited its
decision in Eccles v. Peoples Bank, 333 U.S. 426-431, where it said,
"Especially where governmental action is involved, courts should not in-
tervene unless the need for equitable relief is clear, not remote or specula-
tive." And see Public Service Commission v. Wyckoff. 344 U.S. 237,
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241. 8/ And the Court of Appeals for the District of Columbia Circuit has
also field that where there are public issues of "importance and complexity,"
they "should not be decided on speculative facts as an abstract question."
Industrial Union Department v. Barber-Col eman Company. 348 F. 2d 787,
789-790 (C.A.D.C.) (citing, inter alia, Public Affairs Press v. Rickover.
supra), to the same effect is Lampkin v. Connor, 360 F. 2d 505, 509-510
(C.A.D.C.)
Beyond question the instant case presents issues of great current impor-
tance; and, moreover, the best can be said for the plaintiffs' assertion
that serious pollution will be permitted under the program is that this claim
is the sheerest speculation. Therefore, a declaratory judgment is wholly
inappropriate at the present time, and will remain so at least until plaintiffs
can present factual records seeking to support their assertions. 9/ We
stress at this point that, under the permit program regulations, public
notice of all applications must be given, and any interested party may
comment upon any application. Such comments "will be retained and will
be considered in determining whether the permit applied for should be
issued." 33 CFR 209.131(j)(2). In addition, public hearings may be held
in connection with permit applications. 33 CFR 209. 131(k). This regulation
provides that, in determining whether to hold hearings with respect to
particular permit applications, "consideration will be given to the degree of
interest by the public in the permit application, requests by the applicant
or responsible Federal, State or local authorities, including members of
Congress, that a hearing be held, and the likelihood that information will be
presented at the hearing that will be of assistance in determining whether
the permit applied for shall be issued." Id. at subsec. (k)(l). Where
hearings are held, transcripts become a part of the permit application
record. Id. at subsec. (k)(3)(iii). Therefore, not only are the plaintiffs'
present allegations speculative and their cause hypothetical, but they are
also in the position--as are all other interested persons--to present evi-
1[7Professor Wright has summarized the Supreme Court's rulings on this
subject:
The Supreme Court has indicated a very marked reluc-
tance to have important issues of public law decided by
declaratory judgments. It has said that declaratory judg-
ment procedure should not be used to preempt and pre-
judge issues that are committed for initial decision to
an administrative body or special tribunal, and warned
against grant of a declaratory judgment involving an im-
portant question of public law on the basis of a sparse
and inadequate record.
Wright, Federal Courts (2d ed. 1970) §100 at p. 449 [Footnotes omitted].
Q_l Because plaintiffs cannot show more than the most speculative claim
of harm, the impact of the permit program regulations is not sufficiently
direct and immediate as to render the question presently "ripe" for judicial
review of the regulations. Compare Toilet Goods Assn. v. Gardner. 387
U.S. 158, 163-166, with Abbott Laboratories v. Gardner, 387, U.S. 136,
152-156.
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dence and their views and have those views considered and made a part of
the record in particular permit application proceedings. Only after such
proceedings have taken place and a record has been made will it be possi-
ble to discern whether the plaintiffs can add substance to their claims.
It need be added only that the plaintiffs' Constitutional assertion that the
permit program will harm the right to a clean and healthful environment
which they assert exists under the Fifth and Ninth Amendments (Complaint,
p. 5) is, if anything, even less appropriate for present judicial determina-
tion. Not only is the factual situation asserted to support this claim equally
unclear, but there is at least very substantial doubt that courts may de-
limit such rights under these amendments. See, e.g., Ferguson v. Skrupa
372 U.S. 726, 729-732. - a - — - —
The permit program regulations validly provide that no environmental im-
pact statement under section 102(2)(C) of the National Environmental
Policy Act need be prepared where a permit application raises questions of
water quality only.
In their second claim for relief (Complaint, p. 4-5), the plaintiffs assert
the invalidity of 33 CFR 209. 131(1)(2), which provides that the Secretary of
the Army will not file an environmental impact statement, as described in
section 102(2)(c) of the National Environmental Policy Act, 42 U.S.C.
4332(2)(C), in connection with permit applications that concern water quality
matters only. Plaintiffs' claim is that the language of section 102(2)(C) of
the NEPA flatly requires all federal agencies to file statements as to the
impact of federal activities which would significantly affect the environment.
As we show herein, however, section 102(2)(C) was not addressed to these
federal agencies which regulate the environment, but rather was intended
to force those federal agencies which had not previously considered environ-
mental matters to consider such questions in administering their programs.
Therefore, environmental impact statements are not required when an
agency whose primary function is to regulate the environment engages in
such regulatory activity. And since the permit program requires that
EPA make decisions as to matters of water quality in determining whether
and on what terms to issue section 13 permits, section 102(2)(C) of the
NEPA does not require the filing of an environmental impact statement
when an application for a section 13 permit raising only issues of water
quality is acted upon. JJO/
TU7 33 CFR 209. 131(1)(2) states that environmental impact statements are
not required "where water quality considerations alone are involved* * *be-
cause these matters are specifically addressed under subsections 21(b) and
(c), the Federal Water Pollution Control Act, as amended [33 U.S.C. 1171
(b) and (c)]." This reasoning may have been called into question by the
decision of the Court of Appeals for the District of Columbia Circuit in
Calvert Cliffs Coordinationg Committee v. Atomic Energy Commission,
F. 2d. (C.A.D.C. Nos. 24839, 24&71, July 23, 1971J. However, we
show herein that the provision of 33 CFR 209.131 not requiring environ-
mental impact statements where water quality only is concerned is supported
by the purpose and explicity legislative history of the NEPA itself, even
if not by section 21(b) of the FWPCA. And, as we discuss more fully
[Fn. cont'd]
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The fundamental purpose of the NEPA was to recognize that protection of
the environment is a national policy to be studied and considered by all
federal agencies in administering their programs. The District of Columbia
Circuit, in C alver t Cliff s C o or din ating C ommitte e v. Atomic Energy Com-
mission F. 2d(C.A.D.C. Nos. 24839 and 24871, July 23, 1971), said,
"Perhaps the greatest importance of NEPA is to require the Atomic Energy
Commission and other agencies to consider environmental issues just as
they consider other matters within their mandates" (slip opinion, p. 5,
emphasis in original). The court noted that the consideration of environ-
mental issues along with the other matters in the agencies' control "must
involve a balancing process" to be carried out by such agencies (id. at 7).
The court then pointed out that the requirement in section 102(2)(C) of the
NEPA that agencies prepare an environmental impact statement to accom-
pany actions affecting the environment exists "[t]o ensure that the balancing
analysis is carried out and given full effect***" (id. at p. 8). Section 102
(2)(C) also requires that before making such statements, the agencies "con-
sult with and obtain the comments of any Federal agency which has juris-
diction by law or special expertise with respect to any environmental impact
involved."
The balancing process described by the court of appeals, and the environ-
mental impact provision in aid of that process (with its requirement of
consultation with and comments by agencies expert in the environment),
are clearly intended for use by those federal agencies with other substantive
programs which must now take environmental factors into account for the
first time. These provisions and their purpose do not rationally apply
to agencies whose sole task is regulation of the environment: such regula-
tory agencies need perform no balancing since they have no other substan-
tive programs to balance against; moreover, section 102(2)(C) could hardly
have been intended to apply to agencies expert in environmental matters,
since it would require such agencies to consult with themselves and obtain
their own comments before taking action.
The legislative history of the NEPA fully confirms that section 102(2)(C)
was not intended to require agencies with regulatory jurisdiction over
10 / [Cont. ]
Below, the court in Calyert Cliffs appeared to recognize that the NEPA
was intended to require federal agencies which had previously refused or
been unable to do so, to consider environmental matters in administering
their programs (e. g., slip opinion at pp. 5, 7, 8); specifically, the court
held that under the NEPA the Atomic Energy Commission, in considering
whether to license the construction of a nuclear power plant, may not limit
its inquiry as to water quality matters to state certifications of compliance
with water quality standards, but must independently balance such con-
siderations against benefits to be gained from building the plant. The
Calvert Cliffs decision thus concerns only the effect of the NEPA on an
agency--the AEC--which had previously not taken environmental matters
into account in its activities. The court did not discuss the relationship
of the NEPA to federal activities exclusively concerned with environmental
regulation.
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environmental matters to file impact statements upon taking such regulatory
action. In recommending to the Senate that it adopt the Conference Report
(H.R. Rep. 91-765, 91st Cong., IstSess.), Senator Jackson, the sponsor
of the NEPA, presented a document called "Major Changes in S. 1075 as
passed by the Senate," which detailed the changes made by the conference
version from the original bill as it had passed the Senate (115 Cong. Rec.
40417). The statement included the following concerning section 102(2)(C):
Many existing agencies such as the Nation Park Service,
the Federal Water Pollution Control Agency [a prede-
cessor of EPA; see p. 2, supra] and the National Air
Pollution Control Administation [another predecessor .of
EPA] already have important responsibilities in the area
of environmental control. The provisions of Section 102
(as well as 103) are not designed to result in any change
'in the manner in which they carry out their environmental
protection authority. This provision is, however, clearly
designed to assure consideration of environmental matters
by all agencies in their planning and decision making--
especially those agencies who now have little or no leg-
islative authority to take environmental considerations
into account.
(115 Cong. Rec. 40418, emphasis added). This was unequivocally stressed
by Senator Muskie shortly afterward. After discussing and quoting the
language from the "major changes" document quoted above, Senator Muskie
said:
It is clear then, and this is the clear understanding of the
Senator from Washington [Senator Jackson] and his col-
leagues, and of those of us who serve on the Public Works
Committee, that the agencies having authority in the environ-
ment field will continue to operate under their legislative
mandates as previously established, and that those legisla-
tive mandates are not changed in any way by sections 102-5.
(115 Cong. Rec. 40423). The inapplicability of section 102 to agencies which
regulate the environment was further stressed by Senator Muskie1 s repsonse
to a question from Senator Boggs:
Mr. Boggs. Am I correct that the thrust of the direc-
tives contained in S. 1075 deals with what we might call
the environmental impact agencies rather than the environ-
mental enhancement agencies, such as the Federal Water
[Quality] Administration and the National Air Pollution
Control Administration?
Mr. Muskie. Yes. Sections 102 and 103, and I think
section 105, contain language designed by the Senate
Committee on Interior and Insular Affairs to apply strong
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pressures on those agencies that have an impact on the
environment--the Bureau of Public Roads, for example,
the Atomic Energy Commission, and others. This strong
language in that section is intended to bring pressure on
those agencies to become environment conscious, to bring
pressure upon them to respond to the needs of environ-
mental quality***.
With regard to the environmental agencies such as the
Federal Water [Quality] Administration and the Air Quality
Administration, it is clearly understood that those agencies
will operate on the basis of the legislative charter that
has been created and is not modified in any way by S.I075.
(115 Cong. Rec. 40425).
these statement by the two principal supporters of the NEPA could hardly
make it clearer, first, that the Act was intended to make those federal
agencies who had not earlier done so considerate of environmental problems
in conducting their programs, and, second, that section 102 of the Act was
directed by Congress solely at those agencies and was not intended to apply
to agencies which regulate the environment.
As we have discussed, the permit program is a regulatory device by which
discharges into navigable streams and their tributaries may be controlled
to benefit water quality. Furthermore, as we have also noted, permit de-
cisions in matters of water quality, are made by EPA, which is not the
major federal agency with responsibility for regulating the environment.
In such cases, as we have indicated, Congress did not intend such a regula-
tory agency to be subject to section 102. Moreover, in such cases there
is no need to apply the balancing test which the court in Calvert Cliffs stated
was the purpose of section 102; and thus there is little purpose to pre-
paring an environmental impact statement. Indeed , as we have noted
above, compliance with section 102 would require EPA to submit the state-
ment preliminarily to itself for comment--hardly a result that Congress
could have intended.
We stress at this point that the permit program regulations do not require
an environmental impact statement only where water quality issues are all
that is involved. The regulations explicitly state that where additional en-
vironmental effects may be felt, an environmental impact statement must
be prepared.11/
11 / In particular, 33 CFR 209.131(b)(2) provides:
Section 102(2 )(C) statements will not be required in permit
cases where it is likely that the proposed discharge will
not have any significant impact on the human environment.
Moreover, the Council on Environmental Quality has ad-
vised that such statements will not be required where the
only impact of proposed discharge or deposit will be on
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Thus, only where the program operates as essentially a water quality re-
gulatory program administered by the Environmental Protection Agency does
the permit program dispense with the requirement of an environmental
impact statement. And this is precisely the sort of regulatory activity to
which, as we have seen, congress did not intend section 102 of NEPA to
apply.
We note finally that the plaintiffs argue that environmental impact state-
ments are necessary in order to inform the public as to the effect of the
steps taken in granting and denying permits (motion for summary judgment,
p. 7). The plaintiffs there assert that the provisions for public hearings on
permit applications (33 CFR 209.131 (k)) will not be useful unless environ-
mental impact statement are filed. This assertion is not well taken. In
the first place, as we have noted above, the regulations provide for public
notice to all permit applications. Such notices must include the name and
address oTThe applicant, the waterway involved (with a sketch of the loca-
tion of the proposed discharge), the character and frequency of the discharge
and "any other information (such as the views of the State on the permit
application) which may assist interested parties in evaluating the likely
impact of the proposed discharge or deposit, if any. " 33 CFR 209.131 (j)(l).
Therefore, there will be more complete public information on the discharge
proposed by each permit application. As to the hearings themselves, sec-
tion 209.131(k)(3) details the public information to be made available before
the hearings, including (in addition to the notice described above) "[a]s ap-
propriate, supplementary informational matter, fact sheets, or more de-
tailed news releases* * *." Section 209.131(k)(4) provides in part, "The
hearings will be conducted in a manner that permits open and full discussion
of any issues involved. "
[Cont.]
water quality and related water quality considerations be-
cause these matters are specifically addressed under sub-
sections 21 (b) and (c), the Federal Water Pollution Control
Act, as amended. However, such statements shall be re-
quired in connection with proposed discharges or deposits
which may have a significant environmental impact unrelated
to water quality. In cases in which a section 102(2)(C)
statement may be required the report of the District En-
gineer accompanying any case referred to higher authority
(see paragraphs (d)(10) and (i)(7) of this section) will contain
a separate section addressing the environmental impact of
the proposed discharge or deposit, if any, and if issuance
of a permit is recommended, a draft section 102(2 )(C) state-
ment should be attached. In all other cases in which a sec-
tion 1 02(2)(C) statement is required the District Engineer
shall draft, consult with, and obtain the comments of any
Federal, State, and local agency which has jurisdiction by
law or special expertise with respect to any environmental
impact involved. In cases where the preparation of a 102(2)
(C) statement is necessary, the District Engineer may re-
quire the applicant to furnish such information as he may
consider necessary to prepare the required statement.
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Of course, after a decision has been made, the entire administrative record
of any permit applications will be available for public inspection and judicial
review. There is no chance, therefore, that the public will not be sufficiently
informed at all phases of the permit process under the existing regulations.
§§§§§§§
TITLE: Permit Program Under Section 402
DATE: May 25, 1973
Mr. Thomas B. Arnold
Epstein, Salloway & Kaplan
Attorneys At Law
131 State Street
Boston, Massachusetts 02109
Dear Mr. Arnold:
This is in response to your letter of April 20, in which you asked four ques-
tions concerning the permit program under section 402 of the Federal Water
Pollution Control Act. Your questions, and our responses follow.
QUESTION;
Is a variance or postponement procedure set forth in the Water Pollution
Control Act Amendments of 1972? What section of the Act does EPA rely
upon as authority for section 124. 72(b) of its guidelines?
ANSWER;
Congress did not provide a specific variance procedure in the Federal Water
Pollution Control Act. However, section 402(b)(l)(C) requires the State to
have authority to issue permits which "can be terminated or modified for
cause including, but not limited to, the following:
(i) violation of any condition of the permit;
(ii) obtaining a permit by misrepresentation, or failure to disclose
fully all relevant facts;
(iii) change in any condition that requires either a temporary or
permanent reduction or elimination of the permitted discharge."
As the phrase, "including, but not limited to, " makes clear, this list is not
inclusive. Any number of other factors might be considered "cause" for the
modification of a permit. In our view, included among such factors would
be "an Act of God, strike, flood, materials shortage, or other event which
the permittee has little or no control," as set forth in §124.72(b) of our
guidelines.
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QUESTION:
Will a decision by a state Director to revise or modify a schedule of compli-
ance pursuant to section 124.72(b) and the proposed Massachusetts law defer
the entire schedule of compliance, so as to postpone the deadline for the
application of best practicable control technology beyond July 1, 1977?
ANSWER;
Section301(b)(l)(A) of the Federal Water Pollution Control Act requires the
achievement of effluent limitations by July 1, 1977, which require the appli-
cation of the best practicable control technology currently available. In
light of this clear statutory requirement, we do not believe that EPA could
approve any revision in a schedule of compliance which extended the date
of achievement of best practicable control technology beyond July 1, 1977.
QUESTION;
Does the Act or section 124.72(b) permit a state to revise or modify a
schedule of compliance without public notice or the opportunity for a public
hearing?
ANSWER:
Yes, in the limited circumstances set forth in §124. 72(B). Section 402(b){3)
of the Act requires that a State permit program include authority "to insure
that the public, and any other State the waters of which may be affected,
receive notice of each application for a permit and to provide an opportunity
for public hearing before a ruling on each such application." However,
section402(b)(l)(C), which sets forth requirements concerning termination or
modification of permits, does not require opportunity for a public hearing
before such termination or modification. In our view, then, nothing in the
Act would require public hearings in connection with modifications of per-
mits by State agencies.
In this regard, EPA's guidelines are more stringent than the statute.
§124.72 (b) of the Guidelines limits the situations under which a permit
may be modified without a public hearing to those where events largely beyond
the control of the permittee require a change in the compliance schedule.
The Environmental Protection Agency will carefully review each such modi-
fication to ensure that this authority is not misapplied.
§§§§§§§
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POLICY GUIDANCE
TITLE: Application of the Fish and Wildlife Coordination Act
to the Issuance of Permits
DATE: November 17, 1972
QUESTION:
Is the Administrator required by the Fish and Wildlife Coordination Act
(16 U.S.C. §661 et seq.) to consult with the Secretary of the Interior and
the Secretary of Commerce prior to issuing a permit under Section 402 of
the Federal Water Pollution Control Act, as amended?^
ANSWER:
No.
DISCUSSION;
The Fish and Wildlife Coordination Act (16 U.S.C. §661 et seq.) requires
that "whenever the waters of any stream or other body 5T water are pro-
posed or authorized to be impounded, diverted, the channel deepened, or
the stream or other body of water otherwise controlled or modified for any
purpose
whatever, including navigation and drainage, by any department or agency of
the United States, or by any public or private agency under Federal permit
or license, such department or agency shall first consult with the . . . De-
partment of the Interior. . .."I/ It is clear that the intent of this section
is to require such consultation only by federal agencies with responsibility
over water resource projects in which actual dredging, fillings, stream
channelization, or other direct modification of water course is carried out.
This is borne out by the language of 16 U.S.C. §662, quoted in part above,
which also requires consultation with "the head of the agency exercising ad-
ministration over the wildlife resources of the particular state wherein the
impoundment, diversion, or other control facility is to be constructed. .
. ." Such consultation is for the purpose of preventing loss and damage
to wildlife resources "in connection with such water-resource development."
I/ 16 U.S.C. §662(a).Certain of the responsibilities of the Secretary of
the Interior under this section are shared by the Secretary of Commerce
pursuant to Reorganization Plan No. 4 of 1970.
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The plain language of the statute applies only to "water-resource develop-
ment," and not to discharge permits under the Refuse Act of 1899, or under
§402 of the Federal Water Pollution Control Act. The only cases construing
these provisions of the Fish and Wildlife Coordination Act have involved actu-
al modification of water courses through dredging and filling or construction
of dams.^/
As you know, however, the Department of the Interior insisted upon a role
in the administration of the original Refuse Act Permit Program. As a re-
sult, Executive Order 11574, December 23, 1970, 35 FR 19627, requires
consultation with the Secretary of the Interior and the Secretary of Com-
merce "regarding effects on fish and wildlife which are not reflected in
water quality considerations, where the discharge for which a permit is
sought impounds, diverts, deepens the channel, or otherwise controls or
similarly modifies the stream or body of water into which the discharge
is made." The preamble to the Executive Order cites the Fish and Wildlife
Coordination Act as among the authorities for its issuance.
This requirement would apply in only a very few cases. It is difficult to
imagine a discharge which would meet the requirements set forth in the
Executive Order for consultation with Interior, and which would not require a
permit for dredging and filling under section 10 of the Rivers and Harbors
Act of 1899, thereby invoking the Fish and Wildlife Coordination Act by its
own terms. The .regulations under which the Corps of Engineers formerly
operated the permit program, however, went beyond the requirements of
the Executive Order. They require consultation with NOAA and Interior
with respect to all permits, whether or not meeting the requirements of the
Executive Order. 3/ Furthermore, regional representatives of NOAA or
Interior could by dBjectingblock issuance of any permit at the regional level,
and force the matter to headquarters for resolution. 4_l
Apparently believing that these coordination requirements were statutory
and not discretionary, the drafters of both S. 2770 and H.R. 11896 in-
cluded provisions limiting the consultation requirements of the Fish and Wild-
life coordination Act to certain regulations and guidelines.^/ However, an
amendment deleting that section was adopted on the floor of the House of
Representatives. 6/ Congressman Wright, in introducing the measure, de-
2/ E.g., tldall v. FPC, 87 S. Ct. 1712, 387 U.S. 428 (1967); Zabel v.
TabjJ7~4"30 F 2d 199 TSWCir. 1970); State of California v. FPC, 345 F. 2d
3TFT9th Cir. 1965); Environmental Defense Fund v. Corp's of Engineers.
325 F. Supp. 728 (E.D. Ark. 1970); Delaware v. Pennsylvania JNew York
Central Trans. Co., 323 F. Supp. 487 (D. Del.'1971).
I/ 33 CFR §209.131(i)(3))(1972).
I/ 33 CFR § 209.131 (i)(7).
_5/ §511(b), S. 2770, H.R. 11896 (1971).
6/ Cong. Rec., March 29, 1972 at H2735.
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scribed it as a "corrective amendment," which "would make the Fish and
Wildlife Coordination Act applicable in every respect that it applies by its
own terms to all sections of the bill. "7/ (Emphasis supplied).
Although this statement on the floor is consistent with the view that the
Fish and Wildlife Coordination Act would not apply to §402 permits,
Mr. Dingell, Mr. Reuss, and the other supporters of the so-called "clean-
water package" of amendments may not accept this view. Mr. Dingell rose
in support of the Wright amendment, stating that "this is one of the amend-
ments my colleagues and I were going to offer although in slightly different
form. "8/ However, the "clean water" amendments would have made the
Fish and Wildlife Coordination Act specifically applicable to discharge per7
mits as well as to dredge and fill permits. £/
As I see it, then, the decision whether or not to provide for consultation
with the Secretary of the Interior such as is provided in E.O. 11574, is a
policy decision. Such consultation is not required under the Fish and Wild-
life Coordination Act. On the other hand, a provision such as that in the
Executive Order could provide an effective palliative to the Department of
the Interior and concerned congressmen, without having any substantial effect
upon the administration of the permit program itself.
T7 Id. The Fish and Wildlife Coordination Act could apply by its own terms
to permits for disposal of dredged or fill material under §404, FWPCA.
8/ Id.
£/ See Cong. Rec. March 28, 1972, at H2646.
§§§§§§§
TITLE: Changes in Effluent Limitations or Water Quality Standards - Do
They Constitute a Change in Permitted Dis-charge
DATE: September 7, 1973
You have requested my opinion as to whether a change in either effluent limit-
ations or water quality standards subsequent to the issuance of a permit
would constitute a change warranting reduction or elimination of the permitted
discharge.
The answer is no.
Section 402(b)(l)(C) of the FWPCA, as amended, authorizes by indirection
the termination or modification of permits "for cause" including "(iii) change
in any condition that requires either a temporary or permanent reduction
or elimination of the permitted discharge."
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Section 402(k), on the other hand, provides, in pertinent part, that "Compli-
ance with a permit issued pursuant to this section shall be deemed compli-
ance, for purposes of sections 309 (federal enforcement) and 505 (citizen
suit), with sections 301, 302, 306, 307 and 403, except for any standard
imposed under section 307 for a toxic pollutant injurious to human health."
If section 402(b)(l)(C) were construed as broadly as your question suggests,
it would upset the security which the permit device is designed to offer the
discharger in return for a commitment to make expenditures on pollution
control and would thereby nullify the clear purpose of section 402(k).
Accordingly, it is my opinion that the reference in section 402(b)(l)(C) to
change in conditions does not extend to include a change in the applicable
effluent limitations or water quality standards.
TITLE: Increases in Production and NPDES Permits
DATE: September 25, 1973
You have asked the following questions regarding increases in production and
associated increases in the discharge of pollutants during the term of a
permit:
1. May a discharger receive large loadings I/ due to increased produc-
tion? ~
2. May increases in production be considered as new sources and therefore
subject to standards of performance for new sources promulgated under sec-
tion 306?
ANSWERS AND DISCUSSION
1. A permit, when issued, may provide for increases in the amount of
permissible discharge corresponding with projected increases in produc-
tion. 2j
Tf We assume that the term "loading refers to the quantity of any pollutant
which is specified in an NPDES permit as legally dischargeable.
2/ The NPDES Regulations (40 CFR Part 125) contemplate maximum limits
on discharge which will accommodate increases resulting from "facility ex-
pansions, production increases, or process modifications." (40 CFR Section
125. 22(a)(l)). So long as such increases are within the limits set out in the
permit, the discharges need only notify the Regional Administrator; a separ-
ate application is not required.
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There are two qualifications to the general rule as just set forth. First,
a permit may not allow increases in the discharge of any pollutant due to
production increases if applicable state water quality standards would there-
by be violated. 3 / Second, a permit issued for an existing facility may not
authorize in advance discharges which are expected to result from the con-
struction of a "new source" in physical proximity to the existing plant which
is the subject of the permit application.
The term "new source" is sufficiently broadly defined in section 306(a)(2)
of the Act to allow the Agency substantial power to consider much physical
expansion of existing plants as new sources. In view of the somewhat unclear
distinctions in the legislative history of this section between modifications
of existing facilities and construction of new ones, however, I believe it
may be wiser to avoid abstract formulations of precisely what kind and de-
gree of modification will constitute a "new source" and to defer the question
until the facts of a particular case call for an answer.
In short, a permit may provide for increases in production not attribut-
able to the construction of a new source so long as water quality stand-
ards are not violated. If it can be demonstrated that the application of
best practicable technology currently available will not be sufficient to in-
sure compliance with state water quality standards in the event of an in-
crease in discharge, then the discharge increase may be permitted on the
condition that the incremental discharge receive additional treatment in order
to reduce the concentration of pollutants below that resulting from best
practicable technology.
QUESTION:
May increases in production be considered as new sources and therefore
subject to standards of performance for new sources promulgated under
section 306?
ANSWER:
Increases in production are not per se new sources, for purposes of the
Act. At the least, there must be construction of a "building, structure,
facility or installation" from which pollution is or may be discharged, which
construction is commenced after the publication of proposed regulations pre-
scribing standards of performance for the applicable industrial category.
(Section 306(a)(2) and (3)). If the production increase and associated in-
crease in pollutants discharged is due to the construction of a new source,
then of course the new source standards apply. If it is not, they do not.
As was indicated in the answer to the foregoing question, the determina-
tion of what does and what does not constitute a new source must be made,
for the moment, on a case by case basis.
3/ Section 402(a)(2), FWPCA Amendments of 1972, 40 CFR Section 125.21
Ta) and (b).
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I should point out that the assumption contained in your memorandum that
new source standards will be very stringent is not necessarily correct. The
new source standards for many of the categories in which regulations are
now appearing in proposed form are considerably less stringent than the
effluent limitations proposed for best available control technology econom-
ically achievable (the 1983 level).
§§§§§§§
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STATE PERMIT PROGRAMS
TITLE: Permit Program
DATE: December 27, 1972
This memorandum will set forth several points of policy guidance to be
followed with respect to EPA efforts under the Permit Program during the
next several months.
Preparation and Issuance of Permits by States Having Interim Authorization
Each of the States which received interim authorization last week agreed to
work toward issuance of permits on the following schedule: (a) Dischargers
where necessary background work has been completed to proceed with de-
velopment of a proposed permit will be selected immediately and notice
for public hearing will be formally issued by mid-January; (b) public hear-
ings for such permits will be held by mid or latter February; and (c) permits
will be issued in such cases prior to March 18. This schedule must be
achieved to assure completion of permit issuance in an initial group of cases
in each State before expiration of the interim authorization on March 18.
The top priority of EPA permit staff should be to work with the States
which have received interim authorization to carry out all necessary work
with respect to this schedule.
Note that State agencies acting under the interim authorization are not tech-
nically subject to procedural and other requirements set forth in the EPA
guidelines which will apply after final approval of State programs. As a
condition to EPA concurrence on individual permits, however, States must
at least hold one public hearing (which may cover a number of permits)
at the start of its program and must give at least 30 days' public notice
in advance of such hearing. EPA will make a full review of each proposed
permit to assure that we are satisfied with its abatement, monitoring and
other requirements.
We anticipate that each State will process at least six proposed permits
and hopefully closer to two dozen proposed permits as the initial group. As
manpower allows, additional proposed permits should be undertaken. In
cases where public notice and permit issuance cannot be completed prior to
March 18, the State public notice and public hearing should be co-spon-
sored by EPA so that the permits can if necessary be issued by EPA after
expiration of the interim authorization.
Preparation and Issuance of Permits by EPA in Other States
Each Regional office should proceed toward issuance of permits by EPA in
States which have not received authority to issue permits under section 402.
This work should be conducted with complete consultation and maximum co-
operation with the appropriate State personnel. Dischargers for which per-
mits are proposed should be selected to the extent possible on the basis of
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joint agreement with the States concerning the priority and anticipated abate-
ment requirements for such dischargers. Public notice and public hearings
should where practicable be jointly sponsored by EPA and the States, and
EPA issuance of permits under section 402 should be matched by State issu-
ance of permits imposing comparable requirements.
Each Region should work toward issuance of public notice for hearings on its
initial group of permits not later than January 30. Please report to me by
January 20 on your plans for this part of the program.
Scale of Permit Program Activities
During the next 9 months the Permit Program will be in its initial start-up
phase and necessarily will be operated on a limited basis. Principal
emphasis should be placed on the development of correct procedures for
preparation of permits, conduct of public notice and public hearings and
related work. At the outset the number of permits issued will be less
significant than our effectiveness in laying a solid foundation for conducting
the program successfully on along-term basis. The permits actually issued
will have significance as precedents in other cases, and the abatement re-
quirements therefore should be developed with special care. It is particularly
important to develop the closest possible cooperative relationships with State
agencies during this initial period.
Our principal target should be to assure that permits for all significant
industrial and municipal dischargers are issued prior to December 31, 1974.
Accomplishment of this goal is necessary to assure appropriate time for
completion of abatement programs prior to the July 1977, statutory deadline.
You should begin discussions with each State to develop a strategy for achiev-
ing this objective, and the early part of the program should be designed to
fit into that strategy.
Processing and issuance of permits during the early phase will require
exhaustive work by all personnel in the Permit Program. Both the technical
and the procedural problems will demand intensive preparation. In order to
move ahead with acceptable speed, we will require establishment of deadlines
for each phase of the work and all-out efforts to meet those deadlines.
Selection of Permits to be Issued
General guidance is currently being developed at Headquarters on the cate-
gories of permits that may appropriately be issued pending promulgation of
effluent guidelines setting forth levels of best practicable control technology
currently available for particular industries. In the meantime you should
select dischargers where receiving water conditions will require more strin-
gent abatement than the best practicable control technology standard and
sufficient data is available to indicate the degree of abatement necessary to
be consistent with the achievement of water quality standards. You may also,
on a limited basis and with Headquarters' approval, select other dischargers
where the best practicable control technology standard is expected to govern
and our interim effluent guidance is sufficiently thorough and solid to give a
high degree of confidence that a permit can be written that will not be
materially inconsistent with effluent guidelines subsequently issued.
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Duration and Validity of Permits
All permits issued in the near future, whether by EPA or by States acting
under interim authorization, will have full force and effect as permits under
section 402. They may have a term of not more than 5 years. Where per-
mits are issued to reflect the best practicable control technology standard
prior to promulgation of effluent guidelines, such permits will remain in
effect without change notwithstanding the possibility that effluent guidelines
subsequently issued might be more stringent or less stringent in certain
respects. In order to assure that dischargers will move forward with the
abatement programs required under permits, firmness of requirements is
essential. In special cases, however, a permit may specifically provide that
one or more of its terms may be modified to reflect the requirements of the
subsequent effluent guidelines. For example, this approach might be taken
where an unusual type of treatment facility will be required and research
efforts are presently being carried out to determine the degree of effective-
ness that can be obtained through such an abatement system.
Review of State Laws and Programs
It is essential that EPA respond promptly and fully to any inquiries from
States concerning changes that may be necessary in existing State laws or
programs to meet the requirement under section 402. The Regional
Counsel in each office should work with State officials to review their laws
on the basis of the materials distributed by the Administrator in his let-
ter to Governors on December 8. The Regional Administrator should upon
request specify in writing any changes in the State laws or programs that
will be necessary as a prerequisite to EPA final approval of the State pro-
gram. It will be helpful all around for EPA to address as many of the
questions raised early and clearly. Any substantive issues raised by State
inquiries should be explored in consultation with Headquarters to assure a
uniform national approach.
§§§§§§§
TITLE: Division of Authority
DATE: January 24, 1973
Your memorandum of December 29, 1972, requests an opinion as to whether
a State permit program may qualify for approval under section 402(b) of
the FWPCA where more than one State agency has permitting authority.
Your memorandum states that in the State of Washington, the Thermal Site
Council grants permits for discharges from thermal electric generating
stations, although general authority to grant discharge permits is in the
Department of Ecology. Similarly, you state that in Idaho, the Department
of Water Administration has authority to permit discharges into wells, al-
though general permitting authority is in the Department of Environmental
Protection.
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There is nothing in the FWPCA or in the EPA Guidelines published December
22, 1972 (37 FR 28390), that requires all permitting authority to be vested
in one State agency in order for the State permit program to obtain federal
approval under section 402(b). The basic requirement of section 402(b)
is that "the laws of such State* * *provide adequate authority to carry out
the described program." Neither this language, nor any language in section
304(h)(2) or in the EPA Guidelines, indicates that the authority must be
vested in a single agency. The several references in the EPA Guidelines
to "any State or interstate agency participating in the NPDES" (e.g.,
§§124.21, 124.24, 124.31, 124.34, 124.35) were not intended to preclude
a division of permit issuance authority as described in your memorandum.
Accordingly, in my opinion the division of permit issuance authority de-
scribed in your memorandum among more than one State agency would not
prevent federal approval of the State permit program under section 402(b).
Your memorandum also asks whether, if more than one State agency may
have permitting authority, all the authority described in the EPA Guidelines
must be vested in each agency. In determining whether all the authority
described in the EPA state permit program guidelines must be vested in each
State agency authorized to issue permits, the key question is whether any
sharing of authority which is permitted will operate to detract from the
overall effectiveness of the State's permit program. This clearly will be a
case-by-case determination. I suggest that as a minimum the Attorney
General when writing his opinion as required under section 402(b) of the
FWPCA, identify those instances where the second agency does not have its
own statutory authority or procedure for carrying out an activity required
under the Act or the guidelines. In each of these instances the letter should
indicate how the second agency will coordinate with the primary permit issuing
agency to accomplish the task required (e. g., monitoring or enforcement).
In addition, the letter should state that no conflict of authorities exists
which would preclude the effective operation of the permit program for
those permits issued by the second agency (e. g., legislation requiring
specific matters to be taken into account with respect to power plant dis-
charges that may be at variance with effluent standards and limitations
under the FWPCA; requirements for board membership which violate the
conflict of interest clauses in section 304(h)(2)(D) of the FWPCA).
§§§§§§§
TITLE: May State Permit Programs Continue to be Operated Without an
Approved Program?
DATE: April 5, 1973
This is in response to your letter of March 15, 1973, regarding the National
Pollutant Discharge Elimination System under the Federal Water Pollution
Control Act Amendments of 1972. You have requested some clarification
on whether State permit programs may continue to be operated without an
approved program under Section 402(b) of the FWPCA.
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Section 402 of the FWPCA contemplates a cooperative State/Federal dis-
charge permit program. In cases where States do not apply for or receive
approval of State permit programs in conformance with the requirements of
the Act, the Environmental Protection Agency is authorized to issue NPDES
permits in those States. In such cases, States have an opportunity to certify
discharges under section401. On the other hand, where States apply for and
receive approval of State permit programs, EPA's responsibility is to re-
view permits and audit the performance of State permit programs, and may
object to the issuance of permits under certain circumstances set forth in
Sections 402(d) and (e) of the Act.
Our reading of the Act is that the system described above does not entirely
preempt the operation of a State permit program which is not approved
under section 402(b). Section 510 of the Act provides that nothing in the
FWPCA precludes or denies the right of any State to adopt or enforce any
requirement respecting abatement or control of pollution, except that a State
may not adopt or enforce any effluent limitation or other standard which is
less stringent than the effluent limitations and standards in effect under the
FWPCA. The clear meaning of this provision is that, until limitations and
standards under the FWPCA are in effect, State permits may continue to
be issued and, even after the promulgation of FWPCA standards, a State
permit program may impose requirements more stringent than the FWPCA
standards.
Aside from the question of whether a State can issue permits pursuant to a
program not approved under section 402, an equally important question is
whether a State should proceed with the issuance of such State permits.
Recognizing that such permits would not be issued under or enforceable
pursuant to the FWPCA, it seems to us that it is highly advisable to com-
bine the efforts of the State and Federal governments in the issuance of a
single permit for each point source discharger. If the State does not have
authority to issue ah NPDES permit, EPA would have little choice but to
proceed with the issuance of permits which may vary from the terms of
any previously issued State permit, or, at a minimum, duplicate require-
ments already set forth in a State permit. I think it is incumbent upon both
the State and Federal agencies to minimize the possibility for inconsistent
requirements or duplication of requirements. In addition, there may be
disadvantages in other respects to a State in not having an approved NPDES
permit program, including possible adverse effects in terms of State pro-
gram grants. Therefore, for the reasons stated above and others, a State
should strongly consider the relative practical advantages and disadvantages
for having an approved program-in addition to the much narrower question
of whether such a program is necessary in the legal sense.
While I think there is good and sufficient reason to strongly urge the State
of Louisiana to apply for approval of a State permit program meeting the
requirements of the FWPCA, at the same time there is good reason to not
break the momentum of on-going State efforts. To the extent that the State
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can issue permits under its on-going program prior to the application or
approval of an NPDES program, it should continue to do so, but should
attempt to impose requirements in conformance with the standards and dead-
lines set forth in the FWPCA. This would help reduce the possibiliy that
currently issued permits might not be sufficient for purposes of the NPDES
program when the State subsequently receives approval of its program.
§§§§§§§
TITLE: Regulations Which Must be Promulgated Prior to Submission
of Attorney General's Statement in Connection with Approval
of State NPDES Programs
DATE: July 23, 1973
Several regional offices have inquired which of a State's regulations must
be promulgated and in effect prior to the submission of the Attorney
General's statement required by §402(b) of the FWPCA. This memoran-
dum provides clarification of this issue.
§124. 3 of EPA's State Program Guidelines provides as follows:
All authority cited by the State Attorney General as authority ade-
quate to meet the requirements of §402(b) of the Act (a) shall be in
the form of lawfully promulgated State statutes and (b) shall be in
full force and effect at the time the Attorney General signs the
Attorney General's statement.
In other words, the statute requires that all of the authorities listed in
§402(b)must be in full force and effect before the Administrator may ap-
prove a state's program. It was to dispel doubt as to the required extent
of authorities under §402(b) that Appendix A, the form of Attorney General's
statement, was developed. Although Attorney General's statements are not
required to follow this format precisely, they must cover every authority
cited in Appendix A and must identify, for each authority listed in the
Attorney General's statement, the applicable State statutes or regulations.
It is our view that Appendix A embodies the minimum state authorities
necessary to support approval of a program - that is, the Administrator
could not legally approve a program where each of these authorities could
not be demonstrated to exist.
For this reason, it would not suffice for a State to submit an Attorney
General's statement based upon a broadly worded statute conferring discre-
tionary authority upon (for example) the Director of a State agency to adopt
regulations which would constitute an approvable program. In such cases,
regulations must be promulgated and in force at the time that the Attorney
General's statement is submitted, and the regulations must encompass the
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full range of authorities required by the Act and Appendix A. For example,
a state statute might authorize the director of the State water pollution
control agency to issue permits under "such regulations as he deems appro-
priate. " In such a case, regulations must be promulgated and in force
providing that the director shall apply effluent limitations and standards
under §§301, 302, 306, 307 and 403 of the Act.
The only exceptions to the requirements outlined herein are those authorities
required in paragraph 8 of the Attorney General's statement which are pure-
ly ministerial in nature -for example, authority to transmit documents to
and from the Environmental Protection Agency, or to provide public notice
of proposed permit issuance actions. It is expected that these purely minis-
terial acts will be accomplished pursuant to the permit program agreement
between the State and EPA, and the details of such procedures need not be
established by regulations prior to the submission of the Attorney General's
statement.
§§§§§§§
TITLE: State Permit Program Authorities -- Civil and Criminal Penalties
DATE: May 31, 1973
There has been a great deal of discussion -- and some degree of confusion--
over the past few months regarding EPA's guidelines for State civil and
criminal penalties under Section 402(b)(7) of the 1972 Amendments to the
FWPCA. As you know, the State Program Guidelines, published on
December 22, 1972, require that such penalties must "(1) be comparable
to similar maximum amounts recoverable by the Regional Administrator
under section 309 or (2) represent an actual and substantial economic de-
terrent to the actions for which they are assessed or levied." There have
been varying interpretations, however, of the meaning of "comparability"
and "actual and substantial economic deterrent."
The controlling Agency policy was set forth in Instructions and Comments
attached to "Appendix A to Instructions for Approval of State Permit
Programs," the State Attorney General's Statement distributed to the re-
gions on March 28, 1973. Point lib of the Instructions and Comments pro-
vides:
"The maximum civil penalties and criminal fines recover-
able under State law must be comparable to maximum a-
mounts provided in Section 309 of the FWPCA or must rep-
resent and actual and substantial economic deterrent. This
means, in applying either criterion, EPA expects that such
maximum penalties and fines be equal to or of the same
order of magnitude as the amounts provided in Section 309."
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Our policy is to require States to have authority to impose maximum penal-
ties and fines of $10,000 and $25,000, respectively, as provided in Sec-
tion 309. We believe that adoption of these statutory penalities is essential
in almost every State for an effective program. There may be a few States
in which lower penalties would constitute an actual and substantial economic
deterrent. Accordingly, we will consider requests for approval of a .State
program providing maximum penalties lower than those set forth in section
309, but in no case less than a maximum civil penalty of $5,000 a day,
and a maximum criminal penalty of $10,000 a day, in those few instances
where:
(1) There is only a small number of major dischargers within the
State; and
(2) Most of the industries discharging within the State have suffi-
ciently low earnings that the proposed lower fines would con-
stitute an effective deterrent; and
(3) The program is fully approvable in every other respect.
There are, in addition, apparently five States in which decisions regarding
maximum penalties have been taken in reliance upon representations by
EPA officials that maximum civil penalties as low as $5,000 a day, and
maximum criminal penalties as low as $10,000 a day, would be acceptable.
EPA has an obligation to minimize the burden which would be placed upon
these States by inflexible application of the policy set forth above. Accord-
ingly, we will consider approval of these few state permit programs where,
in reliance upon representations by EPA officials, the State has either en-
acted, or has taken substantially irrevocable decisions toward enacting,
legislation with lower penalties than those set forth in the statute. Where
such a program is approved, the State will be advised in the approval letter
that it will be expected to request its legislature, as soon as possible but
not later than the next legislative session, to establish maximum penalties
equal to those in the statute. In no case will a program be approved which
includes less than a maximum civil penalty of $5, 000 a day and a maximum
criminal penalty of $10, 000 a day.
According to our most recent information, 27 States have either enacted or
proposed legislation establishing maximum penalties and fines of $10,000
and $25,000, respectively. We must make it clear to these States that
we strongly support their efforts in this regard, and we must keep to a very
bare minimum the number of programs approved with lower penalties. Quite
apart from the potential dampening effect on State enforcement efforts, any
indication from EPA that we would be willing to accept lower penalties,
except in the strictly limited circumstances set forth herein, would amount
to a failure to keep faith with those States which have sought or are seeking
to obtain the statutory maximum penalties. For this reason also, it bears
emphasis that any State seeking approval of a program providing lower
penalties must carry the burden of demonstrating that it meets the criteria
set forth in this memorandum.
§§§§§§§
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TITLE: Federal vs. State Water Permits
DATE: June 4, 1973
We have received several inquiries concerning the degree of preemption
of NPDES permits issued by EPA over non-NPDES permits which have pre-
viously been issued by States or may be issued by States in the future. The
simple answer is that a preemption exists only where the State program is
in any way less stringent than the Federal program.
Section 501 of the Federal Water Pollution Control Act specifically reserves
to all States, political subdivisions thereof, or interstate agencies, the right
to adopt or enforce "any standard or limitation respecting discharges of
pollutants," or "any requirement respecting control or abatement of
pollution. ..." The only qualificaiton to this express reservation of States'
rights applies when an effluent limitation or other requirement, including an
NPDES permit, has been established under the FWPCA. In any such case,
a State is prohibited under §510 from adopting or enforcing any requirement
less stringent than the Federal requirement.
The FWPCA, in view of Section 510, clearly does not prohibit a State from
issuing in the future discharge permits more stringent than permits issued
by EPA under the NPDES. Moreover, the issuance by EPA of an NPDES
discharge permit does not invalidate a more stringent permit previously
issued by a State.
As a matter of policy, it is clear that States should attempt to receive ap-
proval of State NPDES permit programs in order to avoid the problems
presented by the operation of two permit systems within a State. This does
not, however, diminish a State's legal authority to issue more stringent non-
NPDES permits.
This key point should be emphasized to industries and other dischargers
receiving NPDES permits. Accordingly, each NPDES permit which is issued
by EPA should be accompanied by a statement notifying the discharger that
the NPDES permit which is being issued to him may well not create any
absolute right of discharge, even in accordance with its terms. A discharger
is not thereby relieved from responsibility from complying with any more
stringent requirements which a State may have adopted or choose to adopt.
The Federal Water Pollution Control Act is based upon the concept that the
primary responsibility for pollution control rests with the States, and we
must acknowledge the right of any State to establish even more stringent
controls on pollution than can be achieved by a national program.
§ § § § § § §
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TITLE: Ability of States to Enforce Federally Issued NPDES Permits
DATE: July 10, 1973 *
QUESTION;
Is a State authorized to enforce permits issued under the NPDES by EPA?
ANSWER;
The only means available under the FWPCA for a State to enforce the terms
and conditions of a federally issued NPDES permit would be to commence
a citizen suit under section 505. However, depending upon State constitu-
tional and other restraints, a State may arrange for such permits to be
enforceable under its own law, or it may issue duplicate permits under State
law which would then be enforceable in State courts.
DISCUSSION:
Only two means are available under the FWPCA for enforcement of NPDES
permits: direct enforcement by the Administrator under section 309, and
citizen suits under section 505. Section 309 is available only to the Adminis-
trator of the Environmental Protection Agency. No authority is conferred by
§309 upon the States. However, §505 authorizes any "citizen" to commence a
civil action on his own behalf against any person who is alleged to be in
violation of an effluent standard or limitation under the Act or an order
issued by the Administrator or a State with respect to such standard or
limitation. The term "citizen" is defined in §505(g). as "a person or persons
having an interest which is or may be adversely affected." "Person" is
defined in §502(5) to include any State. It is clear, moreover, that any
effluent standard or limitation included in an NPDES permit would be "an
effluent standard or limitation under this Act" within the meaning of §505(a)
(1)(A). Accordingly, citizen suits would be available to States for enforcement
purposes.
Other options are available to States under State law for the enforcement
of NPDES permits. If a State has a permit system, it can issue a permit to
a discharger containing the same terms and conditions as an NPDES permit.
Again, this procedure may prove cumbersome, in that State permit issuance
procedures would duplicate NPDES permit issuance procedures. A right
to a hearing and to administrative and judicial review might be available to
the discharger both under State and federal law. This inconvenience might
be reduced somewhat, however, if the State and EPA hold joint hearings
for issuance of their respective permits.
Finally, a State might choose to enact a statute incorporating the provisions
of the FWPCA by reference. A precedent in federal statutory law is the
Assimilative Crimes Act, 18U.S.C. Section 13, which incorporates State
criminal law for areas subject to exclusive federal legislative jurisdiction.
In this context, such a statute might provide that the violation of any term
or condition of a permit issued by the Environmental Protection Agency
under §402 of the FWPCA would be subject, under State law, depending upon
whether it comported with other State statutory and constitutional require-
ments concerning due process and administrative procedure.
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It should be emphasized that neither the model State NPDES statute developed
by the Council of State Governments nor the laws of California, at present
the only State to have received approval for its NPDES program, include
authority for the State to enforce federally issued permits. Such authority
is not required byEPA's State program guidelines, nor is it required by the
FWPCA. Moreover, it would be unwise to amend the guidelines to require
such authority at this point, since one program has been approved, several
others have been submitted, and many State legislatures are enacting statutes
not including such authority in reliance upon our guidelines and upon the
model State law.
We may wish to consider amending the State program guidelines to authorize,
but not require, a State to utilize abbreviated procedures when issuing a
State permit identical to a previously-issued Federal NPDES permit. Such a
procedure would allow States which have not yet enacted NPDES statutes to
establish procedures simplifying enforcement of NPDES permits issued by
EPA prior to program approval. At the same time, since the procedure
would be optional, there would be no effect on programs already approved.
Before any such move is concluded upon, however, we should seriously con-
sider its implications in the light of Buckeye Power v. EPA, when the Court
of Appeals for the Sixth Circuit observed, at note 2, that where the require-
ments of State implementation plans under the Clean Air Act would be enforce-
able either in State or Federal Courts, the first court to acquire jurisdiction
would have exclusive jurisdiction, and its judgments would be res judicata
with respect to any future litigation. By implication State courts could make
binding determination with respect to federally issued NPDES permits. Since
we will attempt to accord priority in permit issuance to major dischargers,
we might well look askance at a policy which could ultimately wrest from
the Federal courts the power to construe these crucial permits and their
conditions.
§§§§§§§
TITLE: Extent of Environmental Protection Agency Approval of State Issued
NPDES Permits
DATE: July 18, 1973
This is in response to your memorandum of May 31, in which you inquired
as to the extent of EPA's authority to object to the issuance of a permit
by a State after approval of the State's ,NPDES program under §402(b) of
the FWPCA. Your questions, and answers, follow.
QUESTION;
Suppose a State issued a permit for which we didn't object under permanent
authority and the permittee appealed the issuance to an independent Board
of Review with the power to modify the permit:
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(1) If the board exercised its power and modified the permit
without sending the permit back to the State issuing agency,
can the Environmental Protection Agency object to its issu-
ance?
(2) If the Board sent the permit back to the State agency
for issuance with the limits defined, can the Environmental
Protection Agency object to its issuance?
(3) The same as 1 and 2 above except that the Court of
Appeals takes the action rather than the Board.
ANSWER;
Under §402(d)(2), in any of the situations described above, the permit may
not be issued by the State if the Environmental Protection Agency objects
to its issuance as being outside the guidelines and requirements of the Act.
DISCUSSION;
Section 402(d)(2) of the FWPCA provides that "No permit shall issue. . . if
the Administrator within ninety days of the date of transmittal of the proposed
permit by the State objects in writing to the issuance of such permit as
being outside the guidelines and requirements of this Act." The clear intent
of this provision is to ensure that permits issued by the States comply with
the guidelines issued by EPA under §304 and other provisions, and with the
requirements of the Act. There would be no doubt that the Administrator's
objection would preclude issuance of a permit in any of the three situations
described in the question, were it not for the limitation of the Adminis-
trator's action to objection "within ninety days of the date of transmittal of
the proposed permit by the State. ..." This is language, it may be argued,
prohibits the Administrator from exercising his power to veto permit issu-
ance except in the case where a State, before formally issuing a permit,
transmits a proposed permit to the Administrator for review.
This argument, however, ignores the intent of the provisions. The apparent
purpose of the ninety-day limitation is to ensure that the Administrator takes
prompt action on permits submitted by States. To construe the term
"proposed permit" in the statue to prohibit veto by the Administrator of
permits altered by a review board or by a court, or by order of a board or
court, would frustrate the intent of §402(d)(2) to ensure that pemits comply
with "the guidelines and requirements of [the] Act."
The reference to "proposed permit" in §402(d)(2) merely indicates that the
drafters anticipated a procedure whereby a proposed permit would be trans-
mitted to the Administrator, the Administrator would review the permit and
decide whether or not to exercise his veto power, and the State would then
issue the permit. Indeed, in most cases, this is the procedure which will
be followed. There is no evidence, however, of any legislative intent that
the two words "proposed permit" be read as a limitation on the Adminis-
trator's authority. They may instead be construed to mean that no permit
is final until the Administrator has exercised his statutory review powers.
Under this reading of §402(d)(2), the permit must be said to be a "proposed
permit" at both stages in the procedure: before issuance, and, if modified
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by a board or court of review, after such modification. Under this reading
of the statute, a State could not render the review provisions of §402(d)(2)
inoperative by the device of a bifurcated review procedure whereby power
to modify a permit (in effect, real control over permit issuance), reposes
in a review board or a court.
ANSWER;
Any modification of an NPDES permit by a State constitutes a reissuance,
and is subject to review by the Regional Administrator under §402(d) of the
Act. However the'- Administrator may by regulation waive his review of var-
ious classes of permits or types of modificaitons.
DISCUSSION:
§124. 72 of the State program guidelines sets forth two procedures for mod-
ification, after issuance, of NPDES permits. Under §124. 72(b), a schedule
of compliance in a permit may be modified or revised where good and valid
cause (such as an Act of God, strike, flood, materials shortage, or other
event over which the permittee has little or no control) exists for the mod-
ification. Section 124.72(b) of the regulations specifies that all such mod-
ifications must be reviewed by the Regional Administrator.
By contrast §124. 72 (a) provides a procedure where permits maybe "modified,
suspended, or revoked" for "cause including, but not limited to [(1) violation
of any terms or conditions of the permit; (2) obtaining a permit by mis-
representation or failure to disclose fully all relevant facts; and (3) a change
in any codition that requires either a temporary or permanent reduction or
elimination of the permitted discharge. ]" This procedure is based directly
upon §402(b)(l)(C) of the Act. The guidelines do not specify that the Admin-
istrator would exercise review authority over such modifications. However,
the omission from the guidelines of the requirement for review by the
Regional Administrator is not dispositive. It is clear that any modifications,
including those contemplated by §124.72(a) , would amount to a reissuance
of the permit, requiring an opportunity for review by the Regional Adminis-
trator under §402(d) of the Act. Any other construction of the guidelines,
or of §402(b)(l)(C)of the Act, would defeat the purpose of §402(d) to preclude
the issuance of permits which are outside the guidelines and requirements
of the Act. If, for example, a State were to issue a permit, then to modify
the permit "for cause" after the time period for objection to the original
permit under §402(d) had passed, in a manner that made the permit violative
of the guidelines and requirements of the Act, no reasonable construction of
the Act would preclude the Administrator from reviewing the modifications
under §402(d).
Under certain curcumstances, such as various types of de_minimis modifica-
tions of issued permits, it may prove cumbersome in practice for the
Regional Administrator to review all modifications of issued permits. In
that event, when a State's NPDES program is approved, a waiver of our
review authority could be worked out for certain types of permit modifica-
tions.
§§§§§§§
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TITLE: Conflict of Interest
DATE: February 14, 1973
A great deal of discussion recently has centered around the application
of the conflict of interest provision in Section 304(h)(2)(D) and EPA's
Guidelines (Section 124.94) relating to State agency board membership.
The Act requires that a State requesting final approval of its permit pro-
gram submit a full and complete description of the program it proposes
to establish and administer under State law and a statement from the
attorney general that the laws of the State provide adequate authority to
carry out the described program. In addition, the Act requires that any
State permit progam at at all times be in accordance with the Guidelines
promulgated under section 304(h)(2), including the conflict of interest
provision.
At the time the State requests final approval of its program the State
must certify that the board membership is in compliance with the conflict
of interest provisions. It is incumbent upon the State to make specific
determinations regarding the qualification of individual board members.
Although the state's certification of compliance with Section 304(h)(2)(D)
is not conclusive upon EPA, it should be given considerable weight in
reviewing the State's program submission.
An enormous number of questions may arise regarding the application of
the conflict of interest provision to specific cases. These questions re-
quire both legal and factual determinations. EPA has a major responsi-
bility to provide guidance on the legal issues. With respect to factual
determinations, however the initial and principal responsibility should
be exercised by the States. For this reason, EPA regional officials
should avoid making formal determinations concerning application of the
conflict of interest provision to specific individuals, at least until after
the State has submitted its application for final approval of its permit
program.
In order to assist the Regions and the States further it is desirable that
additional guidance be given on a number of situations which occur fre-
quently in State board membership. The following is intended to provide
such guidance.
Government Employment
State employment. Many state facilities will require Section 402 discharge
permits. If the term "permit holders or applicants for a permit" included
State agencies or facilities, all State officials and employees would thenbe
disqualified from membership on State boards. Since the state is to ad-
minister the permit program, it would be impossible to apply an interpre-
tation of the statute requiring that a state employee be disqualified from
board membership where his only "conflict" is the receipt of income from
the state. Therefore, state department and agencies are not deemed to be
permit holders or applicants for a permit for purposes of this provision.
This position is set forth in section 124. 94(c) of the guidelines.
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Municipal employment. Most, if not all, municipalities will have sew-
age treatment works and other discharges subject to permitting under sec-
tion 402. The rationale above relating to state agencies or departments does
not apply to municipalities. Municipalities are subject to regulation under
the permit program in the same manner as other point source dischargers.
They, unlike states, however, have no responsibility under section 402 to
administer the program.
Federal employment. EPA's proposed regulations for the Federally operated
permit program (3b F.R. 1362-1370, 40 CFR Part 125) provide that ". . .
with respect to federal agencies and instrumentalities, ... the Administrator
will continue to process permit applications in accordance with these regu-
lations and will be the exclusive source of permits. " Although Federal facil-
ities must obtain discharge permits, an employee receiving a significant por-
tion of his income by virtue of Federal employment is not disqualified since
EPA, rather than any State board, will be issuing permits to Federal facil-
ities.
Corporate or Institutional Employment
In some instances, existing board members may receive income from in-
stitutions or corporations which operate facilities subject to permitting
under section 402. It may be argued that such persons should not be dis-
qualified if they have no connection with the management or operation of
discharging facilities, or budgetary decision-making that would affect such
management. The conflict provision makes no such distinction, however,
nor can such a distinction reasonably be implied. Thus, even though the
connection between the nature of employment of the individual and the
operation of a discharge facility may be tenuous or remote, it is clear
that the provision is tied to the receipt of income from the institution or
corporation, and not the nature of the person's position within the institution
or corporation.
It should also be noted that the statutory prohibition applies irrespective of
whether the employer is a non-profit organization such as a university or
research institution. The test is simply whether the employer is a "permit
holder or applicant for a permit. "
Professional employment.
In many cases, existing board members such as lawyers, engineers, or
stockbrokers may work for firms which do not have discharges subject to
section 402 (and therefore the firms themselves would not be "permit holders
or applicants"), but whose income is derived principally from clients with
discharges subject to section 402. If the person is an owner or partner of
the firm, such that he receives a direct share of the firm's profits, he then
receives income from clients who are or maybe permit holders or applicants.
In such a case, if a significant portion of the firm's income (i.e., 10% or
more under section 124.94(b) of EPA's Guidelines) is received from permit
holders or applicants, the owner or partner would be disqualified.
Disqualification of owners or partners of such firms would be required by
the conflict provision even though the individual's work for a client permit
holder or applicant is not directly related to pollution control problems a-
rising under the FWPCA. As noted in the preceding section, the provision
makes no distinctions concerning the nature of the tasks performed by the
individual.
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4n emPloyee of a law firm, consulting engineering firm, stock brokerage
firm, or other similar professional organization (which itself is not a permit
holder or applicant) receives a salary from the firm, and therefore does not
receive income from client permit holders or applicants by virtue of his
receipt of salary from such firm.
Special Categories of Income
Employment income within past 2 years. Section 304(h)(2)(D) requires dis-
qualification of board members who have received a significant portion (i. e.,
10% or more) of their income from permit holders or applicants within the
preceding two years.
Retirement income. Even though one is presently retired from employment by
a permit holder or applicant and is receiving retirement income rather than
an employee salary, the conflict provision would require disqualification if he
receives a significant portion of his income from such source. However, since
a retired person's future income status generally is less tied to his former
employer's interest than would be the case if he were currently employed by
a permit holder or applicant, the Guidelines provide that the term "a signi1-
ficant portion of this income" shall mean 50% of gross personal income for a
calendar year if the recipient is over 60 years of age and is receiving such
portion pursuant to retirement, pension, or similar arrangement. "
Income from diversified investments. The Guidelines provide in Section
124. 94(e) that "income is not received directly or indirectly from permit
holder or applicants for a permit" where it is derived from mutual-fund pay-
ments, or from other diversified investments over which the recipient does
not know the identity of the primary sources of income.
Pension plan income. Pension plans normally are set up as separate trusts,
or other distinct legal entities, not subject to direct control by the employer,
and provide periodic benefits to retired employees. Amounts received by
particular beneficiaries are fixed according to the plan and are unrelated
to the current fortunes of the employer. Therefore, where a board member
receives income pursuant to a pension plan under the control of an entity
other than his former employer, this income would not appear to produce
a conflict within the scope of section 304(h)(2)(D), even though the income
received may exceed the applicable retirement income percentage.
Stock dividends. Even though stock dividends ordinarily could not be affected
by a company adversely to the interest of a board member entitled to receive
dividends, the amount of such dividends would be directly tied to the fortunes
of that business and/or related businesses. If the amount of such dividends,
either separately or together with other income, exceeds the applicable per-
centage the recipient would be disqualified from serving on the board. There-
fore, stock dividends are specifically included within the term "income" under
section 124. 94(d) of the guidelines.
Permit holders or applicants other than under the FWPCA.
There is no indication in Section 304(h)(2)(D) that the conflict of interest
provision is intended to be one broadly aimed at excluding conflicts with
respect to permits not issued under the Federal Water Pollution Control
Act. Therefore, if a board member receives or has received income from
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a company or other entity which is subject to permitting tinder State or
Federal legislation other than the FWPCA (e.g., air or solid waste permit
requirements), such income would not require disqualification under section
304(h)(2(D).
Directors, Executive Secretaries or other employees of a State Board
The guidelines provide that the term "board or body" includes any individual
including the Director, who has or shares authority to approve permit ap-
plications or portions thereof either in the first instance or on appeal.
Therefore, any Director or other employee who has authority, in full or
in part, to approve permit application and who either currently receives
or has during the previous 2 years received 10% or more of his gross-per-
sonal income from a permit holder or applicant is disqualified from serving
in the position indicated above.
Board relationships which may mitigate the consequences of a conflict with
Section 3
Assuming that one or more board members fall within the conflict of in-
terest provision, various proposals have been suggested to make it possible
for the State to retain these board members and continue to operate its
permit program under other organizational arrangements.
Removal of permit issuing decision from the Board. A State may wish to
place the responsibility and power to make final determinations on permit
applications on an employee of the board, such as a Director or Executive
Secretary. For his proposed arrangement to comply with section 304
(h)(2)(D), and EPA's Guidelines (Section 124.94(a)), the Director or other
employee would have to have complete authority to rule on permit applica-
tions, and he himself must be free of a conflict of interest. In order to
maintain the insulation of the board from the decision on individual permits,
a right of appeal to the full board would not be permissible. In addition
to the authority to issue permits, the employee also would have to have
authority to perform other acts necessary to the administration of the permit
program as required under section 402(b) and EPA's Guidelines. Otherwise,
the mere insulation of the issuance function probably would not be sufficient
to remove the board from the thrust of section 304(h)(2)(D) to eliminate
conflicts which would tend to inhibit aggressive administration of state per-
mit programs. Finally, the Director must be able to issue permits, and
otherwise independently administer the permit program, without being sub-
ject to control by a State board which does not meet the requirements of
section 304(h)(2)(D).
Non-participation by a board member on certain permit applications. It has
been suggested that the conflict of interest provision might be avoided by
requiring a member with a conflict to abstain from ruling upon permit ap-
plications in which he has or may have an interest which causes a conflict.
This is not a viable alternative, in view of the flat proscription against board
membership where the particular member has received a significant portion
of his income from permit holders or applicants. Since the provision applies
to permit holders, as well as applicants, there would be a continuing conflict.
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Application of Section 304(h)(2)(D) immediately or through attrition. It may
T>e suggested that the requirements of section 304 (h)(2)(D) can be applied
as and when vacancies on State boards occur, rather than immediately.
Section 304(h)(2)(D) is part of a series of requirements which must be met
by States prior to approval of their permit programs. Therefore, deferral
of compliance with the provision during a transitional period cannot be per-
mitted under the statute.
§§§§§§§
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EFFLUENT GUIDELINES
TITLE: Authority for EPA to Issue Discharge Permits Prior to
Publication of Effluent Guidelines Under §304
DATE: December 4, 1972
QUESTION:
Dose the Administrator of the Environmental Protection Agency have the
authority to issue permits under §402 of the Federal Water Pollution Control
Act before the issuance of guidelines for effluent limitations under §304(b)?
ANSWER;
Yes.
DISCUSSION;
§402(a)(l) of the Federal Water Pollution Control Act authorizes the Ad-
ministrator to issue permits for the discharge of pollutants "upon condition
that such discharge will meet either all applicable requirements under
sections 301, 302, 306, 307, 308 and 403 of this Act, or prior to the
taking of necessary implementing actions relating to all such requirements,
such conditions as the Administrator determines are necessary to carry out
the provisions of this Act." (Emphasis supplied). The Administrator is
required to prescribe conditions for permits to assure compliance with these
requirements, (§402(a)(2)).
The "necessary implementing actions" refered to in §402(a)(l) would include
the publication of guidelines under §304, even though that section is not
specifically designated. One of the designated sections is §301, which in-
cludes a requirement for effluent limitations applying best practicable control
technology "as defined by the Administrator pursuant to §304 of this Act. . .. "
If §402(a)(l) and §402(a)(2) are read together, their plain meaning is that
the Administrator is to issue permits in the period prior to the issuance
of guidelines for the determination of "best practicable control technology
currently available" under §304, but he is also to apply conditions to such
permits in order to "carry out the provisions of this Act."
The argument may be advanced that Congress expected that effluent limita-
tion guidelines would be published immediate upon enactment of the bill, and
that there would be no interim period. However, in §515, Congress
specifically required submission of a notice of intent to propose guidelines
to the "Effluent Standards Water Quality Information Advisory Committee"
no later than 180 days prior to the date on which they are required to be
published as proposed regulations. The committee is required to submit
scientific and technical information to the Administrator within 120 days of
receiving the notice of intent. This section clearly contemplates that the
guidelines will not be published until after the Administrator has received
the information from the Committee, an event which would not be expected
to occur until at least five or six months after enactment.
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The legislative history is also barren of any support for the view that the
Administrator may not issue permits until after publication of guidelines
under §304. There is, however, clear support for the contrary view. The
House Committee, for example stated:
"The committee further recognizes that the requirements
under sections 301, 302, 306, 307, 308, 316 and 403
will not all be promulgated immediately upon enactment of
this bill. Nevertheless, it would be unreasonable to delay
issuing of permits until all the implementing steps are
necessary. Therefore, subsection (a)(2) provides that
prior to the taking of the necessary implementing actions
relating to all such requirements, the Administrator may
issue permits during this interim period with such con-
ditions as he determines are necessary to carry out the
provisions of this Act. Thus, the new permit program
may be initiated without undue delay upon enactment of
this Act. " H. Kept. No. 92-911 at 126 (1972).
That the Administrator may issue permits immediately following enactment
was emphasized by Senator Muskie in an anlaysis submitted for the record
on the day the conference bill was passed by the Senate. Senator Muskie
stated that "the Administrator may immediately act on pending permit app-
lications. " Cong. Rec., Oct. 4, 1972, at S. 6875.
In short there is no basis in either the statute or the legislative history
for any conclusion other than that the Administrator may begin immediately
to issue permits under §402 of the Federal Water Pollution Control Act,
before the promulgation of guidelines under §304.
§§§§§§§
TITLE: Revision of Permits Upon Later Issuance of Guidelines for Effluent
Limitations Under §304
DATE: December 11, 1972
QUESTION;
Can permits issued pursuant to section 402 by the Environmental Protection
Agency be revised upon later issuance of guidelines for effluent limitations
under section 304?
ANSWER;
Permits may be issued subject to the condition that they will be reopened
and the terms revised when effluent limitations are issued. Alternatively,
permits may be issued for short periods of time --one year or two years--to
allow for revisions subsequent to promulgation of effluent limitation guide-
lines. However, unless either of these steps is taken, permits would not be
subject to revision upon later issuance of guidelines under section 304.
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DISCUSSION;
Section 402(b)(l)(C) of the Federal Water Pollution Control Act requires
State program to include authority to issue permits which "can be terminated
or modified for cause including but not limited to the following:
(i) violation of any condition of the permit:
(ii) obtaining a permit by misrepresentation, or failure to dis-
close fully relevant facts:
(iii) Change in any condition that requires either a temporary
or permanent reduction or elimination of the permitted dis-
charge. ..."
Whether or not permits may be revised upon subsequent promulgation of
effluent guidelines depends upon whether such action could be called termi-
nation or modification "for cause. " The legislative history is silent with
respect to what types' of actors would be sufficient to provide the "cause"
required by the statute, and whether the issuance of effluent guidelines would
constitute a changed condition requiring reduction of the permitted discharge.
However, the intent of Congress in this regard appears to be expressed by
section 402(k), which provides that "compliance with a permit issued pur-
suant to this section shall be deemed compliance. . .with sections 301, 302,
306, 307 and 403, except any standard imposed under section 307 for a toxic
pollutant injurious to human health. " This section is intended to insulate a
discharger in possession of a validly issued permit from prosecution for
violations of subsequently issued requirements, except for discharge of toxic
pollutants injurious to human health. As a practical matter, it would in fact
be difficult to bring an enforcement action based on subsequently promulgated
effluent guidelines, because it is doubtful that such guidelines will be suffi-
ciently precise to be applied automatically to a given discharge. Discretion
must be exercised in applying the guidelines to individual dischargers.
Effluent standards under section 307(a) may be distinguished from effluent
guidelines in that they apparently are intended to be automatically applicable.
This distinction is recognized in section 402(k).
If it is the intent of the program to revise permits as effluent guidelines
are promulgated, this may be legally done either by inserting conditions in all
permits that they will be subject to revision upon the promulgation of effluent
guidelines (the Administrator has board discretion under section 402(a)(l) to
establish such conditions as he determines "are necessary to carry out the
provisions of this Act") or by limiting the duration of permits to one or
two years, thus providing for early revision.
§§§§§§§
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TITLE: Effluent Limitations to be Applied to Industrial Dischargers Now
Applying Better Treatment than Effluent Guidelines Require
DATE: August 8, 1973
QUESTION;
What effluent limitations must be imposed upon a discharger whose effluent
quality exceeds that which would be required by effluent guidelines now under
development?
ANSWER:
In general, effluent limitations dictated by effluent guidelines must be applied
unless a more stringent limitation is required to meet any requirements of
State or Federal water quality standards, or other Federal or State laws or
regulations. Where water quality standards include a "non-degradation"
requirement, that requirement must be applied to a discharger, and may
require the discharger to maintain an existing high-quality effluent. However,
the application of the "non-degradation" requirement would depend on the
circumstances; we cannot say that it would always operate to require main-
tenance of an existing high-quality effluent.
DISCUSSION;
As you know, industrial point source dischargers must, under §301(b)(l)(C),
achieve by July 1, 1977, any more stringent effluent limitations than those
required by application of the best practicable control technology currently
available, which are "necessary to meet water quality standards, treatment
standards, or schedules of compliance, established pursuant to any State law
or regulations. . . .or any other Federal law or regulation, or required to
implement any applicable water quality standard established pursuant to this
Act." In this connection, the "non-degradation" policy announced by Secretary
of the Interior Udall prior to the establishment of EPA has been incorporated
by the States into water quality standards. Under §303 of the Act, standards
established by States prior to the enactment of The FWPCA Amendments
of 1972, and not disapproved by the Administrator, remain in effect and must
be applied under §301(b)(l)(C).
"Non-degradation" requirements generally apply to waters which are of
better quality than required by water quality standards. Moreover, each
includes an "escape clause" allowing some degradation where justified on
the basis of social and economic necessity. Beyond these two points, how-
ever, we cannot state categorically how "non-degradation" requirements of
State standards should be applied. First, each state enacted or otherwise
promulgated its own "non-degradation" requirement. The language in which
the requirement was cast varied from State to State. Many States limited the
"non-degradation" requirement to new sources.J7 Moreover, each State's
IT In the only case construing a non-degradation requirement, the State
court held, on the basis of the statement of purpose in the State statute,
that the "non-degradation" requirement applied only to new sources. Re-
serve Mining v. Minnesota, 2 FRC 1135, 1140 (Minn. Dist. Ct. 1970).
Yet the classical statement of the Federal policy would also apply to issuance
of a permit to an existing source.
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requirement must be considered in the context of State law as a whole;
similar language may be construed differently in different States. Finally,
most States reserved to themselves the right to determine whether or not
lowering existing high-quality waters would be justified on the basis of social
and economic necessity, committing themselves only to advise the Federal
government of their determination. Accordingly, whenever a permit is is-
sued to a discharger into waters of better quality than that required by stand-
ards, an assessment must be made of the requirements of State law in that
instance.
It would appear that in most cases the States would be best situated to make
this determination, particularly in view of their retention of final authority
under state "non-degradation" policies. The vehicle for this determination
is provided in section 401, requiring State certification of compliance with
State water quality requirements. While the Administrator or the State,
in issuing permits, must apply all State requirements, I believe that we
would be entitled to treat a certification, with conditions, as conclusive re-
garding the requirement of State "non-degradation" laws.
§§§§§§§
TITLE: Must Effluent Guidelines Establish a Range
DATE: August 8, 1973
QUESTION:
Must regulations promulgated under section 304(b)(l) of the FWPCA estab-
lish a range of effluent limitations which would allow variations in the terms
of individual permits based upon the factors listed in section 304(b)(l)(B)?
ANSWER:
Although a range of effluent limitations may be established under section
304(b)(l) such a range is not a mandatory requirement.
DISCUSSION:
The Department of commerce has taken the position (as stated in Mr. Karl
E. Bakke's letter to the Office of Management and Budget dated May 15,
1973) that:
"... the best practicable control technology currently
available for a given industrial category must be estab-
lished as a range of numbers to allow consideration of
the factors [listed in section 304(b)(l)(B)] in the applica-
tion of the effluent limitations to individual point sources."
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Section 304(b)(l)(B) provides that the Administrator shall:
"(B) specify factors to be taken into account in deter-
mining the control measure and practices to be applic-
able to point sources (other than publicly owned treat-
ment works) within such categories or classes [of point
sources]. Factors relating to the assessment of best
practicable control technology currently available to
comply with subsection (b)(l) of section 301 of the Act
shall include consideration of the total cost of application
of technology in relation to the effluent reduction bene-
fits to be achieved from such application, and shall also
take into account the age of equipment and facilities in-
volved, the process employed, the engineering aspects
of the application of various types of control techniques,
process changes, non-water quality environmental impact
(including energy requirements), and such other factors
as the Administrator deems appropriate."
Neither this language, nor the language from section 304(b)(l)(A) quoted by
Mr. Bakke on page 1 of his letter, appears to establish a requirement for a
range of effluent limitations for each category of point sources. The lan-
guage in section 304 (b)(l)(A) requiring that regulations identify "the degree
of effluent reduction attainable. . . for classes and categories of point
sources" is susceptible to a reading that a range may or may not be stated.
Indeed, since the language uses the singular (i. e., the degree of effluent
reduction), it may imply that a single number is to be stated for a class
or category of sources.
Similarly, the language of section 304(b)(l)(B) does not appear conclusive
with respect to just when and how the listed factors are to be taken into
account. It may be noted, however, that if the intention had been to require
application of these factors both when establishing regulations identifying
the "best practicable control technology currently available" under section
304 and when writing permits under section 402, Congress could have easily
expressed this intention in either section of the Act. There is no indication
in either of these sections that Congress did so intend. Notably, when list-
ing the conditions to be applied in all permits issued under section 402(a)(l),
section 304(b) is not listed, though several other sections are specifically
identified. Also, there is evidence in both the bill as passed, and earlier
predecessors in the House and Senate, that any requirements for a permit-
by-permit analysis will be expressly stated (cf., §301(c) of the Act as pass-
ed; §301(b)(T)(A) of S. 2770 and H.R. 11896; and §301(b)(3) of the H.R.
11896). Finally, several of the factors listed in section 304(b)(l)(B) simply
seem to make more sense if considered on an industry-wide basis rather
than on an individual point source basis (e. g., total cost of application
of technology in relation to the effluent reduction benefits to be achieved,
non-water quality environmental impact (including energy requirements)).
On the other hand, the language of section 304(b) does not appear to specifi-
cally preclude establishment of a range of effluent limitations in section 304
(b) regulations or, within such a range, application of the factors listed in
section 304(b)(l)(B) in individual permits. There is some legislative history
calling this into question however:
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The Conferees intend that the factors described in section 304(b)
be considered only within classes or categories of point sources and
that such factors not be considered at the time of the application of
an effluent limitation to an individual point source within such a cate-
gory or class. (Detailed Statement on Conference bill inserted by
Senator Muskie, Cong. Rec. S 16784, October 4, 1972; Legislative
History of the Federal Water Pollution Control Act Amendments of
1972, Senate Comm. on Public Works, 93rd Cong., 1st Sess. at 172
(Comm. Print 1973)("Leg. Hist.")).
In addition, the Conference Report States:
"Except as provided in section 301(c) of this Act, the
intent of the Conference is that effluent limitations applic-
able to individual point sources within a given category
or class be as uniform as possible. The Administrator
is expected to be precise in his guidelines under sub-
section (b) of this section, so as to assure that similar
point sources with similar characteristics, regardless of
their location or the nature of the water into which the
discharge is made, will meet similar effluent limitations."
(S. Rep. No. 92-1236 at 126; Leg. Hist. 309). (Further indications that
the section 304(b)(l)(B) factors are to be taken into account at the regulation
writing rather than permit issuing stage are contained in the legislative
history as follows: Leg. Hist. 169, 170, 237-38, 263, 378-379, 794-795
and 1391.)
Mr. Bakka relies upon the following language contained in the Senate Report:
"It is the Committee's intention that pursuant to sub-
section 301(b)(l)(A), and Section 304(b) the Administrator
will interpret the term "best practicable" when applied
to various categories of industries as a basis for specify-
ing clear and precise effluent limitations to be implement-
ed by January 1, 1976. In defining best practicable for
any given industrial category, the Committee expects the
Administrator to take a number of factors into account.
These factors should include the age of the plants, their
size and the unit processes involved and the cost of apply-
ing such controls. In effect, for any industrial category,
the Committee expects the Administrator to define a range
of discharge levels, above a certain base level applicable
to all plants within the category. In applying effluent limi-
tations to any individual plant, the factors cited above
should be applied to that specific plant. In no case, how-
ever, should any plant be allowed to discharge more pol-
lutants per unit of production than is defined by that base
level."
(S. Rep. 92-411, at p. 50; Leg. Hist at 1468).
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The methodology of the Effluent Guidelines Division squares with this lan-
guage. For example, a range of 23 effluent limitations will be applied with-
in the broad category of iron and steel manufacturing for the 23 subcate-
gories which are planned. Those subcategories are based upon the section
304(b)(l) factors referred to in the Senate Report.
To resolve any remaining ambiguity in the statute or the legislative history
the best course would appear to examine the overall purpose of the section
304(b)(l) factors. The Congressional mandate to consider these factors
clearly facilitates the stated intention of Congress to apply uniform stand-
ards on a national basis. This can only be done fairly if differences among
sources within a category are taken into account in establishing effluent limi-
tation numbers. The primary approach taken by the Effluent Guidelines
Division has been to divide the broad industrial categories (such as those
listed under section 306 of the Act for new sources) into many subcategories
based upon the section 304(b) factors. In most instances this will sufficiently
take account of differences among types of plants within a broad category
to enable a fair uniform national guideline for plants within the subcategory.
In some instances there may be a need for still further variations within
the subcategory to take account of identified differences within that category.
For example, a recent proposal, which as I understand it is under consid-
eration in draft proposal regulations for the beet sugar subcategory, con-
tains the provision that in the event that adequate land is not available --
as specified by a formula—then the effluent limitation would be 2.2 kg/k
of raw sugar refined rather than "no discharge" of process waste water pollu-
tants.
The more the looseness in the effluent limitation guideline at the permit
writing stage, of course, the more the national uniformity requirement is
frustrated. In addtion, to the extent that the standards are open ended,
protracted negotiations may greatly hinder the permit program. Ambi-
guities in the required standards from permit to permit will also create
considerable problems of review of permit issuance actions by states where
this review is from the point of an interested citizen, EPA exercising its
authority under section 402(d), or judicial review. The same problems would
be posed to a State, citizen or Court reviewing the propriety of an EPA
issued permit. These considerations argue in favor of as precise a national
standard as possible. This should be facilitated by the subcategorization
approach which allows application of the factors listed in section 304(b)
to provide for fair effluent limitations which do take account of differences
within the industry.
In any event, the statute requires essentially a common sense approach which
should result in regulations which are specific and uniform and yet also fair
in their application to differing types of plants. This may require subcate-
gorization in some cases and application of a range in others. However,
there is simply no flat requirement in the statute that the section 304(b)
factors be applied only at the regulation writing stage or always at the per-
mit issuance stage; nor is there an across-the-board mandate for effluent
limitations to be stated in a range in all cases.
§§§§§§§
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TITLE: Section 316(b)
DATE: January 17, 1973
You have asked for my opinion on the question of whether section 316(b)
of the Federal Water Pollution Control Act, as amended, is effective im-
mediately, or is effective only after effluent standards applicable to thermal
discharges have been promulgated pursuant to section 301 and 306.
Section 316(b) provides as follows: f
t
11 (b) Any standard established pursuant to section 301
or section 306 of this Act and applicable to a point source
shall require that the location, design, construction, and
capacity of cooling water intake structures reflect the
best technology available for minimizing adverse environ-'
mental impact."
By its terms, section 316(b) is applicable to any "standard established
pursuant to section 301 or section 306 of this Act and applicable to a point
source. " However, if any permit is issued to a thermal discharge prior
to promulgation of any such standard, EPA (or the State, if it has permit
issuance authority) must consider the language of section 402(a)(l), which
provides that permits issued before promulgation of effluent standards shall
contain "such conditions as the Administrator determines are necessary
to carry out the provisions of this Act." In my opinion, this language would
authorize EPA or the State, in any permit issued before promulgation of
thermal effluent standards, to impose conditions requiring cooling water
intake structures to reflect the best technology available for minimizing ad-
verse environmental impact.
§§§§§§§
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SCOPE OF PERMITTING AUTHORITY
TITLE: FWPCA, Section 306(d) - Ten Year Grace Period
DATE: September 5, 1973
QUESTION:
You have requested my opinion as to whether a point source whose con-
struction began after October 1972, and which, though not required to do
so by the FWPCA, nevertheless meets standards of performance published
under section 306(b)(l)(B) entitled to the grace period provided in section
306(d). I/
The answer is yes.
In order to qualify for the grace period, a point source must be constructed
so as to meet all applicable " standards of performance. "2/ The Administrator
is required by section 306(b)(l)(B) to publish regulations establishing stan-
dards of performance for new sources within those categories included in
the list published under section 306(b)(l)(A). New sources (i.e., those whose
construction commences after publication of proposed regulations prescribing
a standard of performance applicable to that source) are required to comply
with these standards of performance and, assuming that they do so, are
thus entitled to the grace period provided by section 306(d).
The use of the term "point source" and the reference to the date of enactment
of the 1972 Amendments in section 306(d) suggests a Congressional intent
to extend the grace period to sources beyond those which constitute "new
sources". In my opinion, a point source is entitled to the benefit of section
306(d) if:
£/ Section 306(d) provides as follows:
"(d) Notwithstanding any other provision of this Act, any point source the con-
struction of which is commenced after the date of enactment of the Federal
Water Pollution Control Act Amendments of 1972 and which is so constructed
as to meet all applicable standards of performance shall not be subject to
anymore stringent standard of performance during a ten-year period be-
ginning on the date of completion of such construction or during the period
of depreciation or amortization of such facilitiy for the purposes of section
167 or 169 (or both) of the Internal Revenue Code of 1954, whichever period
ends first."
2/ Standards of performance are defined in section 306(a) as "a standard
Tor the control of the discharge of pollutants which reflects the greatest de-
gree of effluent reduction which the Administrator determines to be achiev-
able through the application of the best available demonstrated control tech-
nology, processes, operating methods, or other alternatives, including,
where practicable, a standard permitting no discharge of pollutants."
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(1) its construction was commenced after October 18,
1972, and
(2) it is within a category of point sources for which
standards of performance have been published pursuant to
section 306(b)(l)(B) and would thus have constituted a "new
source" had its constuction begun after the fate of publication
of the standards, and
(3) it is so constructed as to meet the applicable stan-
dard of performance.
§§§§§§§
TITLE: Applicability of Permit Program to Storm Sewers
DATE: January 23, 1973
QUESTION;
Mr. Auerbach has asked me to give you an opinion on two questions:
1. Are storm sewers covered by the FWPCA?
2. If so, does the Administrator have discretion to exclude them from the
permit program under section 402?
ANSWER
Storm sewers are "point sources" and as such are subject to the regulatory
provision of the FWPCA, including the permit program. However, the Act
may be read to confer on the Administrator some discretion to exclude cate-
gories of point sources from the federal permit program, and to authorize
such exclusion from approved State permit programs, provided that there
is a reasonable basis for the exclusion. The exclusion would have to be done
by a change in the proposed federal permit program regulations, with a cor-
responding amendment to the final regulations governing State permit pro-
grams.
DISCUSSION
1. Section 301 of the FWPCA provides that "[ejxcept as in compliance with
this section and sections * * * 402 * * * of this Act, the discharge of any
pollutant by any person shall be unlawful." (Emphasis added.) Section 402
provides that ''the Administrator may * * * issue a permit for the discharge
of any pollutant* * *." (Emphasis added.) The term "discharge oTa pollutant"
is defined as including "any addition of any pollutant to navigable waters from
any point source." (section 502(12)). The definition of point source is
clearly broad enough to cover storm sewers (section 502(14)):
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The term "point source" means any discernible, confined
and discrete conveyance, including but not limited to any
pipe, ditch, channel, tunnel, conduit* * *from which pol-
lutants are or may be discharged.
Accordingly, both section 301 (which requires "best practicable" treatment
by 1977) and section 402 (which establishes the permit program) apply to
storm sewers.
DISCUSSION:
2. Section 402 does not explicity require the Administrator to issue permits
to all categories of point sources; instead, it provies that the Administrator
"may" issue permits for discharges from point sources. Moreover, section
301 does not provide that all point source discharges without a permit are
unlawful; instead, it provides that "except as in compliance with" section 402,
point source discharges are unlawful. These sections can be read together
to allow the Administrator discretion to exclude categories of point sources
from the permit program, and to provide that where such discretion has
been exercised, a discharger need not obtain a permit to escape the pro-
hibition of section 301.
This reading of the Act has been adopted in the proposed regulations govern-
ing the federal permit program, published January 11, 1973. Section 125. ll(a)
of these regulations provides: ' All discharges of pollutants* * *from all point
sources* * *are unlawful and subject to the penalties provided by the Act, unless
the discharger has a permit or is specifically relieved by law or regulation of
the obligation of having a permit. (Emphasis added.) Presently, there
is nothing in the proposed federal permit program regulations or any other
regulation to exempt storm sewers from the obligation of obtaining a permit.
Accordingly, if EPA decides that such an exemption is desirable as a matter
of policy, the proposed federal permit program regulations will have to be
appropriately amended. It would also be necessary to change the final guide-
lines for State permit programs published December 22, 1972, which presently
provide that the State must, with exception, prohibit all unpermitted point
source discharges (section 124.10).
I would like to emphasize the necessity, if we do exclude storm sewers from
the permit program by regulation, publishing in the Federal Register a full
and persuasive explanation of why this step is being taken. There are two
reasons for such an explanation. First, the reading of the Act which allows
the Administrator discretion to exclude categories of point sources from
the permit program may be challenged; and we will be in a better position
to withstand the challenge if the court is convinced that the step is reason-
able. Second, even after a court has ruled that we have discretion under
the law to make suchan exclusion, it will undoubtedly hold that this discretion
must be exercised in a responsible way and that the reasonableness of any
particular exclusion is subject to review by the court. Under recent judicial
decisions, an agency cannot wait until it is sued before providing an explana-
tion for its regulatory actions: it must provide the explanation when the action
is taken.
§§§§§§§
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TITLE: Authority to Exclude Point Sources from the Permit Program
DATE: August 3, 1973
Mr. J. G. Speth
Natural Resources Defense
Council, Inc.
1710 N Sreet, N. W.
Washington, D. C. 20036
Dear Gus:
This is in response to your inquiry of May 30, concerning whether or not the
Administrator has authority to exclude point sources from the permit program.
I have carefully considered the points which you raised in your letter. I do
not understand your comments to constitute objections to our actions in ex-
cluding certain types of agricultural point sources from the permit program.
Instead, you disagree with the legal basis for our action; you would prefer to
reach the same result on a different legal basis, through a redefinition of the
term "point source." Thus, it would appear that our legal dispute is somewhat
academic, since it concerns reasoning rather than result. Nevertheless, we
shall address the basic legal points raised by the agricultural exclusions.
Two legal issues are involved: first, are farm discharges "point sources";
and second, may the Administrator nevertheless exclude certain categories of
point sources from the permit program?
As to the first question, there is little doubt that conveyances meeting the
definitional requirements of §502(14) are point sources, whether such con-
veyances appear on farms or elsewhere. Accordingly, it is not legally tenable
to treat farm discharges as nonpoint sources. Section 502(14) defines point
source to include "any discernible, confined and discrete conveyance, includ-
ing***any pipe, ditch, channel, tunnel, conduit, well, discrete fissure***."
There is nothing in the language or the legislative history of the Act to indicate
that pipes, ditches, etc., which occur on farms are
-------
Even though farm discharges (including discharges from any "concentrated
animal feeding operation," which is by definition a point source (§502(14))
may in many cases be point sources, the FWPCA clearly provides the Adminis-
trator with some discretion to exclude categories of such sources from the
permit requirements of §402.
In the first place, the Federal Water Pollution Control Act Amendments of
1972 made a number of significant alterations in the permit program originally
carried out under the Refuse Act (33 U.S.C. §407). Among the most important
of these was that, whereas the latter statute contained an absolute ban on
any discharge without a permit, the FWPCA was cast in discretionary terms.
Section 402(a)(l) provides that the Administrator "may" issue a permit; it
does not require him to issue permits to all point sources. Section 301(a)
provides that discharges from any point sources are unlawful "except as in
compliance with this section and sections 302, 306, 307, 318, 402 and 404."
The reference to section 402 clearly means that where the Administrator
stands ready to entertain an application from a point source, that point
source must obtain a permit. But if EPA regulations provide that the
Administrator will not entertain applications from certain agricultural dis-
chargers, it could hardly be argued that such dischargers would be in violation
of section 402.
It is also clear from the legislative history of the FWPCA that Congress did not
intend for the Administrator to be rigid in the application of the permit program
to all point sources. For example, even though marine engines might be
pbint sources under many circumstances, the Chairman of the Conference
Committee on the Federal Water Pollution Control Act Amendments of 1972
stated for the record that the Committee "would not expect the Administrator
to require permits to be obtained for any discharges from properly functioning
marine engines." Cong. Rec., Oct. 10, 1972 at E8454. The bill's chief
sponsor in the Senate, Senator Muskie, indicated that the Administrator would
by regulation distinguish between point and nonpoint sources in the agricultural
pollution area:
Guidance with respect to the identification of "point sources"
and "nonpoint sources", especially as related to agriculture,
will be provided in regulations and guidelines of the Adminis-
trator. The present policy with respect to the identification
of agricultural point sources is generally as follows:
. . .Natural runoff from confined livestock and poultry opera-
tions are not considered a "point source" unless the following
concentrations of animals are excluded: 1000 beef cattle; 700
dairy cows; 290,000 broiler chickens; 180, 000 laying hens;
55, 000 turkeys; 4, 500 slaughter hogs; 35, 000 feeder pigs;
12,000 sheep or lambs; 145,000 ducks.
Although we do not believe, as Senator Muskie implies, that the Administrator
may alter the statutory definition of "point source," these statements clearly
indicate congressional awareness that there must exist some discretion to
treat certain categories of sources as not subject to the permit program,
even though such sources are clearly "point sources" within the meaning of
§502(14).
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To be sure, there is a limit on EPA's discretion to exclude categories of
point sources from the permit program. The overall intent of the Act
was that the permit program would be the principal means of enforcements
and if administrative exclusions reached the point of undermining this intent,
they might be struck down. However, an administrative exclusion of farm
point sources (other than feedlots) would, we believe, be sustained by the
courts where the pollution problem is minor in relation to the administrative
progrems involved, or where the permit program would be an ineffective
mechanism for controlling a particular category of sources.
§§§§§§§
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PUBLIC ACCESS TO INFORMATION
TITLE: Comparability of Public Participation and Information Procedures
in Permit Program and Under NEPA
DATE: February 14, 1972
This is in response to your request for a comparision of the NEPA environ-
mental impact statement procedures with procedures that are now or may be
adopted under the permit program concerning public participation and in-
formation. I conclude that, considering permit program procedures and ob-
jectives, use of the environmental impact statement procedure in considering
permit applications would be duplicative in some respects and superfluous
in others.
1. The requirement of producing environmental impact statement serves
three broad purposes. First, the impact statement procedure informs the
public that a particular agency in contemplating a step that will significantly
affect the environment, permits the public to present views and comment
thereon (at a hearing in the agency's discretion), and, finally, requires the
agency in the final statement to articulate how its decision has been affected
by environmental considerations.
These functions of public information and participation are already provided
by the permit program procedures. Extensive and detailed public notice of
permit applications is required by 33 CFR 209. 131(i)(4) and (j)(l). Public
comment is invited in section 209.131(j)(2), which indeed requires that ma-
terial submitted by the public be considered in determining whether the
permit should be issued. Subsections (i){6) and (k) provide for public hearings
in the discretion of the Corps when there is "substantial public interest" in
the application. This is either the same or a more liberal provision for the
holding of hearings than that imposed by section 2(b) of Executive Order
11514, implementing NEPA. Indeed, section 402(a)(l) of S. 2770 as passed
by the Senate would seem to require the Administrator to hold public hearings
on permit applications where requested by interested parties; this would cer-
tainly amount to a more generous admininstrative hearing requirement than
exists under NEPA. Finally, section 209. 13l(d)(7)(i-vii) requires the EPA
regional representative to provide a full description of his recommendation
to the Corps as to whether, and on what terms, a permit should be granted,
and also requires a statement of "the basis for that recommendation." Thus
the permit program regulations also require a written decision and expla-
nation thereof, similarly to the requirement of a final environmental impact
statement. Moreover, the permit program personnel advise that they intend
to make improvement as to the effectiveness of public notice and the ability
of the public to affect the decision-making process, by regulation after en-
actment of the new legislation.
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In sum, the permit program procedures are either equal or superior to those
surrounding the production of environmental impact statement with respect
to public notice and involvement in the decision-making process.
2. A second function of the environmental impact statement procedure is to
provide the agency producing the statement with the comments on federal
agencies expert in environmental matters. Section 102(2)(c) NEPA. It need
hardly be mentioned that this is unnecessary—or, indeed, illogical--where
the agency making the decision is EPA.
3. The third function of the environmental impact statement procedure is to
force agencies to show that they have complied with the general require-
ments of NEPA to consider environmental matters in making decisions. In
this connection, Senator Jackson referred to section 102(2)(c) as "action-
forcing." See Calvert Cliffs' Coordinating Committee v. Atomic Energy
Commission, 449 F. 2nd 1109, 1112-1113 (C.A.D.C.). T think there is little
question that the permit program procedures do not require for decisions on
individual permits the breadth and depth of consideration of environmental
factors that NEPA requires to be reflected in an environmental impact state-
ment. The real question here, then, is whether the complete NEPA decision-
making process must be gone through whenever a permit application is con-
sidered. If it must, then there is little reason for EPA to refuse to commit
to paper an impact statement describing it. However if, as I believe, the
full-scale NEPA decisionmaking process is inappropriate when making
decisions on permit applications, then to require environmental impact state-
ments to accompany permit decisions would mean at least the waste of vast
amounts of EPA's resources.
Permit applications generally present issues of water quality alone. More-
over, in such cases, the permit terms should reflect application to the
individual case of general standards for the protection of water quality (and,
if the new legislation authorizes effluent standards, the task of deriving the
specific permit terms will be simpler). The permit program procedures
are entirely adequate to provide public notice, a chance to participate, and
a final decision adequate for judicial review of this process.
The root problem here is the assertion -- made by members of the public
seeking broadly to influence the construction and operation of industrial
plants, and seemingly accepted by the district court in Kalur & Large v.
R£sor, 3 EEC 1458,1466-1467 —that the full-scale NEPA processes are
necessary to determining permit applications because each such application
requires not only the comparatively simple application of set standards for
water quality but also the complex balancing process described by the B.C.
Circuit in Calvert Cliffs' Coordinating Committee v. Atomic Energy Com-
mission, 4*5T7Z3~ilO(J (C.A.D.CTTT™ '—~
I believe this line of reasoning to be seriously in error. Basically, the
court of appeals' reasoning in Calvert Cliffs was that in licensing a nuclear
powerplant, NEPA required tHe~7ffi€~To"~go" beyond the question of whether
the proposed plant would meet applicable water quality standards (as the
state had certified it would) to the greater issue of whether, taking into
account all of the effects on the environment that the proposed plant would
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have, the AEC might want to impose stricter pollution control requirements
or perhaps might decide not to license the project at all. The heart of the
court's opinion on this score--typically, an overwhelmingly important pro-
blem disposed of in a brief, elliptical discussion--is contained in a few
sentences (449 F.2d at 1113):
The sort of consideration of environmental values which
NEPA compels is clarified in section 102(2)(A) and (B). In
general, all agencies must use a systematic, interdis-
ciplinary approach" to environmental planning and evalua-
tion "in decisionmaking which may have an impact on man's
environment." In order to include all possible environmental
factors in the decisional equation, agencies must "identify
and develop methods and procedures * * * which will insure
that presently unquantified environmental amenities and
values may be given appropriate consideration in decision-
making along with economic and technical considerations."
"Environmental amenities" will often be in conflict with
"economic and technical considerations.1' To''consider" the
former "along with" the latter must involve a balancing pro-
cess. In some instances environmental costs may outweigh
economic and technical benefits and in other instances they
may notT But NEPA mandates a rather finely tuned and
"systematic" balancing analysis in each instance.
The court goes on to point out that NEPA requires environmental impact
statements "to ensure that the balancing analysis is carried out and given
full effect* * *." Id at 1114.
The court held, then, that AEC had to balance environmental matters against
"economic and technical considerations" in determining whether, and on what
terms, to license a nuclear project. What this balancing analysis actually
comprehends the court makes somewhat clearer further on, in explaining
why it is not sufficient for the AEC to rely on the state's section 21(b)
certification (449 F.2d at 1123):
It may be that the environmental costs [of the project],
through passing prescribed standards, are nonetheless
great enough to outweigh the particular economic and
technical benefits involved in the planned action. The
only agency in a position to make such a judgment is the
agency with overall responsibility for the proposed fed-
eral action--the agency to which EPA is specifically di-
rected.
In my view, this sort of balancing is utterly out of place in the permit pro-
gram. The court of appeals' reasoning that the AEC is in the position to
weigh the "economic and technical benefits" flowing from a nuclear plant
may be accepted, since that is the AEC's task, but it is quite a large
leap to say that EPA or the Corps of Engineers is able—or was intended
by Congress -- to assess the "economic and technical benefits" of all of the
establishments that discharge into the navigable waters, and to balance those
benefits against environmental costs as part of the process of determining
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whether, and on what terms, to issue a discharge permit. It is incon-
ceivable to me that to qualify for a discharge permit an applicant whose
proposed discharge would comply with applicable standards should nonethe-
less have also to demonstrate to EPA or the Corps that his plant produces
materials of sufficient benefit to society to justify permitting that discharge.
That Congress could not have intended to centralize such vast industrial and
land-use planning powers in a federal agency, is the crux of our argument
that NEPA does not apply to the regulatory activities of EPA and other fed-
eral agencies concerned with the environment.
If this position is correct, and if EPA is not required to carry out the bal-
ancing exercise described in Calvert Cliffs, then there is no reason to re-
quire EPA to produce section 102(2)(C) statements as a part of the permit
process.
§§§§§§§
TITLE: Confidentiality of Effluent Data
DATE: September 27, 1973
It has come to my attention that certain permit proceedings have taken
place in the absence of public disclosure of effluent data contained in applica-
tions under the old Refuse Act Permit Program. "Effluent data" as used
herein means that information relating to the quantity and quality of effluent
being or anticipated to be discharged by an applicant. The data are reported
in the following places on the Refuse Act Permit Application:
Section I - 14, 15, 24, 26
Section II - 17, 18, 19, 20, 22(3) (4) (5),
23, 25 (depending on contents)
Section II - Part A (3) (5) (6) (7)
Section II - Part B
B-l (3) (4) (5)
B-2 (3) (5) (6) (7)
B-3 (3) (5)
Section 308 of the FWPCA provides, in effect, that information submitted
to the Administrator in connection with his implementation of section 402
of the Act shall be available to the public, save to the extent such disclosure
would "divulge methods or processes entitled to protection as trade secrets
of such person. . .," but that "effluent data" are never eligible for confi-
dentiality. Section 308 was not, of course, in effect with respect to appli-
cations submitted under the RAPP Program, and it might be argued that they
are therefore not now subject to the liberalized disclosure provisions of
section 308. On the other hand, section 402(a)(5) of FWPCA provides that
any RAPP application pending on the date of enactment of P.L. 92-500 "shall
be deemed to be an application for a permit under this section."
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I therefore conclude that the provisions of section 308 are indeed applicable
to the RAPPapplications by virtue of section 402 (a)(5) and, as a result, that
effluent data contained in such applications can never qualify for confidential
treatment.
It should be unnecessary to state that a hearing on a permit application
becomes a matter of hollow procedural formality if the data concerning the
composition of the effluent involved are not available to the public. It should
also be noted that it would have been fully within the Agency's powers to
require RAPP applicants to resubmit current effluent data under section 308;
had it done so, there would of course be no doubt that the effluent data in
question were ineligible for withholding from the public on grounds of trade
secrecy or otherwise. I therefore consider it extremely unlikely that any
court would hold that, as a precondition to invoking the clear policy of section
308, the Agency would have to indulge in largely redundant data collection
on such a massive scale.
Therefore, in no case should confidential treatment be accorded to effluent
data in the NPDES program, whether that data are contained in a RAPP
application or in an application on an NPDES form, or otherwise.
§ § , § § § § §
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WATER QUALITY STANDARDS
TITLE: Disapproval of Overly Stringent State Standards
DATE: August 2, 1973
QUESTION:
Can EPA promulgate water quality standards for a state which are less res-
srictive than the state standards which call for a "no discharge" policy?
ANSWER:
Yes. However, the state may adopt and enforce more stringent standards,
and EPA must apply such standards in issuing permits under section 402 of
the FWPCA.
DISCUSSION:
For the purposes of this discussion, I assume that you are referring to
standards which have been adopted by the state and submitted to EPA pur-
suant to section 303(a) of the FWPCA. The Administrator is required to
determine whether or not such standards are consistent with "the applicable
requirements of [the FWPCA] as in effect immediately prior to the date of
enactment of the Federal Water Pollution Control Act Amendments of 1972. "
The requirements of the old law are set forth in section 10(c)(3) of the old
FWPCA. The basic requirement is that "standards of quality established
pursuant to this subsection shall be such as to protect the public health or
welfare, enhance the quality of water and serve the purposes of this act."
In determining whether or not the standards submitted by Missouri meet the
requirements of the FWPCA, two question must be answered. First, is a
prohibition of the discharge of pollutantts into a body of water a "water
quality standard" under section 10(c) of the old law, and if so, is such a
' zero discharge" requirement necessary to comply with the requirements of
section 10(c)(3).
As to the first question, it seems clear that what the state of Missouri pro-
poses to establish is an effluent standard, and not a water quality standard.
Under the old FWPCA, water quality standards included water quality criteria
and a plan of implementation and enforcement of such criteria. While the
term ' criteria" is nowhere defined, it seems clear that it does not include
effluent standards, but applies only to the quality of receiving waters. This
may be inferred from section 10(c)(5), which provides abatement procedures
for "the discharge of matter into. ... interstate waters or portions thereof,
which reduces the quality of such waters below the water quality standards
established under this subsection...." Since the proposed Missouri standard
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appears to be an effluent standard, rather than a water quality standard,
it would not be approvable under the FWPCA. Your letter does not indicate
that the State's "no discharge" policy is a plan of implementation and enforce-
ment to achieve specified criteria. Such a'case would pose different problems.
Assuming, for the purposes of discussion, that the standards submitted by
the State of Missouri are water quality standards, and not effluent standards,
EPA would still retain the authority to disapprove them on the grounds
that the state standards were more stringent than required to meet the tests
set forthin section 10(c)(3) of the old law, and to promulgate standards under
section 303(b) of the new law. It should be recognized that any such dis-
approval by the Administrator would not preclude the state from enforcing
its standards within the state under its own law (see section 510) or from
enforcing its standards against any federal agency (see section 313). More-
over, section 301(b)(l)(C) would require the Administrator or a State to
require compliance with any such requirement, enforceable under State law,
in an NPDES permit issued under §402 of the Act. However, even if the
Missouri submission were a "water quality standard", disapproval would be
warranted if we determined the standard to be more stringent than the law
requires. Our approval of an overly restrictive standards would unneces-
sarily subject us to judicial challenge on grounds that our action was arbitrary
and capricious.
§§§§§§§
TITLE: Issuance of Discharge Permits Based upon Proposed Water
Quality Standards
DATE: May 31, 1973
QUESTION
Will the FWPCAA of 1972 support the issuance of discharge permits based
upon proposed standards published for a State by EPA in the Federal Register?
ANSWER
No.
DISCUSSION
Section 301(b)(l)(C) of the Federal Water Pollution Control Act requires the
achievement by July 1, 1977, of effluent limitations necessary to meet "water
quality standards, treatment standards, or schedules of compliance,
established pursuant to any State law or regulations. . .or any other Federal
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law or regulation, or required to implement any applicable water quality
standard established pursuant of this Act." The applicability of any of the
enumerated requirements depends upon whether it has been "established"
pursuant to State or Federal law.
Your question is limited to the case where standards are proposed by EPA
pursuant to §303(b). The statute clearly sets forth in that subsection a
procedure whereby standards are "proposed" by EPA, and, unless a State
adopts approvable standards, the proposed EPA standards are "promulgated"
within 190 days. Until such time as the standards are "promulgated, " EPA
would not be authorized to apply them.
However, it should be pointed out that nothing in the statute requires the
Administrator to wait the full 190 days before promulgation. State-adopted
standards must be considered only if adopted prior to promulgation by EPA.
Accordingly, in any case where it is considered urgent that the proposed
standards be applied in the permit issuance process, I suggest that a notice
be promptly prepared promulgating the proposed standards.
§§§§§§§
TITLE: Objections of a Downstream State Under §401(a)
DATE: March 29, 1973
QUESTION
Under section 401(a) of the FWPCA, may a downstream state object to issu-
ance of a discharge permit on the basis of violation of laws or regulations of
such state which are not directly related to instream water quality?
ANSWER
No. Under section 401(a), the downstream's state's objections are limited to
violations of water quality requirements.
DISCUSSION
Section 401(a)(2) of the FWPCA requires the Administrator to notify a down-
stream state whenever he determines that the issuance of a Federal license
or permit would "affect. . .the quality of the waters of" such state. The
affected state may within sixty days notify the Administrator and the licensing
or permitting agency of its objections if it "determines that such discharge
will affect the quality of its waters so as to violate any water quality require-
ment in such state." The Federal licensing or permitting agency must then
condition any license or permit granted "in such a manner as may be neces-
sary to insure compliance with applicable water quality requirements," pre-
sumably those of the affected state.
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The precise question involved here is whether a downstream State may raise
objections to a proposed discharge under §401 not related to water quality,
such as implementation plan requirements under water quality standards, and
the like. Such a result would appear to be precluded by the statute, which
accords a different degree of flexibility to affected downstream states than
is accorded to certifying states. States in which a discharge originates may
set forth in certifications "effluent limitations and other limitations, and
monitoring requirements necessary to assure that any applicant. . .will
comply with. . .any other appropriate requirement of state law. ..." Under
§401(d), these requirements are made conditions to the issuance of any Fed-
eral license or permit. Accordingly, states in which a discharge originates
have a great deal of authority to include in certifications conditions relating
to monitoring and effluent requirements, and any other appropriate require-
ments.
Downstream states, however, have considerably less flexibility. The situa-
tions in which a downstream state may object are limited to those in which
a "discharge will affect the quality of its waters so as to violate any water
quality requirement in such state. ~. 77" (Emphasis added). And while
section 401 authorizes the state in which a discharge originates to require
compliance with "any other appropriate requirement of state law," only the
downstream State's "applicable water quality requirements" are recognized
by section 401. Accordingly, section 401 cannot be read to authorize a down-
stream state to object to permit issuance on the basis of implementation
plan requirements, or similar non-water quality requirements.
§§§§§§§
TITLE: Enforcement of Water Quality Standards
DATE: November 20, 1972
QUESTION
Are water quality standards enforceable under the 1972 Amendments to the
FWPCA, and if so, by what mechanism?
ANSWER
The issuance of permits under section 402 will be the principal method for
enforcing water quality standards. Standards will also be enforceable under
section 309, by administrative or judicial order. However, if a discharger
has filed a permit application, EPA may not proceed against him prior to
December 31, -1974, for failure to comply with water quality standards until
final administrative disposition of the application. In addition, municipalities
have a 180-day grace period beginning on the date of enactment of the 1972
Amendments in order to file their permit application; and during this grace
period, EPA may not take action against them for violation of water qualtiy
standards.
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DISCUSSION:
1. Section 301(b)(l)(C) of the FWPCA provides that every discharger shall
achieve, no later than July 1, 1977, "any more stringent limitation, includ-
ing those* * -'required to implement any applicable water quality standards
established pursuant to this Act." Violations of section 301(b)(l)(C) are
enforceable under section 309, which establishes a system of federal enforce-
ment. This interpretation is confirmed by the Report on the House Committee
on Public Works, which stated:
"The requirements of section 303 which provide for
water quality standards and implementation plans may
be enforced under the provisions of section 309 because
section 303 is operative under section 301(b)(l)(C). "
(House Report No. 92-911, 92nd Cong., 2nd Sess. at p. 115.)
2. Section 309 provides for both administrative and judicial enforcement.
Whenever the Administrator finds that any person is in violation of specified
sections of the Act--including a violation of water quality standards --he may
either issue an administrative order requiring compliance, or he may bring
a civil action for injunctive relief in the Federal courts. there is also a
provision for notifying the states of the administrative finding of a violation.
When a discharger "willfully or negligently" violates specified sections of the
Act -- including violations of water quality standards -- he is subject to a
possible fine and imprisonment. In addition, a civil penalty is prescribed
for any violation, including violations of water quality standards.
EPA has not yet adopted regulations establishing its procedures for issuing
administrative orders under section309. Until regulations under section 309
are issued, I cannot be more specific as to the procedures to be used.
3. Any discharger which has filed a permit application, is exempt from en-
forcement under section 309 until December 31, 1974, so long as there
has been no final administrative disposition of the application (unless final
administrative disposition has not been made because of the applicant's fail-
ure to furnish informaton reasonably required to process the application).
(Section 402(k)). In addition, municipalities and other dischargers which
were not subject to the Refuse Act have 180 days from the passage of the
1972 Amendments to apply, during which grace period they also are not sub-
ject to enforcement under section 309 for violation of water quality standards.
4. The principal method of enforcing water quality standards will be through
the permit system. Section 402(a)(l) provides that permits must be issued
on condition that the discharge will meet all applicable requirements under
section 301, among other sections; and section 301 includes the requirement
of meeting water quality standards. Thus, the conditions of the permit must
insure compliance with water quality standards. Once the permit is issued,
section 402(k) provides that compliance with the permit shall^be deemed
compliance, for enforcement purposes, with section 301. Accordingly, once
a permit is issued, the discharger may not be sued for violation of water
quality standards, but would have to be sued for noncompliance with the
terms of the permit.
§§§§§§§
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TITLE: Revision of Applicable Water Quality Standards
DATE: January 13, 1971
This confirms our earlier informal opinion that applicable water quality
standards, including criteria and plans of implementation and enforcement,
adopted pursuant to section 10(c) of the Federal Water Pollution Control
Act (the Act) continue in exclusive effect until the Administrator of the
Environmental Protection Agency determines that revised standards are
consistent with section 10(c)(3).
Section 10 of the Act provides for a State-Federal process to establish
standards for interstate waters which, upon Federal determination of con-
sistency with the Act.
". . .shall thereafter be the water quality standards
applicable to such interstate waters or portion thereof."
Now that standards of all the states have been approved in major part and
the Water Quality Office (WQO) is working with the states to clear up the
remaining exceptions, the question of revision of approved standards has
come to the fore. A number of states have adopted changes in implemen-
tation plans, which present the potential threat of a confusing dual system
of standards for interstate waters.
The argument is made that standards, and particularly implementation plans
must be realistic and flexible. In certain instances financial and other con-
straints have made it impossible to meet the schedules originally set. In
other cases, technological advances and increased levels of Federal and State
funding may permimt tightening of the original schedules. Similarly, ad-
vances in technology and demands for clean water are expected to produce
upgrading of water quality criteria. A number of questions which have arisen
from this situation and our answers follow.
QUESTION
May standards be revised, in view of the language of section 10(c)(l) that
standards adopted shall "thereafter be" the applicable standards?
ANSWER
Yes, it is clear from the overall context of section 10(c) that the standards
originally adopted are to apply only until a revision has been accomplished
pursuant to the Act. Section 10(c)(?) specifically provides for such revision
through a procedure which envisions a standards-setting conference of all
interested parties, Federal publication of standards in regulations and, final-
ly. Federal promulgation of standards six months after publication, if the
State has not adopted acceptable standards and if a petition for a formal
public hearing pursuant to section 10(c)(4) has not been filed.
QUESTION
Is the section 10(c)(2) procedure the exclusive method for revision of stan-
dards?
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ANSWER
No. A Solicitor's memorandum of June 20, 1968, advised the Commissioner,
Federal Water Pollution Control Administration, that the Secretary may de-
termine that state-adopted additions to or changes of standards validly meet
the Federal criteria; that upon such determination the changed standards may
be enforced to the same extent as the initially adopted standards; and that if,
in accord with its legal requirements, a State conducts a public hearing before
it adopts additions to or modifications of such standards, the requirement and
purpose of a "10(c)(2) conference" has been, satisfied. The opinion provides
that, while the Act requires a public hearing prior to State adoption of stand-
ards, this requirement has been met by each State in its initial adoption of
standards. Therefore, the memorandum suggests that State law, as interpre-
tated by State legal offices, should be relied upon to indicate whether further
public hearings are required when originally submitted standards are pro-
posed to be changed. Finally, the opinion indicates that even minor adjust-
ments in implementation schedules are not valid without formal revision of
standards, including compliance with State administrative procedural require-
ments, Federal determination of consistency with the Act, and official publi-
cation.
We support these conclusions of the prior opinion. The entire tenor of the
Act favors state action in the setting and enforcement of standards. Indeed,
section 10(c)(2) provides for an exception to final Federal promulgation of
standards where the state, during the 60-day period from publication, adopts
water quality standards which are determined to be consistent with section
10(c)(j). Presumably at that point the Administrator is required to accept
and publish the state adopted standards. This is a further indication that
the section 10(c)(j) procedure was intended not as the exclusive way to revise
standards, but as a means for Federal action in default of appropriate State
action.
QUESTION
What is the status of revised standards adopted by a State prior to approval
by the Administrator, EPA?
ANSWER;
Section 10 provides that the criteria and plan which the Administrator deter-
mines to be consistent with section 10(c)(3) are to be ". . .the water quality
standards applicable to such interstate waters or portions thereof." (Em-
phasis supplied.), not the "Federal" or "Federal or State standards." The
legislative intent to have one system of applicable standards for the interstate
waters of a State is clear. certainly it is reasonable from an administrative
standpoint to do so. The present doubts raised by state adoption of changes
in implementation plans suggest the confusion which a dual system of stand-
ards would entail.
Therefore until revised standards are submitted by the State and determined
by the Administrator of EPA to be consistent with the Act or, alternatively,
until he promulgates new standards under section 10(c)(2), the initially ap-
proved criteria and plan are the only legal and enforceable standards appli-
cable to the subject interstate waters of the State.
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TITLE: Revision of Water Quality Standards
DATE: February 15, 1973
Mr. Sabock asked me to furnish you with an opinion on the following questions:
QUESTIONS:
Where a Regional Administrator has notified a State, under section 303(a)(l)
of the FWPCA, of specified changes in water quality standards needed to meet
the requirements of the Act as in effect prior to the 1972 Amendments, must
the Administrator proceed to propose and promulgate the specified changes ?
Or does the Administrator have some discretion not to proceed at all, or to
propose and promulgate different changes ?
ANSWER:
Where the Administrator determines that the prior determination of the
Regional Administrator was mis taken and that the State standard does conform
to the FWPCA as in effect prior to the 1972 Amendments, the Administrator
may elect not to proceed with proposal and promulgation of the changes
previously specified by the Regional Administrator. However, the Adminis-
trator should have a supportable written statement to explain the changed
determination.
If the Administrator determines that the changes specified by the Regional
Administrator were more stringent than needed to meet the requirements
of the Act as in effect prior to the 1972 Amendments, he may make appro-
priate changes in his publication of proposed regulations. Here also, there
should be a supportable statement of reasons for the changed determination.
DISCUSSION;
Section 303(a)(l) of the FWPCA provides that existing state water quality
standards for interstate waters shall remain in effect "unless the Adminis-
trator determined that such standard is not consistent with the applicable
requirements of this Act as in effect immediately prior to the date of enact-
ment of the Federal Water Pollution Control Act Amendments of 1972."
Section 303(a)(l) goes on to provide that if the Administrator "makes such
a determination," he shall notify the states by January 18, 1973, and
"specify the changes needed to meet such requirements. " The section further
provides: "If such changes are not adopted by the State within ninety days
after such notification, the Administrator shall promulgate such changes
in accordance with subsection (b) of this section." Subsection (b) provides
that the Administrator "shall promptly prepare and publish proposed regula-
tions setting forth water quality standards for a State" where a standard
submitted by the State "is determined by the Administrator not to be consis-
tent with the applicable requirements" of subsection (a). Finally, section
303(b)(2) provides that the Administrator "shall promulgate" any water quality
standards which he has proposed, "unless prior to such promulgation, such
State has adopted a water quality standard which the Administrator deter-
mines to be in accordance with subsection (a)."
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On January 18, 1973, all the Regional Administrators except one, acting
under a delegation of the Administrator's authority, sent out letters to most
of their States specifying changes needed in the State's water quality stand-
ards needed to conform to the requirements of the old FWPCA. You have
now inquired whether the Administrator is required to propose and promul-
gate these changes as federal regulations in each case where the State does
not adopt the specified changes.
The language of section 303 is mandatory. Once the Administrator notifies
the States of changes needed to meet the requirements of the old FWPCA
section 303 provides that the Administrator "shall" propose and promulgate
such changes if the State fails to do so. However, the entire process hinges
on the initial determination under section 303 ,(a) (i) that the State water
quality standard "is not consistent with the applicable requirements" of the
old FWPCA, and that the changes specified are "needed to meet such require-
ments." There is a general doctrine of administrative law that an agency
is free to change its mind— at least for the period during which the agency's
decision is not yet final or is still subject to judicial re view. J7 In this
case, EPA's determination that various state standards are not adequate
to meet the requirements of the old FWPCA is clearly not yet final and may
still be subject to judicial review. Indeed, even after final promulgation
of the standards, they are still subject to continuing review and revision,
under section 303(c).2_/ In these circumstances, I would expect a court
to hold the Administrator has continuing authority to change his mind regard-
ing the adequacy of state standards and the need for specified changes.
However, because of the mandatory language of section 303, there is some
legal risk here. For this reason, we should proceed with caution. If, in
any case, there is a decision not to proceed with changes that have been
specified by a Regional Administrator, we should have a written statement
of reasons why we now think that the Regional Administrator was wrong.
This will enable us, in the event of judicial challenge, to show the court
that there was in fact a change of mind as to the correctness of the Regional
Administrator's determination, and that the failure to proceed was not simply
a political judgment.
I/ See International Harvester Co. v. Ruckelshaus, D. C. Cir. February 10,
T973, slip opinion at p. 2U:"Indeed, the fact that the Administrator issued
the Technical Appendix almost three months after his Decision, at a time
when judicial review had already begun to rut its course, indicates that the
Agency did not believe that agency consideration was frozen from the moment
that the suspension decision was rendered, a view we approve. The EPA
had latitude to continue further consideration* * *." See also Greater Boston
Television Corp. v. FCC, 463 F. 2d (B.C. Cir. 1971): "[S]o long as the
time for appeal to the court has not expired the FCC has jurisdiction to
provide reconsideration in its sound discretion."
2] Revisions under section 303(c) are subject to a new set of statutory
requirements, rather than the requirements of the old FWPCA. (Section
303(c)(2)). However, the new requirements repeat almost verbatim the
requirements of the old FWPCA.
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The same reasoning supports the conclusion that, if we believe that the
Regional Administrator was correct in determining that the State standard
was inadequate but conclude that the changes specified by the Regional Ad-
ministrator were more stringent than necessary to meet the requirements
of the law, the Administrator may propose and promulgate less stringent
changes in the State standard. However, here also, we should have a written
statement of reasons for the changed determination.
§§§§§§§
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DRINKING WATER STANDARDS
TITLE: Legal Review of Task Force Report
DATE: December 15, 1971
Pursuant to your request we have reviewed the 1971 revision of the drinking
water standards prepared by the Technical Task Group of the Water Supply
Programs Division. The attached memorandum by Mr. Miller of my office
sets forth our comments in detail. Some of these comments are of a purely
technical nature and I will not summarize them here. Others relate to sub-
stantial problems of statutory authority not only for the 1971 revisions of
these standards but also for the present drinking water standards which were
last revised in 1962 (42 CFR, Part 72, Subpart J).
The only specific statutory support for the standards is to be found in 42
U.S.C. 264 which authorizes regulations to be promulgated for the purpose
of preventing the spread of "communicable disease. " Notwithstanding this
language, the drinking water standards have long included limits for sub-
stances which clearly have no relation to communicable disease (i.e.,
chemical, physical and radiological substances) and in some instances have
no relation to any direct health hazard whatever (e.g., taste). In addition,
both the present and revised versions of the drinking water standards contain
requirements which appear unrelated to interstate movement of disease
(which in the past has been attacked by requiring interstate carriers to use
only water coming from certified water supply sources, see 42 CFR
§§72.101, 72.102). Therefore, a significant portion of the standards are
probably not enforceable under the 1971 revision since it is more ambitious
in providing an overall set of standards to protect the maximum number
of water users (see e. g., the sodium limit which is designed to set limits
designed to prevent harm to those on extremely restricted salt diets). In
addition, the standards for the first time forthrightly designate certain limits
as relating only to esthetic considerations.
This state of affairs leads to two recommendations. First, legislative
amendment should be sought as soon as possible to provide solid authority
for drinking water standards regardless of whether the harmful effect is
communicable or not and whether or not the water supply serves as a source
for interstate carriers.
Secondly, although it is not legally impossible to promulgate standards which
are partially unenforceable, the agency could perhaps be rightfully accused
of being less than candid should it issue standards which purport to be a
complete system of regulation. We are informed by Mr. William N. Long,
Deputy Director, Water Supply Programs -Division, that the inability to
enforce chemical, physical and radiological standards is already publicly
known. Therefore, there seems to be no reason not to include a brief intro-
ductory statement within the drinking water standards declaring that the
bacteriological limits are mandatory in order to secure a certification of
a water supply pursuant to 42 CFR §72.102, but that chemical, physical
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and radiological limits are recommended to be followed in order to achieve
satisfactory water treatment. This statement could also point out that failure
to achieve water quality meeting the chemical, physical and radiological
limits may be evidence of poor treatment practices which could lead to the
presence of bacteriological matter in violation of the bacteriological limits.
Further investigation procedures of EPA might then be required. A draft of
the statement is contained in Mr. Miller's memorandum.
Such a statement would make the application of the regulation clear with
respect to non-bacteriological limits, and in addition it would directly key
in the drinking water standards to section 72.102 of the regulations which
makes the whole regluatory system applicable only to interstate carriers.
An additional problem is raised in the 1971 revision of the standards insofar
as a specific category of limits is created for esthetic considerations (i. e.,
those relating to taste, smell or color but not constituting a health hazard).
I agree with the suggestion in Mr. Miller's memorandum that it would be
preferable (even should a broader statute be enacted) to include in sections
of the standards dealing with esthetic limits some justification of these limits
on the grounds of an indirect health effect. In the past this has been stated
in terms of a likelihood that a system exceeding esthetic limits may well
also be excluded esthetic limits may well also be exceeding health related
limits and further that water users who find the water aesthetically dis-
pleasing will often turn to an alternative supply which may be even less
safe (see 1962 Standards, Appendix pp. 21-22).
s s s s s s- s
TITLE: Legal Review of Task Force Report--Drinking Water Standards
DATE: December 15, 1971
The statutory basis for regulation by EPA, formerly by the Public Health
Service, of drinking water quality is set forth in 42 U.S. C. §§216(b) and
264(a):
"[§216](b) The Surgeon General, with the approval of
the Secretary, unless specifically otherwise provided,
shall promulgate all other regulations necessary to the
administration of the Service, including regulations with
respect to uniforms for employees, and regulations with
respect to the custody, use, and preservation of the re-
cords, papers, and property of the Service. "
"[§264](a) The Surgeon General, with the approval of the
Secretary, is authorized to make and enforce such reg-
ulations as in his judgment are necessary to prevent
the introduction, transmission, or spread of communi-
cable diseases from foreign countries into the States or
possessions, or from one State or possession into any
other state or possession. "***(emphasis added).
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Section 204 is derived from the Federal Quarantine Act of 1893 which was
included in a 1944 recodification of public health laws. No substantive
change was intended (§361, 58 Stat. 703, 1944 U.S. Code Cong. Service
1211, 1234-35). Both statutes unfortunately limit the regulatory authority
to prevention of "communicable disease" from being introduced into or
spreading between States or from a foreign country into a State. Ij
Drinking water standards were promulgated by the Surgeon General as long
ago as 1914, and standards published in the Federal Register in 1942 included
chemical and physical limits as well as bacteriological standards. The
present standards, promulgated in 1962, included radiological limits for the
first time. They are implemented by three other provisions of Part 72,
Title 42, CFR.
Section 72(1) defines "potable water" as water meeting standards prescribed
by Subpart J of part 72 (Drinking Water Standards). Section 72. 101 provides
that only potable water shall be provided for drinking water by any operator
of any conveyance engaged in interstate traffic and that such water shall
be obtained from "watering points" approved by the Surgeon General. 2_/ Sec-
tion 72. 102 then states that the Surgeon General shall approve a watering
point if the water supply meets Drinking Water Standards (Subpart J).
When the present, and past, drinking standards are set against the statutory
background described above, three areas of regulation appear unsupported
by statutory authority:
1. Standards relating to chemical, physical, and radio-
logical substances which are harmful to health but which
do not lead to "communicable disease"]
2. Standards relating to "esthetic" factors that pose no
health hazard as such; and
3. Standards and regulatory requirements unrelated to
control of the quality of drinking water supplied to inter-
state carriers but aimed at protecting the local populace.
I am informed by Mr. William Long, Deputy Director, Water Supply Pro-
grams Division, that work is underway with respect to an overall legislative
program relating to drinking water which would correct the present gaps in
statutory authority. This is clearly necessary since even though the Tech-
nical Task Force revision of the Standards deals with the statutory voids
rather successfully, EPA will nevertheless be promulgating standards which
are in large part unenforceable until a legislative change is made. I have
also learned from Mr. Long that the unenforceability of present drinking
water standards as to chemical, physical and radiological standards is a
matter of public knowledge.
IT The 1893 statute spoke in terms of preventing the introduction of "con-
tagious or infectious diseases" 27 Stat. L. 450, ch. 114; 42 U. S. C. 92.
2_/ All functions of the Surgeon General were transferred to the Secretary
of HEW by Reorganization Plan No. 3, 80 Stat. 1210, 31 F.R. 8855. 1970
Reorganization Plan No. 3, Sec. 2(a)(3)(ii)(B) then transferred these func-
tions, insofar as they relate to drinking water (the Bureau of Water Hygiene
in HEW) to the Environmental Protection Agency.
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Assuming we are presently stuck with an inadequate statutory scheme, I have
made certain suggestions in the technical comments set forth below which
are intended to strengthen the standards from a statutory point of view. In
addition to these suggestions, I would recommend including the following new
Section 1 in the standards:
1. Application of Standards
The drinking water standards contained in this Subpart
J are divided into three groups dealing respectively with
(i) bacteriological quality, (ii) chemical and physical
quality and (iii) radiological quality. Requirements as
to bacteriological requirements (section 5.1) must be sat-
isfied in order to secure approval of the Environmental
Protection Agency of a watering point under section
72.102 of this Part 72, Title 42, Code of Federal Regula-
tions. Requirements as to chemical and physical quality
(section 5. 2) and radiological quality (section 5. 3) are
recommended to be followed in order to achieve satis-
factory water treatment. Failure to achieve the maximum
allowable limits contained in sections 5.2 and 5.3, how-
ever, may be evidence of inadequate treatment practices
which could lead to violations of section 5.1 sampling re-
quirements and limits. Further investigations of the ade-
quacy of water treatment methods and processes could
be necessary.
This statement would more clearly limit the scope of the regulations to that
of their statutory base by making only the bacteriological limits mandatory
and by keying the entire set of standards into the regulation of interstate
carriers provided for by 42 CFR §§72. 101 and 102. In addition, it avoids
making the esthetic limits exceed the bounds of the statute since these limits
are contained exclusively within the chemical and physical section. Should
the statute be amended to cover harmful non-bacteriological substances,
however, the esthetic limit will have to be justified, hopefully by an indirect
link to human health. A suggestion along those limits is included below in
discussing section 11.72 of the draft standards.
Drafting Comments
§1.72--"Maximum allowable limit (esthetics)"
As noted above, the present revision of the standards, for the first time,
explicitly includes esthetic considerations as a relevant factor in setting the
standards. Such considerations were already inherent in the 1962 standards
(see §§4.2 and 5.2). However, the inclusion of the term "Maximum allow-
able limit (esthetics)" within the definition section makes the distinction much
more obvious. In addition, esthetic considerations are separately treated
in the limits section of the standards. I believe the standards would have a
stronger statutory base if reference is made wherever possible to the con-
nection between esthetic factors and the likelihood that the water supply
system is not being managed properly and the consequent possibility that
health related hazards are also present in esthetically displeasing water.
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Also, esthetic consideration could be supported by the mention of the his-
torical experience that once water reaches a certain point of esthetic un-
pleasantness the consumer turns to other sources of supply which may be
less safe. I would, therefore, suggest the following two additional sen-
tences be added to §1. 72:
"The presence of esthetically inferior water in a water supply
system or water source may indicate the presence of sub-
stances which are hazardous to human health. Moreover,
experience has shown that if water becomes inferior many
people will turn to alternative water supplies or sources
that may be less safe rather than accept and use esthe-
tically inferior water."
The same statement should then be added to §§4.231 (sampling for chemical
and physical characteristics) and 5.213 (explaining the basis of esthetic
limits as applied to chemical and physical substances).
§1.8 -- "Pollution"
This section presently includes at the end of the sentence the words "or im-
pair the usefulness of the water." This seems to suggest an economic con-
sideration which would be beyond the bounds of considerations bearing upon
"communicable disease". Therefore, I believe the standards would be more
easily defended if they are drawn somewhat more narrowly and the words
following "unnecessary risk" were deleted.
§1.9 -- "Public Notification"
This section is one of those which raises the question of the statutory au-
thority to require an affirmative act on the part of the water supplier for
noncompliance with standards unrelated to communicable disease. It also
seems to require acts not necessarily related to regulating interstate car-
riers. To a large extent the inclusion of this section is a matter of adminis-
trative policy which is beyond the scope of this memorandum. However, I
am not sure how much it really adds to the notification requirements included
in the body of the bacteriological, chemical and radiological limits. If it
does not serve a specific needed purpose, I would be inclined to delete it al-
together on the theory that we should not stir up objections to the scope of the
regulations if not absolutely necessary.
§2.2(d) — General classes of water sources (waste water)
Mr. Long states that the intention of this subsection is to indicate that the
standards are not designed to set safe limits for sewage treatment effluent
water. This water source is regarded as unique, and there are apparently
still many unknowns with respect to insuring the safe use of such water for
drinking water purposes. I believe the intention can be made clearer if the
regulation can be redrafted as follows:
"(d) Waste water--these standards are not designed to apply,
and may not be satisfied, when waste water effluents are used
as a raw water source."
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§4.22 -- Failure to meet sampling limits
The last sentence of section 4.22 states that if the sampling limits are not
met during six consecutive months this fact must be made known to the con-
sumer. Since the number of samples required by §4. 22 is expressed in terms
of a given percent or number per quarter rather than per month, I would
suggest amending the last sentence as follows:
"Failure to meet these sampling limits two (2) consecutive
quarters must be made known to the consumer."
§5.212 -- Basis of maximum allowable- limits (health)
The statement contained in this section indicates that chemical and physical
quality limits have been set from the broad point of view of habitual exposure
("the total environmental exposure of man") which seems to suggest that the
limits have been set not with a view to transient use of water by interstate
carrier but rather to protect local users of the water supply subject to the
standards. I recognize, however, that the standards would be virtually mean-
ingless if the limits were to be set at acutely toxic levels. I think they can be
defended as presently drawn on the ground many water users are in fact
habitually transient users, and therefore the limits must be set from the point
of view of cumulative exposure even from the point of view of providing pro-
tection to interstate carriers. Secondly, should an introductory statement
with respect to the non-enforceability of chemical and physical limits be in-
cluded in the standards. §5.212 will clearly not be attempting to regulate
without authority.
§5.215 -- Necessary action <
This section represents an improvement over the 1962 standards with respect
to chemical and physical limits. Those standards spoke in terms of "rejecting"
water supply whereas, in view of the absence of statutory authority, the pre-
sent draft requires prompt evaluation by the "appropriate authority", in the
event that chemical and physical quality limits are exceeded. I assume "appro-
priate authority" is intended to refer to the local water supply authority. How-
ever, the term is not defined either in §5.215 or the definition section (§1).
To avoid confusion I believe some definition should be included in one of these
two places.
§§5.226, 5.227, 5.2210, 5.2211, 5.2213, 5.2216, 5.2222
and 5.2224 -- Esthetic limits
As discussed above, the problem of lack of statutory authority to set esthetic
limits, can be lessened by inclusion of the recommended explanatory language
in §§1.72, 4.231 and 5.213. If those sections are modified to more explicitly
establish relationship between esthetic limits and indirectly related health
hazards, the esthetic-related chemical and physical limits do not require much
further comment. However, I think these particular limits could also be re-
viewed to see whether the health hazard concept could be worked into some of
the language of those limits. Statements might be eliminated which confess
that there is no direct connection between the esthetic limits and the safety of
the water. For example, the first sentence of §5. 226 relating to color states:
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"Although the intensity of color does not directly measure
the safety of the water, it is related to consumer acceptance
of the water."
This sentence could be redrafted as follows:
"The intensity of color provides an indirect measure of safety
of the water and the water supply system because it is related
to consumer acceptance of the water and the overall treatment
provided by the water supply system."
Similarly, looking at the copper limit (§5.227), the fourth sentence of that
section might be amended to delete the phrase "rather than a health hazard"so
that the sentence would simply state:
"This limit, however, is based on undesirable taste."
Another example would be the iron limit (§5.2211) which presently states
that the amount of iron permitted in water by the limit "does not have toxi-
cologic significance."
§§5.2217, 5.220 -- Explanations of bases for each limit
These two sections of the chemical and physical limits, like all the others
set forth a brief explanation of the reason each limit has been included and
how the particular limit figure was, derived. These explanations are brief
versions of the sort of explanations that have been previously confined to an
appendix to the drinking water standards. I will not attempt to make a deter-
mination as to whether any explanation for the limit should be contained in the
. regulations or not. However, if this is to be done, I believe statements ex-
pressing doubt as to validity of a particular limit figure should be minimized
in order to avoid unnecessarily facilitating an attack upon the validity of the
regulation. Of course, here once again, this concern is made more or less
important according to whether the chemical-physical limits are presented as
enforceable mandates or simply as recommendations to water supply operators
and regulators.
An example of the problem is contained in §5. 2217 (Organics-Carbon Adsorb-
able) which states that "although the toxicological nature of these materials
has not been precisely defined to date, and the analytical technique is not the
most desirable, these materials should be limited to the lowest attainable
level." The same problem arises in §5.2220 (Silver) which states that the
"amounts of colloidal silver required to produce this condition (argyria,
argyrosis), and which would serve as a basis for determining the water stand-
ard is not known. . .. "
While these statements are perfectly proper, perhaps they should be contained
in an appendix rather than the standard itself since the appendix can usually
provide a relatively complete explanation of the factors going into the limit-
setting decision. In that way a statement of doubt is less naked and the basis
for the limits set can be more adequately stated.
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§5.221 -- Sodium
This section contains a few specific references which indicate quite clearly
the intent to prescribe a limit for the purposes of the local populace rather
than the transient user. Reference is made to "home-water softeners of con-
ditioners" and also to the necessity of water utilities distributing water con-
taining more than 20 mg per liter of sodium to inform "physicians practicing
in their service area" of this fact so that the level of sodium "may be con-
sidered in prescribing diets" (page 41 of the draft). In addition, the limit
set is obviously unrelated to any acutely toxic level (if there is one). This
problem has been discussed above in connection with section 5.212. Again,
I do not think there is any necessity to make substantial changes in the limits
themselves provided that some introductory language is added to the standards
which makes it somewhat more obvious that they do not purport to establish
enforceable regulations in connection either with non-communicable health pro-
blems or water usage by the non-transient population.
§5.3 -- Radiological quality
Of course, this section raises many of the same problems that have been
discussed in the chemical and physical standards and those considerations
will not be repeated.
As now drafted sections 5. 314 and 5. 325 state that if a water supply does not
meet the radiological standards provided than it shall not be certified. How-
ever, as long as the legal status of these standards is comparable to the
chemical and physical standards, then a section similar to section 5.215
(Necessary Action) in the chemical and physical limits might be properly
worked into the radiological section. Section 5.215, as noted above, requires
prompt evaluation by the appropriate authority rather than outright rejection
of the water supply if it fails to meet the limits.
Two terms are used throughout section 5. 3 which could use definition. The
first of these is "control measures". This term is used in §§5.312, 5.322,
5.323 and 5.324 in connection with the "stepped" regulation of increasing
levels of radiation found in the water. Once a given level is reached the water
can be only "provisionally" certified and then only "with control measures",
whereas at a lower level of radiation the water can be so certified "without
control measures". However, even at lower levels "sampling and analytical
measures" are required, implying some sort of periodic review. Thus, the
presence or absence of periodic review does not seem to be the distinction
intended by the use of the term "with" or "without control measures". Not
having a technological background I may be missing the boat here. However,
I raise the question anyway and suggest that some definition may be appro-
priate.
The second term which I find confusing is "provisionally certified". Since
I assume that even a "full" certification provides for some ongoing review or
reporting requirements, and the possibility of revocation should the limits
be exceeded, I do not see what is added by the word "provisionally". Perhaps
therefore some further explanation or definition of this term is also necessary.
§§§§§§§
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OIL AND HAZARDOUS SUBSTANCES
TITLE: Outer Continental Shelf; Applicability of FWPCA
DATE: August 3, 1973
The Geological Survey is interested in determining whether EPA has juris-
diction over discharges from drilling rigs operating on the outer continental
shelf pursuant to the provisions of the Outer Continental Shelf Lands Act. At
a meeting between USGS and interested EPA representatives on August 3,
1973, I expressed my opinion that it does, although the meeting was prefaced
with a disclaimer onEPA's part that our opinions did not yet bear the impri-
matur of our senior officials. This memorandum is my initial step towards
obtaining such an imprimatur from OEGC.
Section 301 of FWPCA prohibits the discharge of any pollutant, except as in
compliance with certain enumerated sections of the statute. Section 502(12)
defines "discharge of a pollutant" as
"(A) any addition of any pollutant to navigable waters from
any point source, (B) any addition of any pollutant to the
waters of the contiguous zone or the ocean from any point
source other than a vessel or other floating craft. "
(Emphasis added.)
Assuming for the moment that an offshore drilling platform is not a "vessel
or other floating craft", it clearly engages in discharges of pollutants to ocean
waters within the meaning of section 502(12), even when it is outside the ter-
ritorial sea and the contiguous zone.
Any ambiguity in section 502(12) arises from the fact that it is, on its face,
impermissibly broad as a matter of international law: surely the Congress has
no authority, nor did it intend, to prohibit discharges anywhere in the world's
oceans by any person. I believe it is clear, therefore, that any judge would
seek to limit the combined effect of sections 301 and 502(12). But whatever the
scope of those limitations, I do not believe he would feel free to exclude dis-
charges from a drilling rig on the outer continental shelf.
The OCSLA provides, in 43 U.S.C. §1333(a)(l) that
"The Constitution and laws and civil and political jurisdiction
of the United States are extended to the subsoil and seabed of
the outer continental shelf and to all artificial islands and
fixed structures which may be erected thereon for the pur-
pose of exploring for, developing, removing, and transport-
ing resources therefrom, to the same extent as if the outer
continental shelf were an area of exclusive federal jurisdic-
tion located within a state . . .. "
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I believe the blanket assertion of jurisdiction in the FWPCA with respect to
ocean waters, coupled with the notion in the OCSLA that an artificial island
or fixed structure on the outer continental shelf is, in contemplation of law,
tantamount to an area of exclusive federal jurisdiction located within a state,
leads to the conclusion that EPA has jurisdiction to issue permits under sec-
tion 402 of the FWPCA for the discharge of pollutants from such structures,
even if they lie seaward of the territorial sea and contiguous zone.
§§§§§§§
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CONTROL OF OIL POLLUTION
TITLE: State May Impose it's Own Sanctions Against Discharge
of Oil into Waters Situated within its State
DATE: May 11, 1971
Honorable C. W. Bill Young
House of Representatives
Washington, D. C. 20515
Dear Congressman Young:
This is in reply to a verbal request as communicated by Mr. Richard Nellius
of the office of the Honorable C. W. Bill Young on May 5, 1971 for our
interpretation of Section 11 of the Federal Water Pollution Control Act as
amended by Section 102 of the Water Quality Improvement Act of 1970, 33
U.S.C. 1161, relating to the control of pollution by oil.
Specifically, you request confirmation of your understanding that the fore-
going section does not operate to preempt a state from imposing its own sanc-
tion against the discharge of oil into any waters situated within a state. Please
be advised that your understanding of Section 11 is correct as evidenced by
subsection (o)(2) of 33 U.S.C. 1161 which provides as follows:
"Nothing in this section shall be construed as preempting
any State or political subdivision thereof from imposing
any requirement or liability with respect to the discharge
of oil into any waters within such State."
Conference Report No. 91-940 of March 24, 1970 which accompanied H.R.
4148 (later enacted as the Water Quality Improvement Act of 1970) provides
the following explanation (?t page 42) of congressional intent as regards the
foregoing provision:
"Paragraph (2) of subsection (o) disclaims any intention
of preempting any State or political subdivision from im-
posing any requirement or liability with respect to the
discharge of oil into waters in that State. Thus, any State
would be free to provide requirements and penalties sim-
ilar to those imposed by this section or additional re-
quirements and penalties. These, however, would be
separate and independent from those imposed by this sec-
tion and would be enforced by the States through its
courts." (emphasis supplied)
§§§§§§§
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TITLE: Control of Pollution from Offshore Facilities
DATE: March 17, 1971
QUESTIONS
You have asked (1) whether the Administrator legally may sign the MOU as
presently drafted; (2) for an analysis of the MOU as presently drafted; and-
(3) for comments on Commissioner Dominick's question regarding a possible
overlap of authority between EPA and the Coast Guard under Section 11 of
the FWPCAand the National Contingency Plan, on the one hand, and the USGS
under the OCS Act and regulations, on the other.
ANSWERS
1. The Administrator legally may sign the MOU as presently drafted.
2. We have analyzed all provisions of the present draft of the MOU, and
they are legally acceptable. Our comments follow.
3. A duplication of authority exists with respect to spills within the contigu-
ous zone: under Section 11 of the FWPCA and the National Contingency Plan,
the Coast Guard has authority to direct removal of spills in this zone; while
USGS also has this authority under the OSC regulations, since this zone is
part of the Outer Continental shelf. In addition, the National Contingency Plan
gives authority to the Coast Guard to remove spills beyond the contiguous
zone which threaten waters within it or the shoreline; for such spills, a dupli-
cation of authority also exists between the Coast Guard and USGS.
No duplication of authority exists regarding authority to prescribe spill pre-
vention equipment for offshore facilities. EPA has this authority with respect
to facilities within the boundaries of the States; USGS has this authority with
respect to facilities seaward of these boundaries, including facilities within
the contiguous zone.
The MOU might be used to resolve any questions that might arise in connec-
tion with this overlap of authority. However, if the MOU were to cover this
point, DOT would have to be made a party in order to commit the Coast Guard.
DISCUSSION
1. Analysis of Present Draft of MOU, and Discussion of Legal Basis.
Section 1 of the draft simply provides that EPA will assist Interior in pre-
paring environmental impact statements on OCS oil and gas lease sales. This
is in accord with the obligation of Interior under Section 102(2)(C) of the
National Environmental Policy Act to consult with appropriate Federal agen-
cies regarding environmental impact.
Section 2 provides that EPA and Interior will jointly develop a reliability
analysis procedure for pollution control safety devices to be incorporated in
their respective regulations; and will undertake reliability analysis studies.
OCS lessees will be required to submit reliability analysis reports jointly to
Interior and EPA. Section 3 provides that in order to achieve compatibility
between their respective regulations governing offshore facilities, EPA will
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advise Interior with respect to procedures and requirements to be incorpo-
rated in Interior's regulations, while Interior will advise EPA with respect
to the operation of off shore facilities. There is adequate legal basis for these
provisions. EPA has jurisdiction under Sectionll(j)(l)(C) to promulgate regu-
lations for pollution control equipment on offshore facilities, while Interior
has this authority under Section 5(a) of the OCS Act. (43 U. S.C. 1334(a))
There is no legal reason why the two agencies cannot consult with each other
while exercising this authority. We would suggest, however, that the appar-
ent purpose of Sections 2 and 3 be made more explicit; i. e., that the agencies
agree that they will attempt, as nearly as practicable, to agree on a uniform"
set of regulations for pollution control equipment on offshore facilities. TF
would seem that the pollution control regulations governing ^offshore facili tie s
should not differ according to whether the facility is located within or without
the State's boundary, simply because a different agency has jurisdiction,
unless there is a technical basis for differing requirements. The agencies
ought to attempt to eliminate any differences that do not have some such tech-
nical basis.
Section 4 of the draft MOU provides that EPA will furnish Interior with tech-
nical advice and assistance in connection with any action taken by Interior
under the OCS regulations in case of a spill on the Outer Continental Shelf,
and EPA's costs in this connection will be borne by the lessee. This pro-
vision accords with the present OCS regulations, which provide that where
the lessee fails to control and remove the pollutant, USGS may do so "in
cooperation with other appropriate agencies of the Federal, State and local
governments * * * in accordance with any established contingency plan for
combating oil spills or by other means at the cost of the lessee. " 30 C. F. R.
250.43.
Section 5 also provides that EPA will survey the damage caused by a pol-
lution incident on the Outer Continental Shelf, and that its costs for the sur-
vey will be assessed on the lessee. There could be some controversy as
to whether the cost of- making a damage survey is covered by the present
OCS regulation, which makes the lessee assessable only for the cost of "the
control and removal of the pollutant." 30 C.F.R. 250.43(b). However,
Section 5 of the draft MOU commits Interior to make appropriate changes in
its regulations to reflect the cost assessment. And there can be no challenge
to the authority of Interior to make such changes, in view of its broad author-
ity to promulgate regulations under Section 5(a) of the OCS Act. 43 U.S. C.
1334(a).
Section 5 of the draft MOU also provides that any damage survey made by
EPA maybe made available by EPA in litigation. This provision is probably
unnecessary, since the damage surveys would be subject to subpoena in any
event and would also be subject to disclosure under the Public Information
Act. J_/ However, there canbe noharm in including the provision in the MOU.
_!/ The exemption in the Public Information Act for internal government
memoranda, (5 U. S. C. 552(b)(5)), has been held to apply only to memoranda
of policy advice and recommendation -a description which would not fit a
damage survey. Ackerly v. Ley. 420 F. 2d 1336, 1340-41 (C.A.D. C. 1969);
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Section 6 of the draft MOU commits the USGS to comply with Coast Guard
requirements under the national and regional contingency plans and Coast
Guard regulations regarding methods of control and use of dispersants. This
presents no problems. Under its regulations, USGS has authority to remove
oil "in accordance with any established contingency plan for combating oil
spills or by other means. " 30 C. F. R. 250. 43. Thus USGS clearly can com-
mit itself to follow Coast Guard regulations and the national and regional
plans.
Section 7 of the draft MOU commits the agencies to establish communications
at regional and headquarters levels to expedite implementation of the MOU.
Section 8 provides for possible future extension of the MOU to cover pol-
lution problems caused by other mineral extractive activities. Neither sec-
tion presents any problems.
2. Overlap of Authority between EPA/Coast Guard and USGS.
A. Responsibilities of USGS under PCS Act and Regulations.
The basic authority of the Secretary of the Interior under the Outer Con-
tinental Shelf Lands Act is vested by Section 8(a), which authorizes the
Secretary "to grant to the highest responsible qualified bidder by compet-
itive bidding under regulations promulgated in advance, oil and gas leases
on submerged lands of the Outer Continental Shelf." 43 U. S. C. 1337(a). Sec-
tion 5(a) directs the Secretary to "administer" the provisions of this sub-
chapter relating to the leasing of the Outer Continental Shelf" and to "pre-
scribe such rules and regulations as may be necessary to carry out such
provisions." 43 U. S. C. 1334(a). The Secretary is also given authority to
'prescribe and amend such rules and regulations as he determines to be
necessary and proper in order to provide for the prevention of waste and
conservation of the natural resources of the Outer Continental Shelf. " Ibid.
Thus the extent of the Secretary's jurisdiction is the leases on the Outer
Continental Shelf. The Act defines the Outer Continental Shelf as "all sub-
merged lands lying seaward and outside of the area of lands beneath navi-
gable waters" to the extent that these submerged lands are subject to the
jurisdiction and control of the United States. 43 U. S.C. 1331(a). The phrase
lands beneath navigable waters" is in turn defined, in the case of tidal waters
as extending out to three miles from the coast line and out to the boundary
line of the State where it extends seaward beyond three miles. 43 U. S. C
1301(a).
IJ (continued from previous page)
General Services Administration v. Benson, 415 F. 2d878(C.A. 9, 1969);
Consumers Union v. Veterans Administration, 301 F. Supp. 796, 805 (S.D.
JN.Y. 1969). The same test governs the question of whether the internal
memorandum is subject to subpoena; a factual survey may be subpoenaed.
See Carl Zeiss Stiftung v. V.E.B. Carl Zeiss Jena. 40F.R.D. 318 C.D.
B.C. 1966), affid. 384F.2d 979 (C.A.D.C. 1968), cert, denied 389 U.S.
952; Freeman v. Seligson, 405 F. 2d 1336, 1339 (C.A.D.C. 1968).
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Under the OGS regulations, lessees on the Outer Continental Shelf are re-
quired to comply with orders of the supervisor (who is under direction of
the USGS). 30 C.F.R. 250.11, 250.12(a). In addition, if "the waters of
the sea are polluted by the drilling or production operations" of the lessee,
the supervisor has the right, where the lessee fails to control or remove
the pollutant, "to accomplish the control and removal of the pollutant in
accordance with any established contingency plan for combating oil spills or
by other means at the cost of the lessee. " This is to be done "in coopera-
tion with other appropriate agencies of the Federal, State and local govern-
ments, or in cooperation with the lessee, or both." 30 C.F.R. 250.43(b).
In short, the jurisdiction of the USGS, as it administers supervisors of OGS
leases, is over the operations of lessees on the Outer Continental Shelf, and"
over the cleanup of oil spills caused by such operations. The Outer Conti-'
nental Shelf extends seaward of the boundaries of the States.
B. Responsibilities of EPA and the Coast Guard under Section 11 of FWPCA
and the National Contingency Plan.
Section ll(c)(l) of the Federal Water Pollution Control Act gives the President
authority to act to remove oil which is "discharged, into or upon the navi-
gable waters of the United States, adjoining shorelines, or into or upon the
waters of the contiguous zone* * *. " Section ll(c) directs the President to
implement his authority to remove discharged oil by publishing a National
Contingency Plan. This has been done by the CEQ, pursuant to delegation.
The plan established procedures for removing oil spills "for all United States
waters, shoreface, or shelf bottom. " Section 103.1. The Coast Guard has
the responsibility of providing on-scene Commanders to direct removal oper-
ations. Section 306. 2.
The President also has authority, which has been delegated to EPA, under
Section 11 (j)(l) of the FWPCA to prescribe regulations for "equipment to
prevent discharges of oil* * *from* * *offshore facilities* * *. " "Offshore
facilities" are defined as facilities located in "any of the navigable waters
of the United States." Section 11 (a)(10), (11). The term "navigable waters
of the United States" is not defined, but the legislative history makes it clear
that "offshore facilities" are limited to facilities in waters within the bound-
aries of the States. 2/
In short, the Coast Guard has authority under Section 11 of the FWPCA to re-
move oil spills in the navigable waters of the United States (i.e., out to the
boundaries of the States) and in the contiguous zone. EPA has the authority to
require spill prevention equipment on facilities within the States' boundariesT.
2y The Conference Report on the Water Quality Improvement Act of 1970
states (Conf. Kept. No. 91-40, 91st Cong. 2dSess., at p. 37):
"The definition of 'offshore facility' means any facility of any kind
located in, on, or under any of the navigable waters of the United States
other than a vessel or public vessel. This would include offshore drilling
rigs as well as all other States which, in the case of coastal waters
would extend to the seaward boundaries of the States within the meaning
of the Submerged Lands Act. "
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C. Overlap of authority
There is no overlap of authority with respect to the prescribing of spill pre-
vention equipment on offshore facilities. EPA has the authority within tEe"
States' boundaries, while USGShas the authority seaward of the boundariesT
There is, however, overlap with respect to the cleanup oi' oil spills. Under
Section 11 of the FWPCA the Coast Guard has the authority to direct cleanup
for any spill in the contiguous zone (i.e. seaward of the States' boundaries
to a line 12 miles out), while USGS also has this authority under 30 CFR.
250.43 for any spill on the Outer Continental Shelf seaward of the States'
boundaries (including spills in the contiguous zone). This overlap is extended
by Section 103.1 of the National Contingency Plan, which asserts authority
on the part of the Coast Guard over any spill seaward of the contiguous zone
"where there exists a threat to United States waters, shoreface, or shelf
bottom."
D. Recommendation
The Memorandum of Understanding could be utilized to delineate the areas
of responsibility with respect to spills in the contiguous zone and spills be-
yond this zone which threaten waters within it or the shoreline. One possible
resolution of the problem would be for USGS to agree to accept direction
from the Coast Guard On-Scene Commander under the National Contingency
Plan for any spill occurring in the contiguous zone. This would include spe-
cifically USGS's agreement to join in any order which the On-Scene Com-
mander may wish to issue to operators of offshore facilities involved (so
that these operators cannot claim any fear of receiving conflicting orders).
With respect to spills occurring seaward of the contiguous zone but which
are believed to threaten waters within it or the shoreline (so that the National
Contingency Plan would apply), the Coast Guard might agree by the Memoran-
dum of Understanding to accept direction from the USGS. There are two
reasons for agreeing to the authority of USGS in this area: (1) The statu-
tory basis for the extension of authority asserted in the National Contingency
Plan over spills beyond the contiguous zone which threaten waters within
it or the shoreline is not clear;3y and (2) even conceding the validity of this
extension of authority, the operator of the facility in particular cases may
wish to contest whether the requisite threat to the contiguous zone or the
shoreline exists as a factual matter. If the Memorandum of Understanding
covers these matters, the Coast Guard should be committed, and conse-
quently DOT would have to be a party.
3/The authority to remove spills under Section ll(c)(l) extends to oil "dis-
charged, into or upon the navigable waters of the United States, adjoining
shorelines, or into or upon the waters of the contiguous zone. " In the case
of a spill which occurs beyond the contiguous zone but which spreads into it
or threatens to spread into it, the question would be whether this was a dis-
charge "into or upon the waters of the contiguous zone. "
§§§§§§§
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TITLE: OH Sheen and Equipment Regulations
DATE: August 19, 1971
This is in response to your note of August 13, 1971.
1. You have inquired as to the correctness of Mr. Biglane's position that
the regulations should provide that an operator who obtains an equipment
certification should thereby also obtain a "variance" from the prohibition
against discharging oil in such quantity that it forms a sheen. For the rea-
sons that follow I believe that no such variance need be or should be provided.
As written by us, and as submitted to the Administrator, the draft regula-
tion did amend Section 610. 5 of 18 CFR to provide that the sheen test 'Tdoes
not apply to discharges from offshore or onshore facilities when such facil-
ities are in compliance with the requirements of Part 611 [the draft oil equip-
ment regulations]." We provided this exclusion because, as Mr. Biglane
notes, the state of the art is such that even the best feasible treatment can-
not always assure that no sheen will be produced by the treated discharge.
We felt that those operators with certified equipment should not have to worry
if they produced an occasional sheen beyond their control.
At the briefing, Mr. Ruckelshaus said that he was extremely reluctant to
allow any semblance that he was backing off from the sheen test. Therefore,
he disapproved of the specific exemption from the sheen test that we had
provided for operators with certified equipment, and said that this was one
reason why he wished more study before he would act on this problem. I
then suggested that this aspect of the problem might be solved merely by
publishing the regulations without a specific provision that operators of cer-
tified equipment would be excused from the sheen test, while achieving that
result by the use of discretion in choosing whom to sue. The word could be
passed to the operators that, as a practical matter, those with properly oper-
ating certified equipment would not be sued for violations of the sheen test
beyond their control. Mr. Ruckelshaus said that this suggestion had some
merit and was worth study.
Mr. Biglane's objection to the suggestion that we can do without an explicit
"variance" provision is unfounded. He is worried that without such a pro-
vision an operator of equipment certified by EPA to be the best feasible
might nonetheless be sued if his discharge accidentally produced a sheen.
But obviously we would never recommend an action for violation of the sheen
regulation in such circumstances. Moreover, any halfway decent oil com-
pany lawyer could appreciate that. Mr. Biglane correctly notes that the
Coast Guard rather than EPA enforces the sheen regulations under Section
ll(b)(5). I am sure, however, that we can arrive at an understanding with
the Coast Guard that it will not assess penalties under Section ll(b)(5) when
there is a discharge from a rig which we have certified as having the best
feasible treatment equipment and which has been properly operated according
to procedures we have approved.
I think that Mr. Biglane's suggested remedy that, for example, we explicitly
tell an operator that he may produce, say, three sheens per month, would
require us to take precisely the unacceptable and misleading public position
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rejected by the Administrator, and would not really provide a suitable solu-
tion to the problem. This is because the occasional production of a sheen,
even with the best equipment, frequently comes about because of natural
conditions, such as extreme calm or a high background presence of oil in the
receiving water. Such caprices of nature are beyond an operator's control,
and it is senseless to say that he is to be allowed to be visited by, say, three
of them per month.
2. As you might expect, I regard Mr. Zener's suggestion that the regula-
tions be published under the authority of Section ll(j)(l)(C) to be sound.
At the briefing, Mr. Biglane told Mr. Ruckelshaus that of the 500 drilling
rigs in Louisiana waters at whom these regulations would primarily be aimed,
400 already had good treatment equipment. Mr. Ruckelshaus then questioned
why this entire regulatory scheme was needed when a few Refuse Act actions
against the recalcitrant operators might clear the whole thing up.
This was a good question, and unfortunately neither Bob nor I saw the answer
to it at the time. The answer is that the Refuse Act is now irretrievably
tied to the permit program, and that a discharger can stave off an unvar-
nished Refuse Act lawsuit by applying for a permit. Thus the hundred non-
treating operators, along with the 400 supposed good guys, would end up
filing permit applications. The work required in processing those would be
substantially identical to that which we would have to perform in administer-
ing the proposed equipment regulations under Section ll(j)(l)(C). Therefore
it is quite unlikely that the Administrator's suggestion of use of the Refuse
Act would end up saving much for EPA.
For this reason the alternatives discussed by Mr. Zener's memorandum are
Section ll(j)(l)(C) and the permit program. Between the two, I believe 11 (j)
(1)(C) to be much superior. You are acquainted with the presence of pitfalls
of several descriptions in the permit program. Moreover, Section ll(j)(2)
provides EPA a stiff administrative penalty of up to $5, 000 per violation
for violation of equipment regulations. This is vastly superior in my view
to the much more cumbersome injunctive and criminal remedies available
for violation of a permit.
Another difficulty with the permit program is that offshore oil producers are
asserting that they are not subject to the Refuse Act because they are not a
"wharf, manufacturing establishment, or mill of any kind" within the meaning
of Section 13. While this claim borders on the frivolous, you can never tell
what a judge in the Easter District of Louisiana is going to say, especially
concerning that industry, and therefore our authority under the Refuse Act
may not be definitely settled for another year or two. Our authority under
Section ll(j)(l)(C) is unquestionable.
3. There was no surname copy of the draft regulations as such, but there
was a draft memorandum from Mr. Mosiman to the Administrator recom-
mending that he approve the regulations; this memo was surnamed by me,
Mr. Zener, and Mr. Biglane.
§§§§§§§
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TITLE: Oil Removal Authority
DATE: October 11, 1972
Rear Admiral W. L. Morrison
Chief Counsel
United States Coast Guard
400 Seventh Street, S. W.
Washington, D. C. 20590
Dear Admiral Morrison:
I have your letter of September 26, 1972, asking for our views on the question of
whether federal agencies may conduct oil removal activities on waters which are
not navigable waters of the United States, and obtain reimbursement from the
revolving fund established under section ll(k) of the Federal Water Pollution
Control Act. I agree with the conclusion presented in the staff analysis en-
closed with your letter, to the effect that such removal is authorized, where re-
moval of oil from non-navigable waters is necessary to prevent the oil from
reaching the navigable waters of the United States. <•
I would like to suggest one further argument, in addition to the considerations
set forth in your staff analysis, which would support this conclusion. We think
that a person who discharged oil into non-navigable waters could be sued by the
federal government for an injunction directing removal, where it could be shown
that removal was necessary to prevent the oil from reaching the navigable waters
of the United States. While such a remedy may not be explicitly authorized
by either the Refuse Act or by section 11 of the FWPCA (except in the circum-
stances outlined in sections 11 (d) and (e)), the federal courts have exhibited a
willingness to go beyond the specific terms of federal anti-pollution statutes
in order to fashion effective remedies in this area. Cf. United States v. Republic
Steel Corp., 362 U.S. 482; Illinois v. Milwaukee, 4 ERG 1001 (U. S. Sup. Ct.
1972). And if injunctive relief would be available against the discharger to
prevent the oil from reaching the navigable waters of the United States, the
federal government could require the discharger to reimburse it for the costs
of removal where the discharger has refused to clean up and where a federal
court order could not be obtained in time to prevent damage to the navigable
waters. See Wyandotte Transportation Co. v. United States, 389 U.S. 191;
and United States v. Perma Paving Co., 332 F. 2d T54 (2d Cir. 1964). Finally,
even if reimbursement for the federal removal were obtained as a judicially-
fashioned remedy to protect the federal interest established by the Refuse Act
and section 11 of the FWPCA, rather than as an explicit statutory remedy, we
think that the relationship of the remedy to section 11 would be sufficiently close
to permit use of the revolving fund to finance the removal, and to permit the
proceeds of the recovery from the discharger to be deposited in the revolving
fund.
§§§§§§§
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OCEAN DUMPING AND MARINE SEWAGE
TITLE: Request for Ocean Dumping Permit
DATE: May 28, 1971
The American Cyanamid Company has asked EPA to grant a "clearance"
to allow it to dump wastes from its Savannah, Georgia plant in the ocean
past the continental shelf. Apparently American Cyanamid's position is that
we should consider their request even though there is presently no law giving
the Administrator the power to grant it, and legislation concerning ocean
dumping is now pending in Congress. I believe that we should refuse to con-
sider American Cyanamid's request, for the reasons which follow, and have
accordingly drafted the attached letter for your signature.
1. The most obvious reason why EPA should not act upon American Cyana-
mid1 s request is that we have no power to do so. No law gives us the right
either to prohibit or to put EPA's imprimatur on ocean dumping (except for
,oil and hazardous substances within the contiguous zone and the control exer-
cised through leases for oil drilling on the continental shelf, all irrelevant
here since American Cyanamid proposes to dump 85 miles out, past the con-
tinental shelf and well past the contiguous zone). Since EPA, like other
federal agencies, has only the powers given it by Congress, we can do
nothing. Therefore we should do nothing.
2. Moreover, apart from the question of what we can do, we should not
make any public evaluation of American Cyanamid1 s request. Congress is
presently considering in committee the Administration's proposed Marine
Protection Act of 1971. As submitted, section 4 of that proposed act would
prohibit ocean dumping of the sort proposed by American Cyanamid without
a permit from the Administrator. However, we cannot be sure of whether,
and in what form, the bill will emerge from committee and from the Congress
itself. If EPA started to administer the proposed bill as if it were law in
its present form (or, indeed, in any form), we would certainly risk the tre-
mendous wrath of Congress for intrusion upon its authority to make law.
Moreover, if we were to grant American Cyanamid's request on any terms
we would be subject, deservedly or not, to the public criticism that EPA is
so anxious to permit ocean dumping of pollutants that we are willing to
license the practice even before Congress has given us the power to do so.
Finally, the file contains Mr. Dominick's recommendation against granting
a permit for ocean dumping to American Cyanamid. In so recommending,
he stated that American Cyanamid had not fully explored possible alterna-
tives to ocean dumping, some of which seemed promising to EPA technical
personnel. Thus, American Cyanamid1 s submission on the merits is hardly
compelling.
§§§§§§§
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TITLE: EPA Jurisdiction with Respect to Floating Nuclear Power Plants
DATE: August 27, 1973
Mr. A. Giambusso
Deputy Director for Reactor Projects
Division of Licensing
U. S. Atomic Energy Commission
Washington, D. C. 20545
Dear Mr. Giambusso:
At the August 6, 1973, meeting of the Interagency Regulatory Steering Com-
mittee for floating nuclear power plants, we were asked to submit a written
inventory of the regulatory, consultative and review functions EPA would
apparently exercise with respect to floating nuclear power plants.
Although the extent of our jurisdiction is in some respects unclear, or de-
pendent upon the location of the floating facility, we believe the following
items prepared by Mr. R. McManus of our Office of Enforcement and General
Counsel are responsive to your request:
1. Discharge permits. Section 301 of the Federal Water Pollution Control
Act (FWPCA) prohibits discharges, without a permit, of pollutants into the
territorial sea from any point source. By virtue of the definition in Sec.
502(12), however, this prohibition applies outside the territorial sea only
to point sources other than vessels and other floating craft. Thus, if a
floating facility is deemed not to be "floating craft," it would require a sec.
402 permit in any case; and, if it is deemed to be a "floating craft," it may
be that its operating discharges would constitute ocean dumping within the
purview of the Marine Protection, Research and Sanctuaries Act, P. L. 92-
532. Permits under the FWPCA would be issued in accordance with the
procedures in Part 125, Title 40, CFR, unless, of course, the facility is
located within the territorial waters of a state that has an approved permit
program under Sec. 402 of FWPCA, in which case the state's procedures
would be applicable; in any case, the state procedures would have to conform
with the guidelines set forth in Part 124 of Title 40.
2. Construction. If a breakwater were constructed inside the territorial
sea, the ocean dumping act would appear inapplicable, by virtue of the fact
that the Corps of Engineers' jurisdiction under Sec. 10 of the Rivers and
Harbers Act of 1899 would trigger the exclusion from the definition of dump-
ing in Sec. 3(f) of the Act. But, if such construction occurred outside the
three-mile limit, an ocean dumping permit would be required. Applicable
procedures are set forth in Part 222 of Title 40.
3. Thermal Discharges. Operating discharges of heated effluents permitted
under FWPCA, whether by EPA or a state, would be subject to the effluent
guidelines established under Sec. 304, unless the permittee wished to in-
voke the "variance" procedures of Sec. 316 --a likely option, in view of the
presumed resistance of off-shore ocean waters to thermal pollution. Pro-
cedures have not yet been established under Sec. 316.
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4. State Certification. Prior to the issuance of any permit (including ap-
plicable AEC permits) "which may result in any discharge into the navigable
waters, " Sec. 401 of FWPCA would require certification from any state in
whose territorial sea the discharge originates, to the effect that the dis-
charge will comply with applicable provisions of Sections 301, 302, 306 and
307 of FWPCA. (It appears possible that the certifying agency would have
to consider whether applicable state water quality standards would be vio-
lated by the discharge in question.) If no state agency has been designated
in accordance with Sec. 401, EPA would act in lieu of a state agency,
in accordance with procedures set forth in Part 115 of Title 40 (which is
presently undergoing revision).
5. Environmental Radiation Standards. Reorganization Plan No. 3 trans-
ferred the functions of the Atomic Energy Commission to the Environmental
Protection Agency ". . . to the extent that such functions of the Commis-
sion consist of establishing generally applicable environmental standards for
the protection of the general environment from radioactive material. As
used herein, standards mean limits on radiation exposures or levels, or
concentrations or quantities of radioactive material, in the general environ-
ment outside the boundaries of locations under the control of persons pos-
sessing or using radioactive material. " As a result of this transfer, Sec.
161 (b) of the Atomic Energy Act, P. L. 83-703, provides that the Adminis-
trator may, within the above framework, "establish by rule, regulation, or
order, such standards to govern the use of special nuclear material, source
material, and by-product material as (he) may deem necessary or desirable
to ... protect or to minimize changes of life or property. "
Section 274(h), P.L. 86-373, provides that "The (Federal Radiation) Council-
shall advise the President with respect to radiation matters, directly or
indirectly affecting health, including guidance for all Federal agencies in the
formulation of radiation standards and in the establishment and execution of
programs of cooperation with States. "
6. Environmental Impact Statements. EPA would, of course, be consulted
in connection with any statement prepared under Sec. 102(2)(C) of NEPA with
respect to a floating nuclear power plant.
Any of the above functions, of course, would have to be performed prior to
a discharge.
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VESSEL WASTE
VESSEL SEWAGE REGULATIONS UNDER THE FWPCA
TITLE: Federal Pre-emption of Marine Sanitation Device Standards
DATE: February 12, 1971
FACTS
Section 13(b)(l) of the Federal Water Pollution Control Act requires EPA to
promulgate Federal performance standards for marine sanitation devices on
vessels; and for DOT to promulgate design, construction, etc. standards
consistent therewith.
QUESTION
May the Federal government permit a State to impose stricter standards
than the Federal standards?
ANSWER
No. However, EPA may, under the limited conditions expressed in §13(f),
permit a State to impose an absolute prohibition upon discharges if expressed
in a particular water quality standard.
DISCUSSION
Section 13(f) provides for Federal preemption in the standards-setting area as
follows:
"(f) After the effective date ... no state . . . shall adopt
or enforce any statute or regulation of such State . . . with
respect to ... any . . . device . . . subject to ... this
section ..."
The foregoing pre-emption was considered necessary to avert conflicting
local standards and regulations which the Congress recognized as consti-
tuting "ahardshipto recreational boaters who move between States and poten-
tially serious restrictions on interstate movement of commercial vessels."!/
!_/ Page 12 of Senate Report No. 91-351, dated 8/7/69, of the Committee on
Public Works, on S. 7., a companion bill to H. R. 4148 which was enacted
into the Water Quality Improvement Act of 1970.
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However, the Congress also recognized that there exist prohibitions in water
quality standards against waste discharges in areas designated "for protec-
tion of public drinking water supplies, shellfish beds and areas designated
for body contact recreation. M2/
Consequently, authority was provided in the second sentence of subsection
(f) to permit no-discharge provisions of water quality standards to take ef-
fect under the following limitations:
1. Upon application by a State to EPA;
2. If the State's water quality standards contain a blanket no-discharge pro-
vision for the body of water in question.
3. Upon EPA's determination as to #2.
§§§§§§§
TITLE: Effective Date of No-Discharge Regulations
DATE: April 14, 1971
QUESTION
In the course of drafting the vessel sewage regulations, the question has
arisen as to when no-discharge regulations, issued under Section 13(f) upon
application of the States, may become effective.
CONCLUSION
The literal language of the statute would seem to allow us to make such a
regulation effective at any time. However, the context of the no-discharge
provision indicates that no-discharge regulations may not go into effect until
pre-emption has occurred -- i.e., until two years after promulgation of the
initial standards and regulations for new vessels, and five years after promul-
gation for existing vessels. Until pre-emption occurs, the States which de-
sire no-discharge requirements for any waters of the State may adopt and
enforce such requirements themselves, without Federal intervention. Ac-
cordingly, during this period, Federal no-discharge regulations issued upon
State application are not needed.
£/ Id at Pg. 13.
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DISCUSSION
The context of the no-discharge provision makes it clear that no-discharge
regulations may not go into effect until the initial standards and regulations
issued under 13(b)(l) go into effect. This is because the no-discharge pro-
vision was intended to alleviate the effects of pre-emption, and pre-emption
does not occur until the initial standards and regulations go into effect. Thus
the no-discharge provision immediately follows the pre-emption provision,
both occurring in the same subsection 13(f). And no-discharge regulations
may only be issued on application of the State involved; if pre-emption were
not in effect., the State could adopt the no-discharge requirement itself rather
than applying to the Federal Government. In addition, the legislative history
confirms that the no-discharge provision was intended to alleviate the effects
of pre-emption.
Both the Senate and House bills preserved the States' jurisdiction to com-
pletely prohibit discharges in particular waters, despite pre-emption. Clear-
ly, these provisions would have gone into effect only when pre-emption oc-
curred.^/ The Conference Committee substituted the present version, with-
out, however, indicating that there was any intent to change the effective
T7 The Senate bill read (S. 7, Sec. ll(f), as reported, Sen. Rep.
~ 91-351):
"(f) After the effective date of any standards and regula-
lations established pursuant to this section, no State or
political subdivision thereof shall adopt or enforce any
statute or regulation with respect to the design, manufac-
ture, installation, or use of any marine sanitation device
in connection with any vessel subject to the provisions of
this section, except that nothing in this subsection shall
restrict the authority of a State to prohibit the discharge
of sewage in any waters within a State where implemen-
tation of applicable water quality standards requires such
prohibition."
The House bill read (H.R. 4148, Sec. 18(f), as reported, H. R.
Rep. 91-127):
"(f) After the effective date of the initial standards and reg-
ulations promulgated under this section, no State or politi-
cal subdivision thereof shall adopt or enforce any statute
or regulation of such State or political subdivision with re-
spect to the design, manufacture, or installation of any
marine sanitation device on any vessel subject to the pro-
visions of this section, except that nothing in this section
shall be construed to affect or modify the authority or juris-
diction of any State to prohibit discharges of sewage whether
treated or not from a vessel within all or part of the in-
trastate waters of such State if discharges from all other
sources are likewise prohibited. "
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out, however, indicating that there was any intent to change the effective
date of the no-discharge provision. H. R. Rep. 91-940, 91st Cong. 2d Sess.
at 46, 47, 49. Senator Boggs' summary of the conference action makes it
clear that the final version was still intended to alleviate the effect of pre-
emption, and that the change was intended only to insert the Federal Govern-
ment into the procedure -- not to change the effective date:
"The major alteration from the Senate version appears in
subsection (f) of Section 13 of the new bill. The original
Senate version left to the States the determination on wheth-
er sewage discharges should be barred completely in spe-
cific areas within that State if the 'implementation of appli-
cable water quality standards requires such prohibition.1"
"The House version gave the States a right to bar sewage
discharge only in waters where all other discharges of sew-
age were prohibited. "
"The new proposed version wisely inserts the Secretary of
the Interior into this procedure. Under the compromise
version, a State may apply to the Secretary for the right
to prohibit discharges in a specified area. The Secretary
may then prohibit such discharges in the area if he finds
that compliance with applicable water quality standards re-
quires such a prohibition."
"This new language, I believe, preserves the intent of the
Senate version, leaving with the States the right to achieve
as full protection as possible in the areas of shellfish beds,
marinas, drinking water intakes, bathing beaches, and oth-
er areas that could be adversely affected by a discharge
from even the most highly treated vessel sewage. "
Cong. Rec. S 4422 (March 24, 1970).
§§§§§§ §
TITLE; The Size of No-Discharge Areas
DATE: June 24, 1971
The legislative history of 91-224 offers strong evidence that Congress in-
tended to limit the size of no-discharge areas for which the states could
apply. Specifically, Congress intended to limit no-discharge areas to areas
designated for public drinking water, shellfish beds, bathing beaches, and
other areas that require high water purity. Theoretically, a state could have
all its waters designated as a no-discharge area, but only_ upon showing that
water quality standards require such a prohibition.
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The first reason for this conclusion involves the Congressional intention
to pre-empt the field in the regulation of vessel sewage. (Expressed, for
example, on p. 12 of the Senate Committee Report). Although the pre-
emption was intended to provide uniform control over marine sanitation de-
vices (not no-discharge areas), the reason for this uniformity was to avoid
subjecting vessels travelling interstate to conflicting standards in meeting
sewage disposal criteria. If states were allowed to declare their entire
waterways as no discharge areas, then there would be no value in pre-
empting the marine sanitation devices field: states could easily avoid the
consequences and subject the interstate traveller to the inconsistencies that
13(f) was trying to avoid. Thus, the obvious intent of Congress to pre-empt
the field must serve to limit the area which states can have declared no-
discharge zones.
Second, two changes that were made in the bill in Conference reflect a
Congressional intendment that no-discharge areas be limited. The first
change is in 13(f). Prior to the Conference, both versions of the bill allowed
the individual states to declare "all or part" (in the House), or "any" (in the
Senate) intrastate waters no-discharge areas. The Conference Committee
made two changes. First, it required the States to apply to the Secretary
of the Interior in order to have a body of water be a no-discharge area.
And second, "all or part" and "any" was changed to read "those waters . . .
which are subject of the application and to which such standards apply. "
[Emphasis added] As explained by a statement by Senator Boggs, introduced
into the Congressional Record of 3/24/70 at p. S4422 by Senator Cooper:
"The major alteration of the Senate version appears in Sub-
section (f) of Section 13 of the new bill. The original Senate
version left to the States the determination of whether sew-
age discharges should be barred completely in specific ar-
eas within the State if the 'implementation of applicable wa-
ter quality standards requires such prohibition. '
The House version gave the States a right to bar sewage
discharge only in waters where all other discharges of sew-
age were prohibited.
The new proposed version wisely inserts the Secretary of
the Interior into this procedure. Under the compromise
version, a State may apply to the Secretary for the right
to prohibit discharges in that area if he finds that compli-
ance with applicable water quality standards requires such
a prohibition.
This new language, I believe, preserves the intent of the
Senate version, leaving with the States the right to achieve
as full protection as possible in the areas of shellfish beds,
marinas, drinking water intakes, bathing beaches, and other
areas that could be adversely affected by a discharge from
even the most highly treated vessel sewage. "
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Thus, by obviating the potential arbitrary and limitless discretion of the
states, and by restricting potential no-discharge areas to areas where water
quality standards require such a prohibition, the compromise bill that was
passed into law expressed the intent of Congress to limit the extent of state-
desired no-discharge areas to certain areas.
Finally, several statements made during the discussion of the bill point
to the intention to limit the size of no-discharge areas. The, most definitive
statement appears in the Senate Report of the Committee of Public Works
(p. 12):
"[The Committee is aware of the] necessity to relate any
sewage treatment control measure to existing water quality
programs. [Thus, the States have the authority to pro-
hibit any discharge] if a water quality standards plan for
implementation requires such restrictive measures. This
exception is not [p. 13] intended to be broadly construed.
A State cannot prohibit vessel waste discharges for all of
its rivers, and lakes and coastal waters unless the State
has in fact adopted standards which establish uses for all
of those waters which require such an absolute prohibition.
In effect, the Committee intends that any state prohibi-
tion apply only to areas designated for protection of public
drinking water supplies, shellfish beds, and areas desig-
nated for body contact recreation. " [emphasis added]
Senator Boggs at S 12040 in the Congressional Record:
"This means that if water quality at a specific location
would be degraded below applicable water quality standards
by a discharge, treated or otherwise, the state may pro-
hibit the discharge in that area to protect the lake, marina,
oyster bed, or municipal water intake location.
It should be emphasized further that the language permits
a discharge prohibition on!
standards require such a
a discharge prohibition only when 'applicable water quality
~- °' prohibition.'" [emphasis added]
There are more examples that reiterate the same point (e.g., Senator
Cooper, at S 12052): no-discharge areas were meant to be limited to those
areas where applicable water quality standards require such a prohibition,
particularly areas mentioned in the statements above. A larger no-discharge
area could be permitted only if a state could prove that its waters were vul-
nerable to falling below applicable water quality standards due to7 sewage
discharge from vessels.
§§§§§§§§§
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TITLE: Definition of Navigable Waters
DATE: December 9, 1971
The question has arisen as to the scope of the term "navigable waters of the
United States" as that term is used in Section 13 of the Federal Water Pol-
lution Control Act concerning marine sanitation devices. Final Section 13
regulations will be promulgated shortly. The precise question posed is wheth-
er state inland waters which are "navigable in fact but are not connected
by navigable water with another state are nevertheless within the "navigable
waters of the United States" if they are or might become part of an interstate
transportation system including rail and automotive links.
Such waters have never been held to be within the "navigable waters of the
United States", and the possibility of securing such a holding is remote.
Thus, under current authority I conclude there must be a water connection
between states, and Section 13 will not apply to inland lakes.
Other Statutory Applications of the Term "Navigable Waters of the United
States"
In addition to Section 13 of the FWPCA, the term "navigable waters of the
United States" is also used to define the scope of sections 10(a) (pollution
abatement), 11 (oil spills), 12 (hazardous substances), and 21(b)(state certi-
fication) of the FWPCA as well as section 13 of the Rivers and Harbors Act
of 1899. J7 The recently passed Senate amendment of the FWPCA (S. 2770)
includes, for the first time, a statutory definition of navigable waters:
1] Section 10(a) presents two peculiarities not found in the other provisions.
First, Section 10(a) states that pollution occurring in "interstate ctr navigable
waters" is subject to abatement. The section thus appears to literally cover
non-navigable waters if they "flow across or form a part of State boundaries"
[FWPCA §23(e)J.
Secondly, Section 10(a) does not specifically refer to navigable waters of
the United States but conditions the exercise of federal regulation upon a
finding of interstate effect or consent of the Governor where the treatment
in turn raises at least two further questions: (a) are state as well as federal
concepts of navigability applicable, and if so, do they differ from one
another, and (b) what is the constitutional effect of a Governor's request
for, or consent to, EPA action under §§10(d)(l) or 10(g)(2) where solely intra-
state pollution is sought to be abated and occurs in waters not navigable
waters of the United States but "navigable in fact?"
These questions have received limited treatment in the literature, Clark,
Water and Water Rights §247. l(c); Edelman, Federal Air and Water Control:
The Application of the Commerce Power to Abate Interstate and Intrastate
Pollution, 33 Geo. Wash. L. Rev. 1067 (1965). However, in view of the
likelihood that they will be mooted by the enactment of new legislation, I
have not attempted to resolve them here.
-400-
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"Section 502.
* * *
(h) The term 'navigable waters' means the navigable waters
of the United States, portions thereof, and the tributaries
thereof, including the territorial seas and the Great Lakes.
(emphasis added) 2_/
Although addressed primarily to the immediate problem of what EPA's po-
sition should be with respect to the coverage of the new vessel sewage regu-
lations, this memorandum is also intended to provide a preliminary basis
for evaluating the proper scope of coverage of the other statutory provisions
noted above. In addition to the interstate connection requirement, at least
one inquiry has been received from EPA Regional Offices requesting a defin-
ition of "navigability in fact" primarily for purposes of applying section 21(b)
of the FWPCA. The Forest Service has asked the Region IX office to list
all navigable waters within public lands administered by the Forest Service
so that it may determine which Forest Service permittees must secure cer-
tifications from State agencies under section 21(b). The problems inherent
in attempting to define navigability in fact" for use in Regional offices will
be treated in a separate memorandum.
Interstate Water Connection Requirement
No discussion of the meaning of "navigable waters of the United States can
begin without quoting the bedrock definition of the term as enunciated over
100 years ago by the Supreme Court in The Daniel Ball. 77 U. S, 557 (1870):
"Those rivers must be regarded as public navigable rivers
in law which are navigable in fact. And they are navigable
in fact when they are used, or are susceptible of being used,
in their ordinary condition, as highways for commerce,
over which trade and travel are or may be conducted in
the customary modes of trade and travel in water. And they
constitute navigable waters of the United States within the
meaning of the acts of Congress, in contradistinction from
the navigable waters of the States, when they form in their
ordinary condition by themselves, or by uniting with other
waters, a continued highway over which commerce is or
may be carried on with other States or foreign countries
in the customary modes in which such commerce is con-
ducted bywater. " (emphasis added), id. at 563.
2/Section 10(a) of the FWPCA and the Refuse Act both include tributaries of
navigable waters of the United States within the waters covered if the dis-
charge may reach either "navigable waters of the United States (Refuse Act)
or "interstate or navigable waters" (§10(a), FWPCA). FWPCA §§11, 12, 13
and 21(b) are silent in this regard.
-401-
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The Daniel Ball definition thus seems to clearly establish an interstate water
connection requirement within its definition of navigable waters of the United
States as opposed to State navigable waters. Although this definition has
been further refined, and considerably expanded, as to what constitutes "nav-
igability in fact", United States v^ Appalachian Electric Power Co., 311 U.S.
377 (1940), the Court's requirement of a connection between states "by water"
has not been upset by later precedent. On the contrary, the requirement has
occasionally been reinforced in the Supreme Court, though no case has direct-
ly presented the issue for decision. In Ex Parte Boyer, 109 U.S. 629(1884),
the Court found the Illinois and Lake Michigan Canal to be within the navigable
waters of the United States, even though artificial and wholly within one state.
The Court noted that no opinion was being expressed as to:
"... waters wholly within the body of a State, and from
which vessels cannot so pass as to carry on commerce be-
tween [States]. . ." id. at 632. (emphasis added).
Nineteen years later in The Robert W. Parsons, 191 U.S. 17 (1903), another
inland canal case, the Court came closer to expressing such an opinion
when it stated that by finding the canal to be within United States' navigable
waters:
"It is not intended ... to intimate that if the waters,
though navigable, are wholly territorial and used only for
local traffic, such, for instance, as the interior lakes of
the State of New York, they are to be considered as nav-
igable waters of the United States. " id. at 28.
Subsequent Supreme Court and lower court decisions have treated the "nav-
igability in fact" question rather than the Daniel Ball interstate water con-
nection requirement.^/ However, the question has arisen in numerous dis-
trict and circuit court cases involving small craft accidents on inland lakes.
These cases have uniformly held that the waters cannot be deemed navigable
waters of the United States unless they are located upon a state or foreign
boundary, e.g., Wreyford y. Arnold 477 P. 2d 332 (Ct. App. N.M. 1970)
(Navajo Lake, New Mexico), or are connected with another state or country
by navigable water, e.g.. Ma dole v. Johnson, 241 F. Supp. 379 (W.D. La.
11965) (Lake Hamilton, Arkansas, formed by damming the Ouachita River),
Loc-Wpod Boats and Motors v. Rockwell, 245 F.2d 306 (8th Cir. 1957) (Lake
of the Ozarks, Ark.). Surprisingly, in only one of these decisions was the
argument ever advanced that interstate connection by land transportation is
sufficient. In that case, Shogry v. Lewis, 225 F. Supp. 740 (W.D. Pa.
1964), federal jurisdiction was denied even though opposite shores of Lake
Chautauqua, New York, were connected by an automobile ferry:
3/ (e.g., The Montello. 87 U.S. 430 (1875); United States v. Appalachian
Electric Power Co., supra; Economy Light Co. v. United States, 256 U.S7
113 (1921); see also, Utah v.' United States. 2 ERC 1759 (U. S. Sup. Ct.,
decided June 7, 1971); United States v. Utah 283 U.S. 64 (1931); United States
v. Holt Bank, 270 U. S. 49 (1926); Rochester Gas & Electric Corp. v. Fed."
Power Comm., 344 F. 2d 593 (2d Cm 1965).
-402-
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"It may be considered that interstate as well as domes-
tic commerce moves on Lake Chautauqua.
It seems clear, however, that this Court has no admiralty
jurisdiction over Lake Chautauqua.
* * #
". . . it is certain that the waters of Lake Chautauqua do
not form in their ordinary condition by themselves, or by
uniting with other waters, a continued highway over which
commerce is or may be carried on with other States or
foreign countries in the customary modes in which such
commerce is conducted by water. " id. at 742-743.£/
Two cases which ultimately went to the Supreme Court discuss the possibil-
ity of utilizing the notion of interstate effect through rail and water links
between states.
Thefirstof the two cases, The Katie, 40 F. 480 (S.D. Ga. 1899), mandamus
denied. In re Garnet, 141 U. S. 1 (1890), involved the constitutionality of a
federal statute limiting liability for losses to vessel cargo. The statute
extended to "all vessels used on lakes or rivers, or in inland navigation".
It was challenged on the ground that by reference to "inland navigation" the
statute sought to regulate "internal commerce" and so exceeded the bounds
of the Commerce Clause. The facts of the case indicate, however, that the
vessel, The Katie (which caught fire and lost most of her cargo), was en-
gaged in carriage of goods between South Carolina and Georgia on the Savan--
nah River which forms the border between those states. The parties seeking
to avoid the statute virtually conceded that it was probably valid as applied
to The Katie, but argued that by its breadth the statute would inevitably regu-
late internal commerce and so was void. The Court chose to treat this
4/Other boat accident cases noted wherein claims of navigability were re-
fected include: George v. Beavark, Inc. 402 F.2d 977 (8th Cir. 1968)
Beaver Lake, White River, Arkansas; "float fishing" sole commercial use);
Watring v. Unnamed Inboard Motor Boat No. WV4488AB, 322 F. Supp. 1226
(S.D. W. Va. 1971) (Sutton Reservoir, Elk River, W- Va.); In re Builders
Supply Company, 278 F. Supp. 254 (N.D. Iowa 1968) (Clear Lake, Iowa; U. S.
Rte. No. 18 passes close by: Doran v. Lee, 287 F. Supp. 807 (W. D. Pa.
1968) (Conneaut Lake, Pa.); Johnson v. Wa"rtHman, 227 F. Supp. 135 (D. Ore.
1964) (Lake of the Woods, Oregon; no significance that Lake located entirely
within U. S. National Forest).
These cases may be subject to the distinguishing argument that the interest
of the Court in protecting personal injury claimants from severe damage
limitations imposed by the law of admiralty, together with the close affinity
of the cases to traditional automobile negligence actions, resulted in holdings
of non-navigability. Nevertheless, the holdings are in accord with the Daniel
Ball formula and inevitably give it some strength regardless of the extraju-
dicial factors which may have been responsible for the results reached.
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argument on the merits and sought to draw a distinction between "inland
navigation" and "internal commerce" by focusing on the interstate destination
of the goods. In aid of this argument the Court noted the interstate water
connection required by the Daniel Ball and The Montello, but stated, at page
489:
"It will be observed that this was the construction of a penal
statute, and its application under the admiralty power. But
for the regulation of interstate commerce . . . Congress
has enacted legislation with reference to the commerce up-
on water routes whether they form by connection with other
waters or with railways, a highway for continuous carriage
or shipment of passengers or property. * * * If therefore,
the navigable waters of a state wholly within the state, and
with no exterior water connection, are yet utilized under
'common control, management, or arrangement, ' in con-
nection with railroads, for 'continous carriage1 in other
words* for interstate commerce, for the purpose of such
commerce, they would become public waters of the United
States, and subject to Congressional control under the com-
merce clause.'
This reference to a rail-link connection was clearly unnecessary to sustain
the application of the statute to The Katie and so is dictum. The Court's
reference to a rail connection, in any case, appears to be an attempt to
establish the necessary interstate character of carriage in some inland waters
rather than redefine the scope of the "navigable waters of the United States",
a term not used in the statute being examined.
Finally, the Court found that the statute was independently supported by the
Admiralty Clause of the Constitution. This basis for upholding the statute
was thereafter relied upon exclusively by the Supreme Court, with no refer-
ence in its opinion to the lower Court's possible challenge to the interstate
connection requirement. The Supreme Court held that the federal limitation
statute was validly passed by Congress as an amendment of the "general
maritime law" and applied within the limits of the admiralty jurisdiction,
without regard to the interstate character of the commerce being carried.
As to maritime torts, the Court held that this jurisdiction is determined by
locality of the tort within the "navigable waters." The Court then relied upon
The Daniel Ball. The Montello and Ex Parte Boyer to describe the scope of
those waters without suggesting any abandonment of the water connection re-
quirement.
The only other challenge to the water connection requirement which was noted
occurred in the dissenting opinion in United States v. Appalachian Electric
Power Co., 107 F. 2d 769 (4th Cir. 1939). rev'd, 311 U. g. 377 (1940). Judge
Parker in his dissent argued that the New River between Virginia and West
Virginia was "navigable in fact. " Alternatively, he contended that since water
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commerce on the upper reaches of the New River (conceded by the power
company to be navigable) reached other states by virtue of a rail connection,
the river was used as a "highwayfor interstate commerce" andso was subject
to federal regulation. Judge Parker acknowledged the water connection re-
quirement in The Daniel Ball, but stated:
"I do not think, however, that this statement was intended
to limit the power of Congress over a stream which is in
fact a highway of interstate commerce moving partly by *
rail. There can be no question as to the power of Congress
over an intrastate railroad over which interstate commerce
moves. Colorado v. United States. 271 U.S. 153, 46 S.Ct.
452, 70 L.Ed. 878. And there can be no difference in
principle with respect to a stretch of water wholly within
a state which serves as a highway for interstate commerce.
A different question would be presented if an intrastate
stretch of water capable of use in interstate commerce
had never been used for that purpose. Here, however, the
waterway has been used in connection with a railway as a
highway of interstate commerce and to that end has been
improved by Congress through expenditure of moneys of
the United States." id. at 806-807.
In reversing, the Supreme Court adopted the first of Judge Parker's argu-
ments but again ignored the water connection problem. One may validly
speculate that, in view of the obvious stretching of the concept of navigability
which was taking place in Appalachian Electric Power, that the Court would
have latched onto the notion of an interstate rail connection if there were any
support for the theory in the Court, if not in the case law. Instead, the
Court chose to rely upon the much less obvious theory of establishing naviga-
bility by showing "improvability" (given a reasonable relationship between
benefits and cost). Neither this case nor The Katie has ever been cited for
the proposition that the water connection requirement should be dropped.
In sum, existing authority for extending "navigable waters of the United
States" to cover Inland waters with an interstate land transportation con-
nection is negligible, and there is substantial authority to the contrary. On
the other hand, the issue has never been posed in a case brought under the
FWPCA or the Refuse Act, and in view of the arguments which could be
advanced in such a case as to the pervasive interstate impact (including
commercial impact) of intrastate pollution, perhaps the water link require-
ment could not be eliminated. Yet Congress did choose, in the fact of the
existing case law, to utilize the navigable waters rubric without inclusion of
additional language indicating a desire to cover pollutive activities which may
affect interstate commerce'r though not themselves originating in navigable
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waters of the United States. 5/ This choice, together with the emphasis on
continued State participation in pollution control [cf. FWPCA §§10, 21(b)],
does not favor an argument that, if accepted, and pushed to its logical con-
clusion, could virtually obliterate the notion of intrastate waters subject to
exclusive State jurisdiction.
Also, once aland rather than water connection between States is considered,
one must begin to catalogue the variations of connections which could be
relied upon and the size of rivers, streams and lakes which could be involved.
Assuming we do not wish to advocate a federal regulatory take-over of all
water in the country, we would be forced to choose between modes of trans-
portation (rail, land, air?) and perhaps make distinctions within those modes
(e.g., interstate highways, federal vs. State highways; degree of usage;
proximity to water; actual crossing vs. tangential routing?). Additional
distinctions might be necessary to discriminate as to the size of the water
body involved. Still further discriminations might then be made based upon
commercial activity in or near the water body as an indicator of interstate
economic involvement and perhaps the degree of pollution likely to be involved.
Thus, doing away with the land connection requirement presents practical
as well as legal obstacles. Informal discussions with personnel in the
General Counsel's Office of the Coast Guard and the Army Corps 'of Engi-
neers indicate that the former is hesitant to attempt to cover inland water
while the latter is entertaining some thought of covering "large" inland water
bodies (e.g., theSaltonSea inCalifornia) without regard to water connection.
Both recognize the legal impediments to such action.
Given this background as well as the practical application of the vessel sew-
age regulations with which we are presently concerned, I do not believe an
effort to abandon the water connection requirement is presently warranted.
The type of craft operating on inland lakes are unlikely to have any toilet
facilities on board. Moreover, the issue seems to be politically sensitive
(viz., Michigan Governor Milliken's request for a statewide "no discharge"
zone), and so State regulation may well be forthcoming should any significant
inland lake problem emerge.
5/ Compare section 23(b) of the Federal Power Act, which was recently relied
upon by the Supreme Court to extend the FPC's jurisdiction to cover a pump-
storage project to be located on non-navigable waters but which would trans-
mit energy across state lines, FPC v. Union Electric Co. ,381 U.S. 90
(1965). Though §21(b)(2) of the FWPCA does give a state wEose waters are
"affected" an opportunity to object to the issuance of a federal permit, there
nevertheless must have been a discharge into "navigable waters of the United
States" in the first place in order to activate the provisions of §21(b). Sections
10(a) and 10(c)(5) of the FWPCA, as well as the Refuse Act, do contain
the notion of regulating a discharge into non-navigable waters if it may affect
interstate or navigable waters of the United States. However, the discharge
or harmful effect must be transported by water, and it is not enough to
establish federal jurisdiction merely because of an interstate economic effect
transmitted via land-based commercial activity.
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Looking at other statutory applications of navigable waters of the United
States, it should be borne in mind that inclusion of tributaries of United
States' waters brings in about from 95% in close to 100% of the nation's
waters by surface area (as estimated by personnel of Water Quality Stan-
dards Office). As noted earlier, tributaries are specifically included within
the scope of the Refuse Act and FWPCA §10(d) enforcement conferences.
They are also included within the definition of navigable waters in S. 2770
which would apply across the board to the FWPCA. In addition, even with-
out specific statutory reference to tributaries there is authority for argu-
ing that such waters may be regulated if any activity therein may affect
navigable waters of the United States. 6>/
Pursuance of the land connection theory could also conceivably push federal
jurisdiction to close to 100% and might well cover a few significant bodies of
water, at least in terms of size, which the tributary theory would miss (e.g.,
the Salton Sea). This additional margin, however, does not appear to justify
the legal and administrative difficulties it presents. In any event, we should
be able to preserve the option of attacking the water connection requirement
should this judgment of the factual and administrative practicalities prove
erroneous.
6 ICt., Oklahoma v. Atkinson Co.. 313 U.S. 508 (1941) (". . . it is clear that
Congress may exercise its control over the non-navigable portions of a river
in order to preserve or promote commerce on the navigable portions, id.
at 523); United States v. 531.13 Acres of Land, 366 F. 2d 915 (4th Cir. 196^1,
cert. den. 385 U.S. 1025 (l^BTT. ~~
§§§§§§§
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VESSEL SEWAGE REGULATIONS UNDER FWPCA, AMENDED
TITLE: No-Discharge Exemption from the Federal Vessel Sewage Standard
Under Section 312(f)(3)
DATE: January 18, 1973
Honorable William G. Milliken
Governor of Michigan
Lansing, Michigan 48903
Dear Governor Milliken:
Thank you for your letter of DecemberlS, 1972, outlining Michigan's program
to control sanitary waste discharges from vessels. I am glad to hear of
your vigorous efforts, and the high degree of compliance that you report.
Your letter inquires concerning the means by which Michigan may apply for
a no-discharge exemption from the federal vessel sewage standard under
section 312(f)(3) of the Federal Water Pollution Control Act, as recently
amended. As you know, Section 312(f)(3) is operative only " [ajfter the effective
date of the initial standards and regulations promulgated under [section 312]."
Section 312(c)(l) provides that the initial federal standards and regulations
shall be effective for new vessels two years after promulgation, and for exist-
ing vessels five years after promulgation. Accordingly, I do not believe
that the exemption procedure of section 312(f)(3) is available until the two
and five-year periods specified in section 312(c)(l) have elapsed. During
these interim periods, since the federal standards and regulations are not
yet in effect, Michigan's law in this area is not pre-empted under section
312(f)(l), and thus there is no real necessity for federal approval of no-
discharge areas in Michigan.
We do not believe that section 312(f)(2) operates to change these conclusions.
Section 312(f)(2) makes the federal standards and regulations effective im-
mediately as to any vessel "equiped with a marine sanitation device in com-
pliance with such standards and regulations." However, the federal stan-
dard, promulgated by EPA last June (37 F.R. 12391), is a no-discharge stan-
dard, and thus vessels in compliance with the federal standard should present
no problem from the standpoint of Michigan law. To be sure, the" EPA reg-
ulation included an incentive provision (§140. 3(c)) giving a limited exemption
from the no-discharge standard to vessels installing flow-through devices
meeting certain requirements. However, we do not view §140. 3(c) as part
of the standard for purposes of section 312(f)(2), and accordingly we do not
believe that §140. 3(c) operates to preempt the Michigan law and create a
necessity for a no-discharge exemption under section 312(f)(3).
§§§§§§
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TITLE: Interpretation of Section 312 -- Vessel Sewage Regulations
DATE: January 16, 1973
Mr. Richard Schwartz
Executive Director
Boat Owners Association of
the United States
1028 Connecticut Avenue
Washington, D. C. 20036
Dear Mr. Schwartz:
Mr. Ruckelshaus has asked me to respond to your letter of November 20,
1972, concerning the interpretation of section 312 of the Federal Water Pol-
lution Control Act, as amended. Let me apologize for the delayed response;
the questions you raise are difficult and required some time to resolve.
Your first question concerns the relationship between paragraphs (3) and (4)
of section 312(f), both of which relate to special no-discharge zones. You
note that paragraph (3) requires the Administrator to determine only the
question of "adequate facilities for the safe and sanitary removal and treat-
ment of sewage from all vessels"; while paragraph (4) requires the Admin-
istrator to determine only the question of whether water quality requires a
prohibition of any discharge. You ask whether the Administrator must also
consider water quality requirements under paragraph (3), and the availability
of adequate removal facilities under paragraph (4).
In my opinion, paragraphs (3) and (4) of section 312(f) must be read literally.
Paragraph (3) requires the Administrator to determine only the question of
availability of removal facilities, while paragraph (4) requires the Admin-
istrator to determine only the question of water quality. I would not read
into the statute a requirement that the Administrator must also make a water
quality determination under, paragraph (3), and a "facility" determination
under paragraph (4).
The Congressional intent was, I believe, fairly clear. Under paragraph
(3), a State could establish a no-discharge rule for "some or all of the waters
within such State"; in such event, pump-out facilities would clearly have to be
available (since there might be no waters into which a discharge could be
made). On the other hand, paragraph (4) provides for no-discharge zones
covering "specified waters". This would presumably mean limited areas,
such as shellfish areas or waters off public beaches, in which case pump-
out facilities might not be necessary (since discharges might be permissible
in other areas).
With respect to the question of water quality, I see no inconsistency between
paragraphs (3) and (4) as written. Under paragraph (3) the State makes the
water quality determination, while the Administrator makes this determina-
tion under paragraph (4). But in both cases, the determination must be made.
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Your second question asks whether, during the five-year period before the
effective date of the federal standard under section 312(c)(l) as to existing
vessels, the States are precluded from prohibiting discharges from existing
vessels which are in compliance with the federal standard. This question
requires an interpretation of section 312(f)(2) as applied to the initial EPA
standard published in the Federal Register June 23, 1972. As you know,
section 312(f)(2) provides that the initial standards and regulations under
section 312 shall become effective immediately (and thereby pre-empt State
and local laws) with respect to any vessel equipped with a marine sanitation
device "in compliance with such standards and regulations." EPA's initial
standard prohibited any discharge. However, an exemption clause (§140. 3(c))
was adopted providing that existing vessels equipped with a flow-through de-
vice meeting certain specifications would not be required to comply with the
no-discharge standard for specified periods of time. This clause was in-
tended to provide for immediate pollution abatement before the effective date
of the Federal standard, in those States without their own! regulatory program
governing vessel sewage.
The position of the Environmental Protection Agency is that §140. 3(c) is an
exemption from the no-discharge standard, and that accordingly a vessel
in compliance with this exemption is not "in compliance with [the federal]
standards and regulations" for purposes of early Federal pre-emption of
State and local law under Section 312(f)(2) of the FWPCA. This position
accords with the original intent of the EPA standard, which was to provide
for immediate pollution abatement in those States without their own regula-
tory program for abatement of vessel sewage, rather than to weaken existing
State regulation. It also accords with the language of the EPA standard,
which specifically designates §140. 3(c) as an "exemption," and specifically
states that a single "standard" is being adopted, rather than two standards.
We do not read Section 312(f)(2) of the FWPCA to provide for early Federal
pre-emption of State and local laws regarding vessel sewage upon compliance
by any vessel with an exemption to the Federal standard.
§§§§§§§
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THE REFUSE ACT'S PERMIT PROGRAM
TITLE: Proposed Corps Regulations Concerning Permit Program Hearings
DATE: August 12, 1971
1. The Corps has expanded the scope of its proposed regulations governing
permit program hearings. A memorandum Mr. Zener sent you on May 27,
1971, commented on the unacceptability of the earlier draft of the regula-
tions, which concerned only hearings held when a state objected to the grant-
ing of a permit under section 21(b)(2) or (4), FWPCA. The new proposed
regulations deal not only with those situations, but also with "any public
hearing required before a Department of the Army permit can be modified,
suspended or revoked".
As in the earlier proposal from the Corps, EPA's status at such hearings
is that of a party (section 212(f)). The proposed regulations then provide
that in hearings involving the permit program, the Corps will "consult with"
EPA before making a decision (section 212(d)(2)). As to the weight to be
accorded to EPA's views, section 212(d)(4) provides that in cases where
a downstream state challenges the permit under section 21(b)(2) or the certi-
fying state challenges the operation of the facility under section 21(b)(4), the
decision of EPA as to the water quality standards in question is not binding
on the Corps. The same subsection provides that as to all other cases, the
EPA's decision shall be binding.
2. This format is deficient both as to the non-binding quality of EPA's ad-
vice in cases involving section 21(b) and as to EPA's status as a party to
the hearings in which it also makes the decision. These problems are dis-
cussed below.
3. Subsections 21(b)(2) and (4) create procedures for hearing and decision
by the federal licensing or permitting agency either when a downstream state
objects to the granting of a permit (section 2l(b)(2)), or when the certifying
state, having certified the application for a non-operating permit or license
(e.g., a construction permit), asserts that water quality standards,will be
violated by the method of operation of the permitted or licensed activity
(section 21(b)(4)). Section 21(b)(2) further provides that EPA shall, at such
hearings, submit "evaluation and recommendations" to the licensing or per-
mitting agency; section 21(b)(4) has no similar provision.
The Corp's proposed regulations apparently reason that since 21(b)(2) and
(4) flatly require the licensing or permitting agency itself to decide both
whether water quality standards would be violated, and how on that account
to condition the permit or license, given only to condition the permit or
license, with EPA specifically given only an advisory role, then the permit
policy of having EPA's decision on water quality matters be binding must
yield to the specific requirement in section 21(b) that the licensing or per-
mitting agency actually make the decision. This reasoning is not satis-
factory.
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Unquestionably, the reason why 21(b)(2) and (4) give responsibility for the
ultimate decision on water quality standards to the licensing or permitting
agency, with advice from EPA, is that Congress did not want to give one
federal agency (at the time 21(b) was enacted, of course, the Department
of the Interior rather than EPA was the pollution control agency) a veto
power over the very broad range of activities for which various federal
licenses and permits must be obtained from other federal agencies. The
provision is a compromise between the Senate and House bills (see the
Conference Report, H.R. Rep. No. 91-940, 91st Cong., 2d Sess. at pp.
51-58); the former would have given a bigger say to the Secretary of the
Interior in all cases, and the latter would have given the state in which the
discharge occurs the final say on certification (i. e., with no review of any
kind by the Secretary and no provision for complaint by a downstream state).
This rationale does not apply to the permit program, where, at least theo-
retically, the Corps has stated that it is willing to cede to EPA what amounts
to a veto power over Section 13 permits. If the Corps has accepted this
result for the usual permit application process,' there is no reason why it
should strain at the delegation of its power also in those cases where a
downstream state or a certifying state objects in the circumstances de-
scribed by Section 21(b)(2) and (4). And as I have suggested, if the Corps
is willing to have EPA make the decision on these questions, then, and for
that reason, nothing in section 2Kb) should prevent that course. (Whether
the Corps has the power to delegate this function to EPA is another matter,
but for the reason stated I do not think that section 21(b) bears that question.)
4. Mr. Zener discussed the basis of his objection to EPA's status as both
party and decisionmaker under the earlier draft of the proposed Corps regu-
lations in his memorandum of May 27. We have discussed this point further
with both you and the Corps since, and those discussions have confirmed by
belief that under either draft, any decision made by EPA on a permit appli-
cation would be voided by a reviewing court on the ground that EPA is serv-
ing as judge in a cause in which it is also a party. I cannot imagine a more
fundamental defect in a judicial or quasi-judicial proceeding.
Mr. Zener's May 27 memorandum proposes that an EPA hearing examiner
attend hearings at which water quality matters are in issue, and that the
EPA examiner make findings and conclusions on such matters, on the basis
of which the Administrator would render his binding advice to the Corps. I
still believe this to be much the best solution, as it would provide for a
knowledgeable EPA representative, independent within the definition of the
Administrative Procedure Act, to be present at the hearing, observe the
witnesses, and address himself directly to water quality issues alone. Only
this procedure could provide a firm basis for a binding EPA decision.
The reaction to this proposal has been to admit its rationality, but to point
out that hearings at which two examiners would be present would be an anom-
aly and an unprecedented inelegance. But the anomaly and inelegance spring
from the permit program itself, and cannot be cured without changing EPA's
role in it. The permit program bifurcates decisions concerning permits
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into water quality and non- water -quality factors, and assigns the responsi-
bility for the former portion to EPA and the latter to the Corps. If two
such decisions are thus being made on each permit application, and if those
decisions are to be made on the basis of a quasi-judicial hearing, then it
is the height of logic to have both decisionmakers represented at the hearing.
EPA's portion of the decision will be subject to strong attack if only the
Corps has the procedural independence afforded by an APA hearing examiner.
To be sure, the presence of two hearing examiners can be expected to pro-
duce embarrassing moments and perhaps some undesirable results, but such
effects will be more than compensated for by a successful program of pol-
lution abatement. And I do not think it out of place to add that whatever
embarrassment and unpleasantness are caused by having two hearing ex-
aminers will be as nothing compared to that caused EPA by a court decision,
which would not be final until a year or two from now and after many many
permit hearings had been held, that a major portion of the program is in-
valid for failure to comport with the most fundamental principle underlying
the adversary legal system.
4.- Accordingly, I recommend the following changes in the proposed regu-
lations:
a. The deletion of the phrase "other than those standards on which the
objection of the objecting state is based" from section 212(d)(4) on pages
5-6 of the draft (part of the phrase is repeated on page 6 of the draft,
apparently inadvertently).
b. The following subsection 212(b)(3) should be added to section 212(b)
(the present subsection (b)(3) would be redesignated as (b)(4), etc.):
Recognizing the expertise of the Environmental Protection Agency
in matters related to water quality, .a hearing examiner appointed by
EPA will attend all phases of hearings concerning permits under 33
CFR 209.131, the regulations for the Refuse Act Permit Program,
and will, on the basis of the record made at such hearings, make
written findings as to:
(A) Where application for a permit is involved:
(i) The meaning and content of applicable water quality stand-
ards;
(ii) The application of water quality standards to the proposed
discharge or deposit, including the likely impact of the pro-
posed discharge or deposit on such water quality standards
and related water quality considerations;
(iii) The permit conditions required to comply with applicable
water quality standards;
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(iv) The permit conditions required to carry out the purposes
of the Federal Water Pollution Control Act where water qual-
ity standards are not applicable in whole or in part;
(v) The protection afforded fish and wildlife resources by
water quality standards, if any;
(vi) The interstate water quality effect of the proposed dis-
charge or deposit;
(vii) The recommended duration of a permit; or
(B) Where the question of modification, suspension, or revoca-
tion of an existing permit is involved:
(i) Whether the terms of the permit have been violated;
(ii) The character and seriousness of the violation.
Based on these findings, the EPA hearing examiner shall make a
written recommended determination as to whether or not the permit
applied for should issue, or, in appropriate cases, where the permit
should be modified, suspended, or revoked, along with the reasons
for this recommended determination. Such determination, along with
a transcript of the proceedings, shall be forwarded to the Adminis-
trator of EPA.
At hearings when a hearing examiner from the Army Corps of En-
gineers and one from EPA shall be present, the former shall pre-
side. However, in order to insure the speedy and just conclusion
of the matter, the presiding hearing examiner may delegate all or a
part of his powers and duties as presiding officer to the EPA hearing
examiner when questions concerning water quality are in the process
of being heard and determined.
*
c. In the present subsection 212(b)(3), to be redesignated as 212(b)(4),
the final three sentences should be deleted.
§§§§§§§
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TITLE: Army Corps of Engineers' proposed regulations governing permit
program hearings where a downstream state has objected pursuant
to section 21(b)(2) and (4) of FWPCA
DATE: May 27, 1971
1. The Corps's proposed regulations would provide that where a down-
stream state objects to the granting of a Refuse Act permit pursuant to
section 21(b)(2), the Corps will hold a hearing on the application, which
hearing will be conducted pursuant to the Administrative Procedure Act,
5 USC 551 et seq., and presided over by a hearing examiner. See section
1.3(a), (b). Under the proposed regulations, EPA is relegated to the status
of a party at such hearings (section 1.4).
2. There are serious deficiencies in this proposed procedure. Under the
permit program regulations, EPA is supposed to have the final say as to the
environmental factors involved in permit applications. (33 CFR 209.131(d)
(6)-(10)). The Corps's new regulations cover merely a special kind of per-
mit program hearing -- i.e., those hearings on application for Refuse Act
permits where a downstream state objects to the granting of a permit under
section 21(b)(2) of FWPCA. Therefore, in the hearings covered by the pro-
posed regulations, EPA is supposed to make the decision on environmental
factors.
The difficulty is that the Corps has not provided for EPA's decision-making
role in the proposed regulations. This means one of two things: (1) the
Corps has -- advertently or not -- cut EPA out of the process of decision
of whether a Refuse Act permit is to be granted in those cases where a
downstream state objects pursuant to section 2l(b)(2) of the FWPCA; or (2)
EPA is to keep its decision-making role under the proposed regulations, and
the Corps intends EPA to submit its decision to the Corps hearing examiner
(in a step analogous to EPA's submitting a decision to the District Engineer
under the permit program regulations (33 CFR 209.13(d)(7)).
That the first of these alternative results is unsatisfactory needs no dis-
cussion. The second is also unsatisfactory; while the hearing is supposed
to be conducted with the procedural protection of the Administrative Pro-
cedure Act (including having an impartial hearing examiner), the decision
as to environmental factors would actually be made by EPA -- one of the
parties to the hearing. I have serious doubt as to whether a reviewing
court would uphold this procedure.
Therefore, we should obtain the alteration of the proposed regulations by
adding the requirement that a hearing examiner from EPA attend the hearing
(though, in deference to the Corps, he should not preside), and make that
portion of the decision dealing with environmental questions. Although this
result would be somewhat inelegant, as it would require the use of two hear-
ing examiners, I believe it to be necessary.
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3. Accordingly, I suggest that the following changes be made in the pro-
posed regulations. The second sentence of section 1.3(b) should be amended
to read:
Except as provided in subsection (c) below, the hearing examiner shall
have authority [etc.] * * *.
In addition, the following subsection (c) should be added to section 1.3 (the
present subsection would be redesignated as (d), etc.):
Recognizing the expertise of the Environmental Protection Agency in
matters related to water quality, a hearing examiner appointed by EPA
will attend all phases of the hearing and will, on the basis of the record
made at such hearings, make written findings as to:
(i) The meaning and content of applicable water quality standards;
(ii) The application of water quality standards to the proposed dis-
charge or deposit, including the likely impact of the proposed dis-
charge on such water quality standards and related water quality
considerations;
(iii) The permit conditions required to comply with applicable water
quality standards;
(iv) The permit conditions required to carry out the purposes of the
Federal Water Pollution Control Act where water quality standards
are not applicable in whole or in part;
(v) The protection afforded fish and wildlife resources by water
quality standards, if any;
(vi) The interstate water quality effect of the proposed discharge or
deposit;
(vii) The recommended duration of a permit.
Based on these findings, the EPA hearing examiner shall make a written
recommended determination as to whether or not the permit applied for
should issue, along with the reasons for this recommended determination.
At hearings when a hearing examiner from the Army Corps of Engineers
and one from EPA shall be present, the former shall preside. However,
in order to insure the speedy and just conclusion of the matter, the
presiding hearing examiner may delegate all or a part of his powers
and duties as presiding officer to the EPA hearing examiner when ques-
tions concerning water quality are in the process of being heard and de-
termined. Upon the making of findings by the EPA hearing examiner,
those findings, along with the recommended determination, shall be a-
dopted by the Corps of Engineers hearing examiner, and made a part of
his recommended decision.
§§§§§§§
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TITLE: Confidentiality Clause in Permit Program Application Form
DATE: July 12, 1971
You have asked me for my opinion concerning the request by OMB that the
Corps and EPA agree to honor any request for confidentiality made by in-
dustry as to information (other than effluent data) contained a permit pro-
gram application form. The confidentiality clause in the present application
form and the permit program regulations promises confidentiality for trade
secrets, with the Corps making its own determination as to whether any
particular item for which confidentiality is claimed is in fact a trade secret.
1. I do not think we can, under the Freedom of Information Act, agree to
honor any request for confidential treatment; on the contrary, the Act would
require EPA or the Corps to make an independent judgment as to whether
the particular item of information for which confidentiality is claimed is
entitled to confidential treatment. This is made clear by the decision in
Bristol-Myers Company v. Federal Trade Commission, 424 F. 2d 935 (D. C.
Cir. 1970). In that case --a suit under the Freedom of Information Act to
obtain certain records of the Federal Trade Commission -- the district court
had dismissed the complaint on the basis of the Government's assertion that
the documents contained confidential information, as well as other exempt
material. The Court of Appeals reversed, holding that the district court
should have inspected the documents to make its own determination as to
whether they were entitled to confidential treatment. The Court of Appeals
stated (424 F. 2d at 938-9):
The first exemption cited protects "trade secrets and commercial or
financial information obtained from a person and privileged or confiden-
tial." 5 U.S.C. §552(b)(4). This provision serves the important func-
tion of protecting the privacy and the competitive position of the citizen
who offers information to assist Government p~olicy makers.
Nevertheless, the statutory scheme does not ^permit a bare claim of
confidentiality to immunize agency files from scrutiny. The District
Court in the first instance has the responsibility of determining the va-
lidity and extent of the claim, and insuring that the exemption is strictly
construed in light of the legislative intent. The court may well con-
clude that portions of the requested material are protected, and it may
be that identifying details or secret matters can be deleted from a docu-
ment to render it subject to disclosure. These judgments are possible
only after careful consideration of the particular documents in question
and it is for this detailed analysis that we remand. (Emphasis added).
Clearly, if a court has the independent responsibility to scrutinize the docu-
ments rather than accepting a claim of confidentiality by the Government,
then the Government also has an obligation, when sued under the Freedom
of Information Act, to make an independent determination as to whether the
documents for which industry claims confidentiality are in fact confidential
documents exempt from mandatory disclosure under the Freedom of Infor-
mation Act.
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2, However, at issue between us and OMB may be more than simply the
question of whether the Government rather than industry has the final say on
the confidential treatment to be accorded a particular item of information.
There is also the question of whether confidentiality is to be confined to trade
secret information or is to have a broader scope. The permit program
regulations confine confidentiality to trade secret information. However,
the Freedom of Information Act would allow us to keep confidential "com-
mercial and financial information" provided it was of the sort that is cus-
tomarily kept confidential. I/ This could include a broader range of in-
formation than "trade secre~ts"", which generally includes only information
regarding formulas and manufacturing processes. See79C.J. S. pp. 935-6,
defining "trade secret." The OMB position might require us, for example,
to withhold from public disclosure such "commercial" information as the
amount of output of a particular plant, although such information would not
be a "trade secret" and thus would not be accorded confidentiality under the
permit program regulations as they now read. Indeed, the very giving of
a pledge of confidentiality by the Government would be a significant argu-
ment which the Government and industry could use in resisting disclosure
under the Freedom of Information Act of non-trade secret information. 2/
Thus the giving of such a pledge for non-trade secret information as OMB
appears to want could have legal effect, and the question of whether it should
be given becomes a policy matter.
I/ See Sen. Rpt. 1219, 88th Cong. 2d Sess., at p. 6, discussing the
exemption in the Freedom of Information Act for confidential information:
This exception is necessary to protect the confidentiality of information
which is obtained by the Government through questionnaires or other in-
quiries, but which would customarily not be released to the public by
the person from whom it was obtained.
2/ In the legislative history of the Freedom of Information Act, it was
made clear that one of the purposes of the "confidential information" ex-
emption was to enable the Government to honor good-faith pledges of con-
fidentiality. See H. Rpt. 1497,^ 89th Cong. 2d Sess., at p. 10: "where
the Government has obligated itself in good faith not to disclose documents
or information which it receives, it should be able to honor such obligations."
§§§§§§§
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TITLE: Legal Basis for Effluent Guidelines
DATE: August 9, 1971
SUMMARY
In my memorandum of July 6, 1971, I discussed the legal basis for efflu-
ent standards in the permit program on the basis of the generally prevalent
theory that they are intended to define what constitutes the equivalent of
secondary treatment, which is usually required by water quality standards.
My memorandum pointed out the many difficulties in using the test of equiv-
alence to secondary treatment as a basis for effluent standards.
I have now concluded that there is another basis in water quality standards
that can serve as a justification for effluent standards, at least in the most
serious situations we face -- those where the receiving water in question
fails to meet applicable water quality standards.
With respect to discharges into receiving waters where no violation of stand-
ards can be established, I remain doubtful as to whether we have authority
to impose effluent standards. However, assuming the correctness of the
recent decision of the Court of Appeals for the District of Columbia in
Calyert Cliffs Coordination Committee v. Atomic Energy Commission
(which appears to require the Corps of Engineers to make an evaluation of
environmental factors independent of that made by EPA), it seems advis-
able for EPA to participate in the Corps' determination at least to the extent
of recommending compliance with effluent standards where there is no vio-
lation of water quality standards.
These matters are discussed below. I have attached a set of recommended
instructions to the Regions on how to use effluent standards in dealing with
permit applications. These instructions could be used whenever it is felt
that the effluent guidelines have sufficient technical validity to be utilized as
standards in passing on permit applications.
DISCUSSION
A. Authority for Affluent Guidelines Where Water Quality Standards are
Violated ~~ " ~~~
1. EPA's role in the permit program can be most easily justified in
those cases where the discharge in question would be abatable under sec-
tion 10(c)(5), FWPCA. For in such cases the Corps, by looking to EPA
for conclusive advice, is taking the perfectly justifiable position that it
will not issue a permit for a discharge which EPA considers to be in
violation of the statute which EPA administers. If the discharge would
in fact be subject to abatement under the FWPCA, then, also pursuant
to section 10(c)(5), the court would take into account "practicability and
physical and economic feasibility" in granting relief. In other words,
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the court would order the abatement of the discharge to the best practi-
cable and feasible level. Under the permit program, then, where a
discharge would be abatable under section 10(c)(5), EPA has the power
to require the Corps to condition a permit upon institution of the same
level of treatment that would be required under section 10(c)(5): the
best level of treatment that is practicable and feasible. This, as I under-
stand it, is the level of treatment defined by effluent guidelines. There-
fore, under the permit program, EPA can require the effluent guidelines
to be met whenever the discharge in question would be subject to abate-
ment under section 10(c)(5).
2. The foregoing serves to justify application of the effluent guidelines
to any interstate waters which are not in compliance with water quality
standards. In such a case, where a discharger's effluent contributes
to that violation to any extent (this should be discernable from the per-
mit application), then the discharge is subject to abatement under sec-
tion 10(c)(5). It is no defense to an abatement action under section 10
(c)(5) for the discharger to assert either (1) that if the receiving water
were otherwise pure the discharge in question would not, by itself, lower
the receiving water below water quality standards or (2) that abatement
of the particular discharge would not raise the receiving water quality
above applicable standards (i.e., because other discharges would still
be present and would be enough to cause the violation). In short, to
obtain abatement under section 10(c)(5), EPA need only show that a dis-
charge contributes to an existing violation, and need not show that the
discharge causes the violation. */
3. Under the permit program, therefore, where an intrastate lake or
stream is below water quality standards, every industrial discharger on
the lake or stream whose discharge contributes to the violation may be
required, under the permit program, to comply with the effluent guide-
lines.
B. Use of Effluent Guidelines Where no Violation of Water Quality Stanards
Can Be Established
The foregoing asserts the legality of effluent standards only for discharges
into substandard receiving waters. The problem remains as to what to do
with discharges that represent less than the best feasible treatment but
that are received into waters in which no violation of standards can be es-
tablished. No wholly satisfactory solution within the permit program exists
here. Non-degradation clauses may be used to require the best feasible
treatment when a new discharge into above-standard waters is proposed or
where existing discharges with a cumulative effect may degrade above-stand-
ard waters; and the effluent guidelines could define the minimum treatment
*/ This point is further elaborated in the attached memorandum prepared
"By Mr. Joseph.
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that would satisfy a non-degradation clause. However, apart from the lim-
ited application of non-degradation clauses, there may be no substantial ba-
sis for the use of effluent standards as binding advice to the Corps in the
permit program where no violation of water quality standards can be shown
in the receiving water. There is a similar problem in justifying EPA's im-
position of the effluent guidelines through the permit program to intrastate
waters.
Despite our probable inability to bind the Corps in such situations, I be-
lieve that we should adopt a policy of giving the Corps non-binding advice
in those situations where the waters are intrastate or where the question
is whether to permit a less-than-adequate discharge into an intrastate lake
or stream where no violation of water quality standards can be shown. This
is especially true where that advice would simply be that EPA has estab-
lished that there is a better effluent level that the discharger could feasibly
put in service -- an effluent level that EPA routinely requires where there
are substandard receiving waters.
The advisability of our following this course is underlined by the recent
decision of the Court of Appeals of the District of Columbia in Calvert Cliffs
Coordinating Committee v. Atomic Energy Commission, (CADC No. 24, 839,
decided July 23, 1971). That case holds that the NEPA requires the AEC
to give independent consideration to environmental problems when consid-
ering whether, and on what terms, to grant a construction permit for a nu-
clear power plant. The court stressed that the AEC could not rely ex-
clusively on state certifications under section 21(b), FWPCA, that the pro-
posed plants would not violate water quality standards. It pointed out (and
this is certainly true) that the fact that water quality standards will not be
violated does not mean that there will be no environmental damage, and ex-
horted the AEC and other federal agencies to go beyond the question of
whether standards will be violated, and to make their own weighing of en-
vironmental factors before determining to act, or to permit action to be
taken. I emphasize again the court's holding that the NEPA requires the
AEC to make an independent environmental determination.
The clear import of this decision, applied to the permit program, is that
the Corps may not be satisfied with EPA's advice as to violation of water
quality standards, and must make its own independent determination of en-
vironmental matters on permit applications. Moreover, the case seems
directly to hold that if the Corps seems disposed to go no further than
accepting EPA's advice on water quality standards, then by a citizens' suit
the Corps may be forced --as the AEC was forced --to make its own
independent determination. This result cannot be avoided.
Since the Corps will have to make independent determinations on applications
for permits, I think that EPA's only choice is to advise the Corps beyond
the question of water quality standards. That course is advisable from
several viewpoints. First, EPA should appear able and willing to advise
broadly on these matters beyond the admittedly limited question of whether
water quality standards have been violated: we must remain the compre-
hensively expert federal agency on environmental matters. Second, the
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Corps should be correctly advised on environmental questions that come
before it, and EPA's knowledge would help it answer these questions pro-
perly. It is true that because the advice would not be binding we could not
control the results, and to that extent it would not be our program. But
it has now been held that in any event the Corps' decision on environmental
matters is not to be limited to EPA's statement on water quality standards.
And that being so, EPA should seek to participate as fully as possible in the
Corps' decision. If our participation is of high quality, I expect that our
recommendations would be persuasive and quite likely controlling as a prac-
tical matter, at least on court review.
A good place to start would be in the area of permits for discharges into
intrastate waters and interstate waters where no violation of standards can
be established. In such cases, EPA could state that while no standard ap-
pears to be violated by the discharge, yet there is a higher level of treat-
ment that is technically and economically feasible and should be required
under NEPA. The Corps would be hard put to refuse such a recommendation.
Moreover, if EPA had done its homework, it is probable that no better
feasible level of treatment would be demonstrable. This would not be as
good as having our own way by statute or executive reorganization, but it
is better than merely observing while the Corps makes its independent judg-
ment.
§§§§§§§
TITLE: Legal Requirement Necessary to Obtain Abatement of Pullution
Under Section 10(c)(5), FWPCA
DATE: August 9, 1971
In order to establish that a particular discharge into interstate receiving
waters is subject to abatement under section 10(c)(5) of the FWPCA, it is
not necessary to show that the discharge in question is causing or would
(in the absence of other discharges) cause a violation of water quality stand-
ards. It need only be shown (1) that the receiving water in question does
not meet an applicable water quality standard or standards, and (2) that the
discharge sought to be abated contributes (to no matter how small an extent)
to that violation. (N.B. It is of course also necessary either to establish
interstate affect or obtain the governor's consent; section 10(c)(5); 10(g)(l)
and (2)).
This conclusion is supported both by the terms of section 10(c)(5) and by
the practicalities of pollution abatement. Section 10(c)(5) provides that:
The discharge of matter into such interstate waters or portion thereof,
which reduces the quality of such waters below [applicable] water quality
standards * * * is subject to abatement in accordance with the provisions
of paragraph (i) or (2) of subsection (g) of this section, except that at
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least 180 days before such abatement action is initiated * * *, the
[Administrator] shall notify the violators and other interested parties
of the violation of such standard. * * *
This section arguably means that where a receiving water does not meet
water quality standards, then any individual discharge which is a part of
"the discharge of matter" that has caused the violation is subject to abate-
ment. The section does not require that an abatement action, to be main-
tainable, must be directed against the entire discharge that has caused the
violation; rather it provides that all of the discharge or discharges respon-
sible for the violation are subject to abatement. (That the section recognizes
that more than one individual discharge may be involved is shown by the
use of the term "violators.")
Section 10(g)(i) and (2) (made applicable by the terms of section 10(c)(5))
add further weight to this conclusion. Both (g)(l) and (g)(2) use the phrase
"discharge or discharges (causing or contributing to such pollution)" in re-
ferring to the discharges that are abatable.
Any other reading of section 10(c)(5) would make its use in pollution con-
trol far more difficult and far less sensible than Congress could have in-
tended. In the Houston Ship Channel, for instance, it would be extremely
difficult to determine whether the discharge from, say, U. S. Plywood-
Champion Papers, Inc., would cause a violation of the BOD standard if
none of the other approximately 240 present dischargers of BOD in the
Channel were doing so. Nor would that be a rational inquiry, considering
the present problems in the Channel. By the same token, the abatement
of Champion Papers' daily discharge of 18, 348 pounds of BOD by itself would
almost certainly not cure the BOD problem in the Channel, as there would
still be about 250, 000 pounds of BOD dumped daily by the other dischargers.
Despite this, there should be no question that a section 10(b)(5) action
against Champion Papers alone could be sustained (and if Champion Papers
were, say, the leading resister to voluntary abatement, it might well be
boih wise and necessary to single it out).
That a particular receiving water does not meet water quality standards is
fairly easy to establish, and it is even easier to show that a particular dis-
charge contributes in some degree to an established violation. Indeed, per-
mit applications, without more, should establish the latter.
I believe that the recognition and use of this approach to section 10(c)(5)
can have at least two important effects. First, since EPA's power to give
binding advice to the Corps in the permit program is most strongly defensible
where an actionable violation of water quality standards is involved, EPA
can give such binding advice on permits for all dischargers who contribute
-to any extent to a violation of water quality standards in an interstate re-
ceiving water. This should cover perhaps the most serious instances of
pollution.
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Second, this reading underscores the effectiveness of section 10(c)(5) itself
as a pollution abatement tool. For instance, in the case of a river which
unquestionably violates water quality standards at some point, it should be
possible to go upriver of that point and serve 180-day notices upon as many
dischargers as necessary to clean it up, establishing merely that they con-
tribute to any degree to the violations. It seems to me that the dischargers
who did not than comply would have a difficult time in defending an abate-
ment action (and a single lawsuit could name them all).
§§§§§§§
TITLE: Effluent Guidelines and the Permit Program
DATE:
As you know, this Agency has for some time been involved in the develop-
ment of effluent guidelines for certain basic industries. As these guide-
lines were first developed, it was felt that they did not have sufficient tech-
nological justification to be utilized as requirements in determining whether
applications for permits from the industries covered should be granted or
denied, and for determining how permits that are granted should be con-
ditioned. However, after further technological review, we have now ar-
rived at the point where we believe that these guidelines, as they are issued,
can be used in the administration if the permit program in accordance with
the following:
1. Where the receiving waters are interstate and are below applicable
water quality standards, under the law all dischargers whose effluent
contributes to the violation -no matter how small a percentage contri-
bution any particular discharge may take -must abate the pollution to
the extent that such abatement is practicable and physically and econo-
mically feasible (see section 10(c)(5), Federal Water Pollution Control
Act). The effluent guidelines define the best level of treatment that
is practicable and physically and economically feasible for the industries
covered. Accordingly, the level of treatment specified in the effluent
guidelines will be required as a permit condition for any industry to
which the guidelines apply and which is discharging an effluent into inter-
state waters that contributes to the failure of the receiving water to
meet water quality standards.
2. Where the quality of the receiving waters is above applicable water
quality standards, virtually every State has a non-degradation standard,
which provides, in relevant part, that the quality of such waters shall
not be degraded unless the discharger can fulfill a number of require-
ments, including the requirement that he provide the best practicable
treatment under existing technology. The effluent guidelines describe
what the best practicable treatment under existing technology is for the
industries covered. Accordingly, in any State where there is a non-
degradation standard, new discharges, and present discharges which have
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a cumulatively worsening effect on the receiving water (such as a dis-
charge into a slowly flushing lake), wiU be required under the permit
program to meet at least the level of treatment specified in the effluent
guidelines.
3. Where the receiving water is interstate, or the quality of the re-
ceiving waters is above water quality standards and a non-degradation
standard is not applicable, EPA's submission to the Corps (see 33 CFR
209-131 (d)(7)) should advise of any effluent guideline that may apply to
the discharger and recommend that issuance of a permit be conditioned
on compliance with that standard. EPA's advice in such a case will
not be binding in the Corps, but we anticipate that the Corps will give
such advice serious consideration.
4. In any particular case, a permit applicant may produce evidence
tending to show that compliance with the effluent guidelines is not prac-
ticable. By the same token, in particular cases it may be that a better
level of treatment than that represented in the guidelines is practicable
for a particular applicant. In such cases, you will be required to con-
sider whether, in light of the evidence presented and in light of your
professional judgment, a deviation from the guidelines should be au-
thorized under the permit program. However, absent such evidence,
the guidelines will govern.
§§§§§§§
TITLE: Effluent Guidelines--Suggested Amendment to Preamble
DATE: July 6, 1971
SUMMARY AND RECOMMENDATION
The effluent guidelines that are presently developed for eighteen basic in-
dustries have generally been referred to in our Agency as "guidelines," and
they are so denominated in the present draft being proposed for publication
in the Federal Register. However, I am concerned that some of the lan-
guage in the preamble to the draft takes it beyond the guideline concept and
might be used as a justification for the regions to impose these guidelines
as absolute regulatory requirements, to be applied to each permit applica-
tion from the industries in question without the exercise of any independent
professional judgment as to the requirements necessary to preserve and en-
hance water quality. If the guidelines are applied in this fashion, the courts
wiU disregard our use of the label "Guidelines" and test their validity in
terms of whether we have the legal authority to impose effluent levels as
absolute regulatory requirements. For the reasons discussed below, I have
grave doubts as to the existence of such authority in EPA. Consequently,
I recommend 0) that the preamble to the guidelines be changed to reflect
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clearly their status as guidelines rather than absolute regulatory require-
ments, and (2) that at the appropriate time, the regions be cautioned that
these guidelines do not preclude the use of independent professional judg-
ment in determining the treatment levels required for each individual per-
mit applicant.
Specifically, I would amend the first full paragraph on page 3 of the draft,
to read as follows:
The proposed effluent guidelines define a minimum level of treatment
and/or control. Higher levels of treatment will be required, where nec-
essary, to meet water quality standards. These guidelines are intended
as aids to the officers of the Environmental Protection Agency in the
discharge of their duty under the Refuse Act permit program to advise
the Corps of Engineers with respect to "the meaning, content and appli-
cation of water quality standards applicable to a proposed discharge or
deposit and as to the impact which the proposed discharge or deposit
may or is likely to have on applicable water quality standards and re-
lated water quality considerations, including environmental values re-
flectedin water quality standards." 33 CFR 209.131(d)(7). These guide-
lines are not intended to replace the exercise of independent professional
judgment by the appropriate officers of the Environmental Protection
Agency as to the level of treatment required in any particular case by
applicable water quality standards and related water quality considera-
tions.
DISCUSSION
It is necessary to insure that the effluent guidelines are applied as guide-
lines, since if they are applied as absolute regulatory requirements, there
is a substantial danger that they would be set aside on the ground that EPA
has no authority to issue such regulations.
It is clear that the President does not have general power to transfer de-
cision-making authority from one agency to another. The Reorganization
Act, 5 U. S. C. 901 et seq., specifies the method whereby functions may be
transferred from one agency to another; and it is clear that the President
cannot transfer decision-making authority from one agency to another with-
out complying with the Act. See Federal Trade Commission v. Textile and
Apparel Group, et al., 410 F. 2d 1052 (B.C. Cir.), in which court enun-
ciated "the general principle that authority committed to one agency should
not be exercised by another." The court went on to state:
The reason for this is that Congress delegated to one agency certain
authority, perhaps because it feels that agency is the most capable of
exercising it * * *. The proper place for interested parties to get a
different agency * * * to handle the job is back in Congress. 410 F. 2d
at 1057-8.
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Consequently, although the Corps of Engineers has authority under the
Refuse Act to promulgate effluent standards as absolute regulatory require-
ments, such authority could not be transferred by executive order to EPA;
EPA's issuance of regulations establishing effluent requirements must de-
rive from some statutory authority residing in EPA. This conclusion is
fortified by Section 21(b) of the FWPCA, in which Congress specifically
granted EPA an advisory role--but not a decision-making role--in connec-
tion with Federal licenses for discharges into navigable waters. For EPA
to assume the authority to impose effluent levels as absolute regulatory re-
quirements would clearly go beyond the advisory role delineated in Section
2Kb).
There are two possible sources of authority in EPA's statutes for the im-
position of effluent levels as absolute regulatory requirements: 1) the re-
quirement in Section 10(h) of the FWPCA that consideration be given to
"the practicability and the physical and economic feasibility" of securing
abatement of pollution; and 2) the requirement in many water quality stand-
ards that industries install "the equivalent of secondary treatment." Both
of these facets of the FWPCA have been referred to in the preamble of the
effluent guidelines. However, I do not think they would be adequate as a
legal basis for EPA's imposing the guidelines as absolute regulatory re-
quirements.
The reference to "practicability" and "physical and economic feasibility"
in Section 10(h) is inadequate. Section 10(h) is not a grant of power to
EPA to require as a minimum the best waste treatment that is practicable
and feasible. Instead of specifying the minimum treatment that a discharger
must have regardless of water quality standards (as our effluent guidelines
purport to do), Section 10(h) indicates that what is practicable and feasible
is the maximum that can be required under the FWPCA to correct a vio-
lation cT~wafer~quality standards. Section 10(h) is thus the logical opposite
of our effluent guidelines and may even be cited as authority for their in-
validity if imposed as absolute regulatory requirements.
Nor is it satisfactory to argue that EPA may impose effluent levels as ab-
solute regulatory requirements in the guise of the defining what is meant
by "the equivalent of secondary treatment." In the first place, the coverage
of Federal-State water quality standards under the FWPCA is limited to
interstate waters, and many permit applications will come from industries
discharging into intrastate waters. Moreover, there are at least seventeen
States whose water quality standards do not impose a general requirement
of secondary treatment on industry; and in those States which do impose
this requirement, it is sometimes qualified by a definition of secondary
treatment which we have approved and which may not be consistent with the
effluent guidelines. I/ In addition, it must be remembered that water quality
I/ Mr. Rogowsky has prepared the attached memorandum and chart sum-
"marizing the water quality standards that have been adopted with reference
to secondary treatment for industry.
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standards are not exclusively Federal, but rather are State-Federal stand-
ards. Accordingly, there is serious doubt as to whether we have authority
to engage in the extensive "interpretation" that the effluent guidelines rep-
resent--and then to impose this "interpretation" as an absolute regulatory
requirement—without following the State-Federal conference procedure that
is required for a revision of water quality standards initiated by the Admin-
istrator. This is especially the case with respect to parameters of in-
dustrial discharge other than BOD and suspended solids, since the concept
of secondary treatment has traditionally applied only to BOD and suspended
solids. Thus any effluent levels required of industry with respect to other
parameters would probably be viewed by the courts as amendments to water
quality standards rather than interpretations of the term "equivalent of sec-
ondary treatment." And as amendments, they could not be adopted with-
out following the procedure required for amending water quality standards.
Finally, as you know, there is serious doubt as to whether we have the
authority to approve or adopt water quality standards under the FWPCA
that impose effluent levels as an absolute requirement, irrespective of the
condition of the receiving waters.
For all these reasons, I think we should make it clear, both in the preamble
to the guidelines and in our instructions to the regions, that the guidelines
are only guidelines for the exercise of professional judgment in each par-
ticular case, and are not intended to dispense with a necessity for the ex-
ercise of such judgment in light of the facts of each individual case.
§§§§§§§
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ENFORCEMENT CONFERENCE
TITLE: Enforceability of Recommendations of the Administrator of EPA
following an Enforcement Conference Authorized under Section 10,
FWPCA
DATE: June 11, 1973
Mr. John A. Pickens
King & Spalding
2500 Trust Company of Georgia
Building
Atlanta, Georgia 30303
Dear Mr. Pickens:
This is in response to your inquiry concerning the enforceability of recom-
mendations of the Administrator of the Environmental Protection Agency I/
following an enforcement conference authorized under section 10 of £Ee
Federal Water Pollution Control Act (FWPCA), as in effect prior to October
18, 1972, when the Federal Water Pollution Control Act Amendments of
1972 were enacted. Under Section 10, the Administrator was authorized
in cases of interstate pollution, and in certain other situations, to call a
conference of the water pollution control agencies of the States involved.
Following the conference, the Administrator was authorized to issue recom-
mendations for remedial action, with a time schedule for such action.
The recommendations themselves, however, were not directly enforceable
under the FWPCA. Instead, the Administrator was authorized to convene
a Hearing Board, which would have the power to consider the matter on the
basis of evidence presented at a public hearing, and to make recommenda-
tions to the Administrator concerning necessary remedial measures. In
the event of non-compliance with these recommendations, the Administrator
was authorized to request the Attorney General of the United States to bring
suit to abate the pollution. After a de novo trial, the court was authorized
"to enter such judgment, and orders enforcing such judgment, as the public
interest and the equities of the case may require."
It may be seen that the recommendations of the Administrator (or the Sec-
retary) following a conference were not of themselves enforceable under the
FWPCA. However, these recommendations have been widely regarded as
_J_/ By its terms, the Federal Water Pollution Control Act assigned re-
sponsibility under section 10 to the Secretary of the Interior. However,
the Secretary's functions in this regard were transferred to the Adminis-
trator of the Environmental Protection Agency by Reorganization Plan No. 3
of 1970.
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based upon thorough consideration by the States involved and by the Federal
government of needed abatement measures. They will, therefore, be care-
fully considered by the Environmental Protection Agency in issuing permits
under section 402 of the Federal Water Pollution Control Act. Data de-
veloped at an enforcement conference may, for example, assist in deter-
mining the effluent limitations needed to attain water quality standards, the
effluent limitations which would constitute the best practicable control tech-
nology currently available for a discharger or class of dischargers, and the
feasibility of interim compliance schedules.
Moreover, section 510 of the Act reserves specifically to the States the
right to establish more stringent control requirements upon dischargers than
those under the Act. Accordingly, when a State proceeds under its own laws
against a discharger, nothing in the Federal Water Pollution Control Act
stands as a bar to such an action unless the State attempts to enforce con-
trol requirements less stringent than requirements established under the
Act. In this connection, it might be noted that, where an independent basis
exists in State law for enforcement of requirements which are also embodied
in enforcement conference recommendations, the deletion from the Federal
Water Pollution Control Act of provisions for implementing these recom-
mendations in no way precludes the State from proceeding under its own
laws.
I trust that this will clarify our view of the law on this point. If we can be
of further assistance, please do not hesitate to ask.
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SECTION V PESTICIDES
OPINIONS BASED OF FEDERAL ENVIRONMENTAL PESTICIDE CONTROL
ACT (1972) (FEPCA)
TITLE: Implementation of Federal Environmental Pesticide Control Act
DATE: December, 1972
FACTS
The new pesticide law, amending the FIFRA, was enacted on October 21,
1972. The recitation in the new law that it is to be effective immediately
is hedged with a number of exceptions. One such exception (Section
4 (c)(l) is unclear both with respect to the matters covered and with re-
spect to the permissibility of accelerating the effective date involved.
Another provision (Section 4 (a)) indicates that the sections of the amend-
ed FIFRA which are intended to be effective upon enactment do not become
effective "if regulations are necessary for implementation;" instead, the
Act provides that in that circumstance the necessary regulations "shall
be promulgated and shall become effective within 90 days "from enactment
of the new law, i. e., by January 19, 1972.
QUESTIONS PRESENTED
1. (a) Does Section 4(c)(l) of the Act defer the effective date of the
requirement that "intrastate" pesticides be registered?
•A.
(b) May the Agency accelerate the promulgation and effectiveness
of regulations for registration and classification under the new law, or
must it wait the "two years" specified in Section 4(c)(l)?
2. (a) For which provisions, otherwise effective upon enactment, are
regulations "necessary"for implementation, so that such regulations
must be promulgated within 90 days ?
(b) For which other provisions of the Act should regulations be pro-
mulgated within 90 days so as to gain the advantage, in any subsequent
judicial proceedings, of the doctorine that great weight must be
accorded to an Agency's contemporaneous constriction of a new law?
3. What type of "notice of proposed rule making" may be utilized under
the Administrative Procedure Act with respect to those regulations
which the agency does plan to issue in 90 days?
ANSWERS
1. (a) While in my opinion the answer is not at all clear, a legitimate
argument can be made that the requirement for registration of intrastate
pesticides is not effective immediately but can be deferred fortwoyears.
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(b) The legislative history of the Act makes it clear that the Agency need
not wait the "two years" specified to promulgate regulations under the new
registration and classification standards and to begin registering intrastate
products and other new applications under those standards.
2. (a) Ninety-day regulations are necessary for the implementation of the
provisions set forth in Part A of the attached Appendix.
(b) Ninety-day regulations should be issued with respect to the provisions
set forth in Part B of the attached Appendix.
3. In connection with the publication of a notice of proposed rule making, the
Administrative Procedure Act establishes the option of publishing either
(1) the terms of the proposed rule or (2) a description of the subjects
and issues involved. In view of the extremely short time period involved,
the Agency should consider issuing, as its proposal, only a description of
the subjects and issues involved, rather than the precise terms of each
regulation.
DISCUSSION
r;Meaning "of Section 4(c)(l). Among the important changes effected by the
new pesticides law are (1) the extension of federal regulatory control to
products which are formulated and used within a single State ("intrastate
pesticides") and (2) the establishment of new standards for the registra-
tion and classification of all pesticides. The new law provides generally
that the amendments made thereby are effective on the date of enactment
(or within 90 days thereafter, if regulations are necessary for implemen-
tation), but then establishes a number of exceptions to that general rule.
While the meaning of certain of the exceptions is quite clear, / one of the
provisions raises two questions. Specifically, Section 4(c)(I) of the new
law states:
Two years after the enactment of this Act the Administrator
shall have promulgated regulations providing for the regis-
tration and classification of pesticides under the provisions
of this Act and thereafter shall register all new applications
under such provisions.
The question of when the requirement of registration must be implemented
as to intrastate pesticides turns on an interpretation of Section 4(c)(!),_/ for
there is no other provision that might defer that requirement. This same pro-
vision also raises the question of whether its "two-year" requirement (which
is plainly applicable to the standards for registration and which may be appli-
cable to the registration of intrastate pesticides) can be accelerated. Each of
these questions is discussed below.
For example, Section 4(c)(2) indicates that reclassification of previously
registered pesticides under the new standards must take place after two
but within four years. Similarly, the time periods for the certification
of applicators set by Section 4(c)(4)(A), (B) and (C), are quite clear, as is
the one-year delay in making effective any regulations relatingtothe regis-
tration of establishments, permits for experimental use and the keeping
of books and records (Section 4(c)(5)).
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a. Intrastate Products. My initial reading of the Act and its legis-
lative history led me to the conclusion that intrastate products were intended
to be subject to the registration requirement immediately (subject to the
proviso referred to infn., supra), I based this conclusion on the distinction
I perceive in both the old and new laws between (1) the requirement that a
product be registered and (2) the standards which must be applied in
acting upon a request for registration. In light of that distinction, and
since no regulations are needed to establish or implement the self-exe-
cuting requirement of registration, I viewed the deferral of the promulga-
tion of regulations effected by Section 4(c)(l) narrowly, i.e., as deferring
the promulgation of standards to be applied in the registration and classifi-
cation process but not deferring the requirement of registration. In other
words, I read the phrase permitting deferral of ''regulations providing for
the registration of an classification of pesticides under the provisions of
this Act" as simply covering the standards to be applied to applications
received. If this interpretation were accepted, the requirement for regis-
tration would be established by the FIFRA as newly amended (and would
cover intrastate pesticides) while the standards for ruling on all new appli-
cations (interstate and intrastate alike) would remain those set by the old
FIFRA (each of the provisions of which, by the terms of the new act, re-
mains in effect until superseded).
This interpretation is supported by the somewhat sparse early legislative his-
tory. Thus the Senate Agriculture Committee Report (S. Rep. 92-838, June 7,
1972) explained (p. 18) that Section 4(c)(l) made an "exception to immediate
effectiveness" such that "all new registrations of pesticides after such regu-
lations are promulgated shall be in accordance with regulations governing regis-
tration and classification promulgated within two years of enactment of this
Act. " This explanation does not express any intent to defer the registration
~7 One other provision does affect the timing of the availability of sanction
~ for non-registration of intrastate products. Section 4(d) provides that no
penalty may be imposed for any act or failure to act occurring within 60
days after the Administrator has issued regulations and taken such other
action as maybe necessary to permit compliance. In other words, regard-
less of when the registration requirement for intrastate products becomes
effective, no penalty for non-registration can be invoked until after the
putative registrants have been given the opportunity to apply for registra-
tion.
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requirement, but simply indicates that the new standards to be applied to appli-
cations will be deferred. The old standards remain available to be applied to
all new applications received before the new standards are effective._/
On the other hand, I cannot say that it is unreasonable to read Section 4(c)
(1) and the committee report as reflecting an intention to tie registration re-
quirements and registration standards together, referring each for the two-
year period. Moreover, this broad deferral does not create the administrative
problems that would result if intrastate products were required to be regi-
stered now under the standards for registration set by the old FIFRA, then
reregistered and reclassified after the new standards were promulgated. In
view of the apparently large number of those products, it can be argued that
Congress--had it thought of the problem--would probably not have intended
this dual processing of intrastate products. .
The lack of clarity in the statutory language and early legislative history
was confirmed by the events just prior to final passage. Recognizing that
the Congressional intent was not clear, Errett Deck wrote to the conference
committee requesting resolution of the matter. He stated that subjecting in-
trastate products to immediate registration would be an "impossible require-
ment, " that a "two-year interval" was necessary, and that the conference re-
port "should clarify" that intrastate pesticides were to be registered only after
the new standards referred to in Section 4 (c)(l) were promulgated. In re-
sponse, the conference report, in the course of discussing Section 4(d) of the
law--which makes penalties effective only after the Administrator provides
persons with the opportunity to comply (see fn., supra)-- indicated that it
had application to the situation presented by intrastate products. Thus, states
/The history of the appropriations section of the Act may cast some light
on the problem. The House version of the bill, passed in November 1971,
as well as the version reported by the Senate Agriculture Committee in
June 1972 (Section 26) contained an open-ended authorization for appro-
priations, and the Act eventually reflected that type of provision (Section
27). However, the Senate Commerce Committee version, reported on
July 19, 1972, substituted an authorization for appropriations not to
exceed $15 million for fiscal 1973, $25 million for fiscal 1974, and $35
million for 1975. The Commerce Committee explained (S. Rep. No.
92-970, July 19, 1972, p. 45) that it had agreed with EPA1 s "cost esti-
mates*** for new activities required by the bill "of" $15 million in FY
1973, $22. a million in FY 1974, and $30. 8 million in FY 1975. " (emphasis
added) The version of the bill which eventually passed the Senate auth-
orized appropriations of $40, $52, and $64 million in the three fiscal
years. These new figures, were suggested in the substitute bill worked
out by the two Senate committees, and I am advised that part of the
increase over the earlier figures was attributable to the inclusion of the
sums that would have been required to continue to conduct "old" activities.
I have not yet been able to obtain any details of the "EPA cost estimates"
which were used to justify the sums authorized for "new" activities. Those
estimates would furnish persuasive evidence--one way or the other--
on the intent of Congress concerning the registration of intrastate pesti-
cides, for certainly the timing of implementation of that sizeable task
would have had a significant impact on the cost estimates.
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the report, "Section 4(d) makes it clear "that intrastate products" would be
provided an opportunity to register under the federal law before their dis-
tribution would be prohibited."
No one would take issue with that proposition. However, that proposition
flows from Section 4(d), not from Section 4 (c)(l). But before stating that
proposition, the conference report, having just mentioned intrastate pesti-
cides, referred to Section 4 (c)(l), stating that it "gives the Administrator up
to two years to promulgate regulations providing for registration of pesticides
under the provision of H. R. 10729." Taken as a whole, this passage might
well have been intended to reflect not just that intrastate products were to be
given the opportunity to be registered before penalties were imposed, but also
that they were not to be required to be registered until the new standards were
promulgated.
In the presence of these conflicting views, both of which are supported by
legitimate arguments, I cannot advise you that you are bound by the law to
follow a particular course, or even that one interpretation is far better sup-
portable than another. Moreover, with the matter in doubt, you are likely
to be sued regardless of which interpretation you adopt. That is, if you elect
to defer the registration requirement, an environmentalist group might bring
suit seeking to require the Agency to regulate intrastate products now; if you
impose such regulation now (prior to the issuance of the new standards for
registration), the industry can test your decision either by suing the Agency
directly or by invoking their arguments as a defense to any enforcement action
attempted to be taken.
In these circumstances, you are free to base your decision on what, in your
estimation, is the policy which will best effectuate the purposes of the Act
and is in the nation's and the Agency's best interests. I would add only that,
if your decision is to defer the registration requirement, you may be able to
avoid litigation by indicating at the same time that you do not intend to utilize
the entire two-year deferral period to issue regulations (as I discuss in point
b below, this option to accelerate the two-year period is open to you). By
following this course, you would minimize the delay which would result from a
rejection of the view that intrastate products must be registered immediately.
Naturally, the probability that an environmental group would initiate litigation
is directly related to the length of delay anticipated.
b. Acceleration of two-year period for promulgating regulations.
As noted above, section 4(c)(l) of the act provides that "two years
after the enactment of this Act the Administrator shall have promulgated
regulations providing for the registration and classification of pesticides
under the provisions of this Act and (thereafter) shall register all new
applications under such provisions." Even though the word 'within" does
not appear at the beginning of this sentence, the use of the future perfect
tense--"shall have promulgated"--implies that the regulations can be pro-
mulgated in less than two years. However, it is not clear from the context
of the sentence whether the word "thereafter," which governs the time of
implementation of the regulations, refers to "two years" or to the time,
within two years, at which the regulations are promulgated.
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The legislative history of the provision makes it quite clear, however, that
acceleration of both the promulgation of the regulations and the registration
of applications under those regulations is permitted. Specifically, the House
Agriculture Committee report (H. R. Rep. No. 92-511, p. 18), after stating
that "all new registrations of pesticides shall be in accordance with regulations
governing registration and classification promulgated within two years of this
act, "goes on to state that "all registrations existing prior to promulgation
of the above regulations shall be re-registered and classified in accordance
with those regulations after two years but within four years of enactment of
the Act" (emphasis added). The Congressional intent that the regulations can
be promulgated and made effective in less than two years is further confirmed
by the conference committee report (H. R. Rep. No. 92-1540, pp. 33-34)
which states that the Administrator has "up to two years to promulgate
regulations providing for registration of pesticides" under the new law.
I need add only that the opinion that the two-year period can be accelerated
finds additional support in the language used in another effective date pro-
vision. Specifically, Congress, in setting a one-year period in Section 4(c)
(5) for regulations relating to the registration of establishments, permits for
experimental use, and the keeping of books and records, stated quite clearly
that one year after enactment 'the Administrator shall have promulgated and
shall make effective" such regulations (emphasis added). In other words, when
Congress wished to defer the effective date of regulations it knew how to use
language accomplishing that result. No such language was utilized in section
4 (c)(l). Therefore, you have the flexibility to accelerate the two-year period
for the issuance of the new standards for registration (and for the extension
of the Act to intrastate products, if you determine that the Agency will not
take the position that such extension is effective immediately).
2. "Necessary" Regulations.
Certain provisions of the new law are effective immediately, subject to the
proviso that "if regulations are necessary for the implementation of any [such]
provision" the regulations must be promulgated within 90 days from the date
of enactment of the Act (section 4(a)). The question that arises is, for which
immediately effective provisions are regulations "necessary". Of course,
there are very few statutory provisions which are implemented by adminis-
trative agencies without the prior promulgation of some sort of regulations.
Yet, strictly speaking, such regulations are not necessary, although they
might well be appropriate. Accordingly, in order that the Act's use of the
word "necessary' retain some meaning, we should distinguish between those
provisions for which regulations are truly mandatory -- i.e., the Act ex-
pressly requires regulations or the provision cannot fairly be implemented
without regulations -- and those for which they are merely permissive or
appropriate. Those provisions for which regulations are merely appropriate
become effective immediately upon enactment of the Act. We should so state
at the earliest opportunity. This is not to say, however, that we should not
issue regulations covering those provisions. There is a well-recognized
doctrine in administrative law that the courts will give great weight to an
agency's contemporaneous construction of a new statute. See, e. g., Udall
v. Tallman. 380 U. S. 1, 16. We can take, advantage of that doctrine by-
issuing, wherever possible, "appropriate" regulations within the same 90-day
time limitation under which mandatory regulations must be issued. I have
attached to this memorandum an appendix listing the statutory provisions
in each category.
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3. Publication of Proposed Regulations.
The normal agency practice in publishing proposed regulations is to publish
the actual terms of the proposal. A rarely utilized provision of the Adminis-
trative Procedure Act permits an agency, however, to give notice of proposed
rule-making by publishing either the terms of the proposed rule or a "de-
scription of the subjects and issues involved." 5U.S.C. 553 (b)(3). Although
this latter option is little used, it should not be viewed as disfavored "corner-
cutting" device. This is so for two reasons. First, the Administrative Pro-
cedure Act does not condition the utilization of this alternative upon the issu-
ance of afinding of "good cause," which it requires in other circumstances._/
Second, the legislative history of the Administrative Procedure Act contains
no indication that the Congress frowned upon the utilization of this alternative.
Indeed, the Congress drew virtually no distinction between the publication
of the actual terms of the proposed rule and the mere publication of the de-
scription of the subjects and issues involved. See the Administrative Procedure
Act Legislative History, S. Doc. No. 248, 79 Cong., 2nd Sess., p. 18
(Senate Judiciary Committee Print, June 1945); p. 200 (S. Rep. No. 572);
p. 258 (H. R. Rep. No. 1980); and p. 358 (House Proceedings). None of the
comments contained any criticism about the use of the provision under dis-
cussion; some comments simply warned that the notice of proposed rulemak-
ing must be sufficient to fairly apprise interested persons of the issues
involved so that they may present relevant data or argument. For example,
at one point it was stated that "statements of issues in the general statutory
language of legislative delegations of authority to the agency would not be a
compliance with the section "; (id., p. 258). In other words, the notice should
be "complete and specific." (id., p. 3258).
I bring this to your attention to suggest the propriety of diverting from the
original plan to have the actual text of the proposed regulations prepared for
publication 45 days after the enactment of the act, that is, on December 5,
1972. That plan contemplated a 30-day period for public comment, which
would leave the Agency 15 of the 90 days for revision of the text of the pro-
posed rules in light of the comments. The goal of publication of the text of
the rules by December 5 is a difficult one, particularly in light of the internal
and external review which those rules would have to go through prior to their
publication in the Federal Register. It seems to me that we should attempt
to utilize the document which Chuck Fabrikant is preparing for the distribution
at this Thursday's meeting of representatives of the public as the basis for a
notice to be published in the Federal Register reflecting the "subjects and
issues involved" in our proposed rulemaking. Presumably, we could issue
this document in short order, permit the planned 30-day comment period (dur-
ing which we could be working on the text of the proposed rules), and thereby
leave ourselves substantially more than the 15 days originally contemplated
to review the comments received.
Thus, "good cause" is required before there can be elimination of notice
entirely, or before the required 30-day period between publication and
effective date can be eliminated. 5 U.S. C. 553 (b)(B): 553 (d)(3).
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APPENDIX
Sections Effective Immediately - Regulations Not Strictly Necessary
Section 9
Section 10
^Section 12
Section 13
Section 14(b)
Section 16
Section 20
Section 21
Section 22
Section 23
Inspection of Establishments, etc.
Trade Secrets
Unlawful Acts
Stop Sale, etc.
Criminal penalties (regs. inappropriate)
Judicial Review (regs. inappropriate)
Research and Monitoring
Solicitation of Comments
Delegation
State Cooperation
Section Requiring Regulations to be Effective Within 90 days
Section 6
Section 14 (a)
Section 15
Section 17(b)
Section 17(c)
Section 18
Section 19
Administrative Review
Civil Penalties
Indemnities
Notice to State Department
Importation (Secy, of Treas. to issue regs. )
Exemption of Federal Agencies
Disposal and Transportation
--Portions of Section 12 only.
provisions will be supplied.
Further analysis of effectiveness of Section 12
§ §
§ § § §
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TITLE: Authority to Regulate Advertising of Pesticide Products
DATE: July 1973
QUESTION
To what extent does EPA have legal authority to regulate advertising of pesti-
cide products underthe Federal Environmental Pesticide Control Act of 1972?
ANSWER
In comparison to the FTC's statutory mandate to regulate false, misleading
or deceptive advertising, EPA's authority to control advertising of pesticide
products rests upon a weak (or perhaps non-existent) reed.
It can be defensibly argued that EPA has jurisdiction to regulate advertising
of pesticide products on two grounds. One theory is premised on EPA's autho-
rity to approve all claims made in conjunction with registration of a pesticide
and to move against any claims made as a part of the distribution or sale of a
registered pesticide which substantially differ from claims made for the pesti-
cide during the registration process. The second theory is that EPA's power
to regulate labels and labeling extends to advertising.
However, should the advertising questionbe litigated, a court might likely hold
that EPA has general jurisdiction over labeling but can only regulate advertis-
ing if a pesticide product registered for restricted use is advertised without
giving its classification. Accordingly, the FTC would have exclusive juris-
diction over false, misleading or deceptive advertising.
At best, EPA would have concurrent jurisdiction with the FTC to regulate
advertising of pesticide products, since Congress evidently did not intend EPA
to occupy the pesticide advertising field. Thus, the knotty problem would re-
main: which agency could best fill the breach and protect the consumer from
deceptive advertising?
In short, there is no clear legal answer to the EPA/FTC jurisdictional dispute
over regulation of pesticide advertising. The FTC position, however, seems
to have more clout.
DISCUSSION
The jurisdiction of the Federal Trade Commission to control false or deceptive
advertising is well established. [15 U.S. C. 45(a)(l)]. Nothing in the Federal
Environmental Pesticide Control Act of 1972 (hereinafter "the Act ) [7 U.S. C.
136a - 136y; P.L. 92-516] seems to curtail the FTC's authority to regulate
advertising of pesticide products. Accordingly, this memorandum will proceed
on the assumption that, regardless of EPA's jurisdiction over pesticide pro-
duct advertising, the FTC does have authority to control such advertising.
EPA could rely on at least two theories to establish concurrent jurisdiction
with the FTC to regulate advertising of pesticide products. For ease of identi-
fication, the theories will be denominated "the claims approach and the
labeling approach. "
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a. The Claims Approach
Section 3(c)(l)(C) of the Act requires each application for registration of a
pesticide to include "a statement of all claims made for it. " Thus, as part of
the registration procedure, each application must detail all claims that will be
made in connection with a particular pesticide. The applicant bears the burden
of proof to substantiate claims made for the pesticide by test data. In fact, a
pesticide may not be registered until the Administrator determines that the
pesticide's composition is such as to warrant the claims for it. [Section 3(c)
(5)(A)]. This statutory scheme is buttressed by section 12(a)(l)(B), which
makes the distribution, sale or delivery of any registered pesticide unlawful
if any claims made for the pesticide as a part of its distribution or sale sub-
stantially differ from any claims made for it in the registration statement.
Thus, EPA can invoke stringent sanctions against any person who sells, distri-
butes or delivers a registered pesticide if claims made in the distribution or
sale of that pesticide substantially differ from those included in the registra-
tion statement. This provision may apply to "claims" made in advertising.
Congress, however, used the words "distribution or sale" instead of the word
"advertising" in section 12(a)(l)(B). Section 12(a)(2)(E) provides that it is un-
lawful for any person who is a registrant, wholesaler, dealer, retailer or other
distributor to advertise a pesticide product registered for restricted use with-
out giving its classification. The negative implication of the use of "advertise"
in one section and not in the other perhaps indicates that the words of art
"distribution or sale" should be read more narrowly than advertising in general.
"Distribution or sale" may only connote claims made in graphic or written
material accompanying the pesticide. [Cf. Definition of "labeling, " section
If section 12(a)(l)(B) does apply to "claims" made in advertising, a salient
question is whether that section also provides EPA with a handle to regulate
all deceptive and misleading advertising of pesticide products. The "claims"
requirement would appear to limit EPA from exercising jurisdiction over
advertising which, although forged from claims identical to the ones submitted
with the registration application, is still misleading or deceptive. The totality
of an advertisement may, after all, because of its trapping convey a message
beyond the literal language contained in it. The Lysol case, which will be
discussed in more depth later in this memorandum, presents this issue in a
concrete manner.
Arguments spawned by the meaning of claims substantially different from ones
originally preferred in registration applications could widen this potential gap
in EPA jurisdiction over deceptive or misleading advertising into a veritable
canyon. [Section 12(a)(l)(B)]. Parsing the language of the original claim might
not make the claim substantially different, but nuances could produce a decep-
tive advertisement. EPA would be powerless to attack misleading advertising
unless "claim" means "advertising'^ under the Act, and that does not seem to be
the case. As noted previously, Congress specifically used the word "advertise"
in one provision of the Act [section 12(a)(2)(E)], and could have easily sub-
stituted "advertisement" for "claim" in other places.
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In sum, at first blush the "claims approach" appears to grant EPA jurisdic-
tion to regulate advertising of pesticide products, or at least "claims" made
in such advertising. However, there may be some question whether section
12(a)(l){B) applies to advertising. Even if the provision does encompass ad-
vertising, EPA could not control deceptive advertising formed from claims
identical to or not substantially different from ones submitted in the registra-
tion application. Thus, the claims approach does not provide a sufficient
statutory foundation for EPA to regulate advertising in general, but does allow
the agency to police contradictory claims made for pesticide products.
b. The Labeling Approach
Henry Korp in his memorandum of March 5, 1973, posed the question: "To
what extent does the labeling authority under FIFRA extend to regulation of
advertising claims?"
Section 2(p) of the Act defines label and labeling as follows:
(1) Label. -- The term "label" means the written, printed, or graphic
matter on, or attached to, the pesticide or device or any of its containers or
wrappers.
(2) Labeling. --The term "labeling" means all labels and all other written,
printed, or graphic matter --
(A) accompanying the pesticide or device at any time; or
(B) to which reference is made on the label or in literature accompanying
the pesticide or device, except to current official publications of the Environ-
mental Protection Agency, the United States Department of Agriculture and
Interior, the Department of Health, Education, and Welfare, State experiment
stations, State agricultural colleges; and other similar Federal or State insti-
tutions or agencies authorized by law to conduct research in the field of pesti-
cides.
The key question againbecomes whether the term "label" or "labeling" encom-
passes advertising in general. The limitation of "written, printed, or graphic
matter" would not appear to include radio and television commercials, except
in highly unusual cases. If this definitional roadblock could be overcome^
however, EPA would be home free by focusing on the term of art "misbranded. "
A pesticide is misbranded "if its labeling bears any statement, design or
graphic representation relative thereto or to its ingredients which is false or
misleading in any particular. " [Section 2(q)(l)(A)]. Pursuant to section 12(a)
(1)(E) it is unlawful for any person to distribute, ship, or sell any pesticide
which is misbranded. Accordingly, EPA could forcefully assert jurisdiction
over labeling--advertising that is false or misleading in any way. The question
of whether labeling can be interpreted to mean advertising, then, is well worth
pursuing in depth. */
*/ For example, the FDA's experience in this area should be scrutinized.
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c. Comparison of the Claims Approach and the Labeling Approach
The claims approach vests EPA with jurisdiction to regulate advertising "claims"
which substantially differ from those preferred in the registration application.
There maybe some doubt, however, whether claims made as part of the distri-
bution or sale of a pesticide are equivalent to claims made in advertising.
The claims approach also appears to contain inherent jurisdictional gaps,
both as to claims not substantially different from ones submitted in the regis-
tration application and also for deceptive or misleading advertising which
nevertheless parodies the approved label.
The labeling approach can only be effective if threshold definitional hurdles are
overcome, i. e. that labeling can be stretched to mean advertising. However,
once this barrier is passed, EPA would obtain general jurisdiction over any
false or misleading advertising by focusing on the definition of misbranded.
Neither approach is entirely satisfactory standing alone; the best theory would
be to weave a statutory web by plucking the best from both theories. Perhaps
in this manner EPA could assume full concurrent jurisdiction with the FTC
to control advertising of pesticide products. The knotty practical problem
would still remain, however, of establishing each agency's fiefdom.
The Lysol Case
This memorandum would be incomplete if the pesticide advertising cases pend-
ing before the FTC were not mentioned. The Lysol dispute, which has advanced
to the hearing stage [FTC Docket No. 8899], presents some particularly in-
teresting questions.
The kernel of the FTC Lysol complaint alleges that television advertising has
represented that one should use Lysol brand disinfectants to kill influenza
virus, and other germs and viruses, on environmental surfaces and in the air,
and that such use will be of significant medical benefit in reducing the incidence
of colds, influenza, and other upper respiratory diseases within the home.
According to the complaint, however, germs and viruses on environmental
surfaces do not play a significant role in the transmission of colds, influenza,
and other upper respiratory diseases, the use of Lysol brand spray disinfectant
does not eliminate significant numbers of airborne germs and viruses, and
such use will not be of significant medical benefit for the prevention of the
foregoing diseases. The alleged representations, therefore, are claimed to
be false, misleading, and deceptive.
Lysol, besides denying the allegations, raised three affirmative defenses, the
first of which is particularly in point. In essence, Lysol argued that all
labeling of Lysol brand disinfectants had been reviewed and accepted by EPA,
and that the advertising challenged in the complaint had at all times conformed
with such labels. In a nutshell, Lysol contended that the FTC should not
assert jurisdiction over territory already covered by EPA.
The FTC administrative law judge dismissed Lysol's arguments, holding that
the complaint concerns advertising, not labeling or labels. The judge further
opined that registration of Lysol labels did not constitute EPA approval of the
advertising promoting them. [Prehearing conference order, FTC Docket No.
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8899, p. 2]. The judge further ruled that even if the advertising conformed
to the labels, it still could be deceptive under the FTC allegations. To bolster
his decision, the judge cited EPA regulations disclaiming any interest in ad-
vertising that will "never be used as labeling, " and which state that it is EPA
policy for advertising to be handled by the FTC. [40 CFR §162. 107(d)].
The Lysol controversy presents such issues as:
(1) Can advertising ever be false or misleading if label claims are literally
repreated? (Probably, yes)
(2) If such advertising was held to be false or misleading, would this necessa-
rily affect the legality of a registration ? (Probably, no).
Further, the Lysol case demonstrates the necessity of revising EPA's regu-
lation governing advertising of pesticide products.
Pesticide Advertising Regulation
Any discussion of EPA/FTC authority to regulate advertising of pesticide pro-
ducts calls into play EPA's regulation interpreting FIFRA with respect to
advertising. [40 CFR §162. 107]. This nettlesome regulation generates more
questions than answers. The contradictory provisions shroud EPA's position
in ambiguity, and although this may have been the regulation's purpose when
drafted, prompt revision would seem to be in EPA's best interest.
For example, the administrative law judge in the Lysol controversy cited the
regulation to bolster the FTC's contentions. Particularly damaging to EPA's
cause is the sweeping statement that "in general, the policy is for advertising,
other than labeling, to be handled by the FTC. " [40 CFR §162. 107(d)]. Even
so, EPA can point to statements in the regulation that arguably buttress its
jurisdiction over all advertising of pesticide products. [See 40 CFR §162. 107
(a)].
RECOMMENDATION
Hopefully, the upshot of this memorandum will be a refined consideration of
remaining legal questions and a thorough policy consideration of the thorny
practical ramifications of the various alternatives for regulating pesticide pro-
duct advertising with or without FTC participation. The cornerstone of any
final decision should be a wholesale revision of 40 CFR §162.107 to reflect
actual EPApolicy. A coherent regulation would well serve all parties, includ-
ing the pesticide consumer.
§§§§§§§
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TITLE: Experimental Use Permits
DATE: February 5, 1973
You have requested per your memorandum of January 30, 1973, a legal opinion
on the following questions:
QUESTIONS
(1) Whether federal and state government agencies are exempt from Section 5
of the FIFRA, as amended by the FEPCA, pertaining to experimental use per-
mits.
(2) Whether, regulations promulgated under Section 5 can exempt federal and
state agencies.
ANSWER
The Office of Pesticides has taken the position (as published in 38 F. R. No. 5,
January 9, 1973, "Implementation Plan, Pesticide Control Act") that until the
"emergency conditions" exemptionfor government agencies, contained in sec-
tion 18 of the FEPCA, is implemented by the promulgation of procedural regu-
lations, the 1947 FIFRA remains in effect as to public officials. Pursuant
to this position, the previous exemption from the experimental use permit
requirements for certain government agencies (Section 7(a)(4)of the old FIFRA)
remains in effect, pending the promulgation of procedures for implementing
Section 18 of the FEPCA.
As to your second inquiry, it is:our opinion that regulation under Section 5
of the FEPCA providing a blanket exemption for government agencies would be
impermissible. Section 5 provides for no such exemption. Nor are govern-
ment agencies as such included within the exemptions to penalties under Section
12, Unlawful Acts. <
Because Section J.8 is the only provision of the Act which expressly provides
for exemptionfor government agencies, a strong presumption exists that Con-
gress intended to exempt government agencies from the Act's substantive
requirements only in accordance with the procedures of that section. Any
government agency exemption from Section 5 or other provisions of the Act
must be provided under the authority and subject to the specific conditions of
Section 18 and regulations promulgated thereunder.
In addition, since government agencies will be required to register pesticides
under Section 3 of the FEPCA (except insofar as exemption from registration
by "emergency conditions" under Section 18), it would seem that the inclusion
of such agencies within the experimental use permit requirements would be
necessary, as well as prudent.
§§§§§§§
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TITLE: Must a Request for an Advisory Commitee be Automatically Granted
in Pending Cancellation Proceedings?
DATE: December 27, 1972
We have been asked to prepare a memorandum on the Agency's right, in a
cancellation proceeding, to treat a registrant's request for an advisory com-
mittee, made before the effective date of the Federal Environmental Pesticide
Control Act of 1972 (FEPCA), as a request for a public hearing under the new
law, where reference to an advisory committee will be in the discretion of
the hearing examiner. This memorandum, reflecting our view that the Agency
need not grant such requests for direct advisory committee review, is sub-
mitted in response to that request.
DISCUSSION
1. The Legal Background
The law is clear that unless the legislature has expressed a contrary intention,
courts will regard a change in the procedural or remedial aspects of a statute
as immediately applicable to existing causes of action, and not merely to those
which may accrue after the statutory amendment.
The case most closely in point is probably Turner v. U.S., 410 F. 2d 837
(5th Cir., 1969), where the Court held that changes in the administrative
procedure of the Selective Service System which were enacted while appellant's
case was pending were immediately applicable.
Turner's local board denied his claim for Conscientious Objector status. Turner
appealed this action to his State board on May 26, 1967. Under the Selective
Service Act of 1948, then in effect, upon the filing of an appeal in any Cons-
cientious Objector case, the Department of Justice was obligated to conduct
an independent inquiry and a hearing on the claim and to make a report to the
State appeal board. Its recommendations were to assist that board in reaching
its final determination.
On June 30, 1967, after Turner had perfected his appeal, Congress amended
the Military Selective Service Act, deleting the procedure for advisory review
by the Department of Justice. Turner was denied his hearing before the De-
partment of Justice; that Department refused to inquire further into his case
and to make recommendations to the State appeal board.
The court rejected Turner's contention that he had a vested right to the parti-
cular form of administrative procedure in effect on the date of his appeal.
The administrative provision of the amended statute was "merely a specialized
procedure for assisting an appeal board to reach a more informed judgment. . .
and did not create substantive rights for claimants." (id., at p. 841).
The court stated that the general legal principle of applying changes in proce-
dural rights to all pending cases defers only to a contrary Congressional
intention, expressed in the statute or, if the Act is unclear, in the legislative
history. The court held that a purpose of amending the Selective Service Act
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had been to avoid substantial and unnecessary delays caused by the numbers of
such Justice Department hearings without corresponding significant benefits.
The statute and the legislative history reflected no reason why this Congres-
sional purpose should not be directly and immediately implemented by applying
the new procedure to pending cases.
U.S. v. Haughton. 413 F. 2d 736 (9th Cir. 1969), was a very similar case.
Although Haughton had appealed the denial of his Conscientious Objector claim
over one month before the adoption of the 1967 Selective Service Act, the Court
stated that the procedural changes in the law were immediately applicable to
pending cases and that he was not entitled to Justice Department review.
In that case the court deferred to the interpretation given the statute by the
administrative agency. When Congress enacted the 1967 Act, removing the
advisory role of the Department of Justice, that Department had returned all
unprocessed files of Conscientious Objector claimants, even though they had
been received prior to the adoption of the new statute. In sustaining this
action, the court cited with approval Udall v. Tallman. 380 U.S. 1(1965) and
quoted its statement that "When faced with a problem of statutory construc-
tion. . .", a court should show "great deference to the interpretation given the
statute by the officers or agency charged with its administration."
The holdings in these cases rest on precedents established by the Supreme
Court.
In Thorpe v. Housing Authority of the City of Durham, 89 S. Ct. 518(1969),
the Housing Authority, acting under existing regulations of the U.S. Depart-
ment of Housing and Urban Development, proceeded to evict Thorpe. After
the initiation of eviction proceedings but before Thorpe had been legally re-
moved, HUD changed its procedural rules to require that a hearing be granted
tenants subjected to eviction. The Court ruled that the regulation was appli-
cable to all pending cases.
In Hallowell v. Commons, 239 U.S. 502 (1916) a suit to determine Indian
heirship was pending in federal court when Congress enacted a law vesting in
the Secretary of the Interior jurisdiction over such suits. Justice Holmes
held that because the statute made no exception for pending litigation, this
suit must be sent to the Department of Interior for resolution. To do so
breached no substantive right, but simply changed the tribunal which was to
hear the case and the procedures that would apply.
i. '
In these cases, immediately applying procedural requirements made far more
of a difference to the parties than it would under FE PC A. The two selective ser-
vice cases upheld the elimination of a previously mandatory inquiry; Hallowell
changed the nature of both the forum and the procedures from judicial to acT-
ministrative and specifically eliminated judicial review; and Durham added a
hearing that had not previously been required. By contrast, FEPCA neither
eliminates any proceeding outright nor changes the nature of any forum. It
simply changes what was always an advisory proceeding from mandatory to
discretionary.
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2. FEPCA Itself
Nothing in the purpose, legislative history, language or structure of FEPCA
suggests an intent to vary the normal rules of statutory interpretation and make
the procedural requirements of the old FIFRA applicable to pending cancel-
lations. In fact, all indications are to the contrary.
a. Purpose and Legislative History. Under FIFRA prior to the 1972
amendments, a person adversely affected by the Administrator's action in
cancelling a pesticide registration could require that a scientific advisory
committee be impanelled to review the issues raised by an order.
The committee had to have completed its deliberations and delivered its report
and the Administrator had to have acted on it before the proceedings could
move on to their next stage, which was a formal hearing.
Under Section 6 of the new FIFRA the mere motion of a registrant no longer
automatically requires the impanelling of a scientific advisory committee.
Rather, a registrant adversely affected by the Administrator's Order is entitled
as of right to a public hearing. The issues will be formulated before a hearing
examiner and scientific evidence will be offered. Before the close of the
hearing record any party may request the Hearing Examiner to refer the re-
levant questions of scientific fact to a Committee of the National Academy of
Science for its report and recommendation. When in the Hearing Examiner's
judgment this action is necessary or desirable, he may grant such a request.
The purpose of this change is to avoid the unwarranted, lengthy delays occa-
sioned by the old procedure. Advisory committees were too often routinely
requested when in fact such prolonged review of the scientific issues was un-
necessary to the proper resolution of a case, duplicative of evidence indepen-
dently adduced at public hearing and was interposed merely for purposes of
delay.
Under FEPCA these costs in terms of delay will be undertaken when they are
warranted by the scientific benefits to be gained from appointing such a panel
of review and recommendation. The public hearing process will help to clarify
which scientific issues, if any, are in controversy and will help determine
which issues can be resolved by impanelling an advisory committee.
This purpose was underlined by the House Agriculture Committee in its report.
It said that one main purpose of the changes was "to avoid frivolous and non-
germane issues from [sic] burdening the hearing and review process " H. R.
Rep. No. 92-511 (92d Cong. 1st. Sess.MSept. 25, 1971) p. 14. Yet the lan-
guage being discussed there was not as strong as it was in the final statute.
The House Bill required all relevant questions of scientific fact to be referred
to an NAS Committee "Upon the request of any party or when in the hearing
officer's judgment it is necessary or desirable" ^emphasis supplied). The Con-
ference Committee changed the underlined "or" to "and1 .
Even stronger objections to the way the advisory committee provision functioned
under the old FIFRA were made by witnesses before the various committees
that considered FEPCA. See, e.g., Report of Hearings before the Senate
Subcommittee on Agricultural Research and General Legislation, Federal En-
vironmental Pesticide Control Act, (March 23-26, 1971).
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In short, Congress in changing the advisory committee provision meant only
to eliminate unnecessary delay while preserving all the substantive advantages
of expert review of it. This purpose can only be fully served by putting the new
provisions into effect as quickly as possible.
b. Language and Structure. Section 4(a) of FEPCA provides that all
the provisions of the new law shall become effective upon enactment except as
otherwise provided. Though the remainder of Section4 indicates that Congress
considered the question of the effective dates of various sections in detail, there
is no mention of the advisory committee provision. It therefore falls under the
first paragraph and became effective immediately.
§§§§§§§
OPINIONS BASED ON FEDERAL INSECTICIDE, FUNGICIDE AND
RODENTICIDE ACT
TITLE: Advisory Committee's Release of Submission Transcripts
DATE: January 3, 1972
Dr. Richard L. Doutt
Chairman
Advisory Committee on Aldrin and Dieldrin
Environmental Protection Agency
12th & Independence Avenue, S. W. (Rm. 3119)
Washington, D. C.
Dear Dr. Doutt:
I have been asked for an opinion as to whether the Advisory Committee on
Aldrin and Dieldrin is required to provide the public, on request, with copies
of written submissions and of transcripts of oral presentations made to the
Committee by interested parties.
As I understand the facts, the Environmental Defense Fund has made such a
request. Furthermore, at least one registrant has stated through its counsel
that it does not object to the public availability of the material in question, as
long as the submissions of all other parties are equally available.
Section 4. c of the Federal Insecticide, Fungicide, and Rodenticide Act pro-
vides in pertinent part:
"All data submitted to an advisory committee in support of a petition under
this section shall be considered confidential by such advisory committee...."
Accordingly, I do not believe you are authorized to release submissions or
transcripts to the Environmental Defense Fund or to any other person that may
request them, at least not until the party submitting the data involved has ex-
pressly consented to its release. I note that the only registrant which has ex-
pressed itself in connection with the Environmental Defense Fund's request
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has attached a condition to its consent. Your Committee is not in a position
to honor that condition, since you cannot agree to make available to that regis-
trant, or to other persons, data submitted to your committee by other parties
until they have consented to its release themselves.
§§§§§§ §
TITLE: Section 14(a) of FIFRA and Abbreviated Hearing
DATE: February 12, 1973
Your office has requested an answer to the following questions:
(1) Whether, under Section 14(a) of FIFRA, as amended, and abbreviated
hearing can be used to impose a civil penalty for violation of the Act;
(2) What procedural devices can be instituted, if any, which would reduce
the need for hearings in civil penalty cases.
APA Hearing Necessary
Section I4(a)(3) of the FIFRA, as amended, requires that, a civil penalty be
imposed only after notice and opportunity for a hearing. It is our opinion
that this section of the Act requires a hearing in accordance with the Admini-
strative Procedure Act (5 U. S. C., §556), unless the respondent waives the
right and agrees to some sort of an abbreviated hearing. The trial type pro-
ceedings of the APA apply to any determination required by statute to be made
on the record after notice and opportunity for hearing (5 U. S. C. §554). While
Section 14(a) of the FIFRA does not expressly require that the civil penalty
hearing be "on the record, " the legislative history of the APA (See H. R. Rep.
p. 51, ftn. 9; Sen. Doc. #248, 79th Cong., 2d Sess. (1946)) and the Attorney
General's Memorandum on the Administrative Procedure Act hold that, if a
statute requires that a determination of adjudicatory fact be made after a
hearing, a. presumption arises that Congress intended the determination to
bebasedon evidence adducedat thehearing, i.e. "onthe record." This pre-
sumption would trigger the requirements of APA, unless the statute or the
legislative history of FIFRA expressed a contrary Congressional intention.
(Also seeTaggBros. and Moorheadv. U.S., 280 U. S. 420; and Won Yan Sung
v. McGrath, 339 U. S. 43.)
The legislative history of the FIFRA is not helpful in defeating this presump-
tion. Section 16(b) of the Act actually reinforces the conclusion that an APA
type hearing is necessary. Section i6(b) requires that the Courts of Appeal
have exclusive jurisdiction of an appeal of an Agency determination made after
a hearing. One method of ascertaining Congressional intention to require an
APA trial-type hearing is to determine what type of judicial review the statute
provides. If judicial review of agency determinations of adjudicatory facts is
in the district courts - trial de novo is possible, an agency record is unneces-
sary for judicial review and arguably Congress intended that an APA pro-
ceeding not be held at the agency level. Similarly, if judicial review of
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adjudicatory determinations is in the courts of appeals, a trial de novo is im-
possible, and agency record is necessary for effective judicial review, and
the strong implications is that Congress intended an APA type hearing at the
agency level.
Settlement. ,
A formal settlement regulation might reduce the number of hearings.
Once a citation had been issued for violation of the Act, the Office of En-
forcement and the Respondent could negotiate a settlement agreement, includ-
ing stipulations of fact as to the circumstances of the violation, a statement
of agreement as to an appropriate civil penalty and other remedial action
under the Act, and a statement of reasons as to why the proposed settlement
serves the interests protected by the FIFRA. In addition, if no agreement
can be reached on the size of penalty the statement 'of reasons would contain
argument by both parties on the question of penalty and on the issues which
the Administrator is required to consider in determining a penalty (Sec. 14(a)
(3)). Each party would have to agree to be bound by the Administrator's
determination on the penalty issue.
This settlement agreement would be submitted to the Administrator or the
Judicial Officer for approval or disapproval. A case, once a citation has been
issued, can not be withdrawn, dropped or settled without a final order of the
Administrator. If the settlement were approved, a final order would be en-
tered and the case terminated without the need for a hearing. If the settle-
ment were not approved, the parties could either rework the settlement
agreement to comply with the Administrator's (Judicial Officer's) objections
or the respondent could receive a public hearing under the Act.
Following is a suggestion as to how regulations, embodying a settlement pro-
cedure, might read:
"Settlement Procedure.
No case pending under Sec. 14 of the FIFRA, as amended,
shall be disposed of or modified without an order of the
Administrator (Judicial Officer). All parties to any case in
which a settlement or compromise is proposed shall file with
the Administrator (Judicial Officer) a written statement,
signed by the parties, or their authorized representative,
containing a stipulation of facts and outlining the nature of,
the reasons for and the purposes to be accomplished by the
settlement. Said statement shall contain a statement of
reasons as to why the proposed penalty or other remedy
serves the public interest protected by the FIFRA, taking
into account the appropriateness of the proposed penalty to
the size of the business concerned, the economic reasonable-
ness of the proposed penalty, and the gravity of the violation.
The Administrator shall have the right to require that any or
all of the parties appear before the Administrator to answer
inquiries relating to the proposed disposition or, if the par-
ties stipulate to the facts surrounding the violation but differ
as to the amount of the proposed penalty, for the purpose
of oral argument on the issue of penalty.
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TITLE: Must EPA Require a Foreign Registrant to Designate a Domestic
Agency
DATE: June 23, 1972
Section 25(a) of the FIFRA as amended by the FEPCA authorizes the promul-
gation of regulations to carry out the provisions of the Act. The courts have
construed such a general delegation of power in other statutes as enabling
an agency to adopt all regulations (procedural and substantive) which are
compatible with the statutpry purpose and necessary to the effective enforce-
ment of the Congressional scheme. See American Trucking Ass'ns, Inc. v.
U. S., 344 U. S. 298; Ciba-Geigy Corporation v. Richardson, 446 F 2d.
465 (C.A. 2, 1971); National Broadcasting Co. v. U. S., 319 U. S. 190.
In American Trucking the court held that the Interstate Commerce Com-
mission could regulate the trip leasing of vehicles despite the absence of
specific statutory authority to control such operations. The requisite au-
thority was found in section 204(a)(6) of the Interstate Commerce Act, (49
U.S.C. sec. 301) which grants the ICC power to adopt regulations for the
administration of the statute. The Court stated that the regulation in issue
was necessary to implement the Congressional regulatory scheme. Other-
wise the unquestioned authority of the ICC to regulate areas specifically
defined in the statute would be defeated.
Section 25(a) of FIFRA is a general delegation of regulatory authority very
similar to that in the Interstate Commerce Act. By requiring that a fore-
ign firm designate a domestic representative for purposes of registration,
the suggested regulation would assure the availability of a party whom may
be enforced the environmental safeguards which are the object of the Act.
Such a regulation would also facilitate administration of the Act by assuring
the proximity of a person who can speak on behalf of a foreign applicant
in all registration matters. Thus, the proposed regulation of foreign regis-
trants clearly meets the standards of American Trucking (supra). It tends
to implement the regulatory scheme of the Act; it is not inconsistent with
the statutory purpose; and it is necessary to the effective enforcement of the
statute.
In addition, the suggested regulation can be supported on the ground that it
is necessary if the Agency is to obtain from foreign registrants the book-
keeping information required to enforce the Act. Section 8(b) permits
Agency inspection of records relating to the type and quantity of pesticides
produced and to the delivery, movement or holding of these pesticides.
Without the proposed regulation over foreign producers the inspection of
these records would not be practical (although it may be legal, on foreign
soil). Effective enforcement of the Act against foreign producers whose
pesticides are registered and distributed in the United States requires that
they maintain domestic agents to act as repositories of the necessary rec-
ords, and a regulation requiring such can be promulgated under Section
25(a).
Finally, although the legal basis of the suggested regulation is not neces-
sarily strengthened by the fact that other agencies have taken a similar
course of action, similar regulations can serve as a model, if not a pre-
cedent, for the Agency's rule-making as to foreign registrants.
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Section 25(a) of the FIFRA is a general delegation of authority very similar ,
to section 371(a) of the Food, Drug and Cosmetic Act and to section 78w(a)
of the Securities Exchange Act of 1934.
The FID requires that a person registering a new drug must reside or have
a place of business in this country or be represented by an agent who resides
or maintains a place of business in the country (21 CFR 130.4(a)). Also the
Food, Drug and Cosmetic Act allows a foreign exporter to obtain an exemp-
tion from the Act for a drug shipment to this country which is to be used for
"investigational purposes" (21U.S.C. 301; 355(i)). In order to qualify for
the exemption, a foreign exporter must comply with regulations promulgated
by the FDA, one of which requires the application to be signed by the drug
importer acting as agent of the foreign exporter. By regulation, this agent
must assure compliance with the substantive requirements of an applicant
for the statutory exemption (21 CFR 130. 3(b)(2)). The FDA adopted these
regulations under section 371(a) of that Act, which authorizes the Secretary
to adopt regulations for the "efficient" enforcement of the statute.
The SEC has promulgated a regulation applicable to non-resident investment
companies and advisers who register in this country under the Investment
Advisers Act of 1940. In order to register, these investment advisers must
furnish the SEC with a written, irrevocable consent and power of attorney,
designating the SEC as agent of the registrant upon whom process, pleadings
and other papers may be served in any proceeding arising under the federal
securities laws (17 CFR 230.173). This regulation is based on 15 U.S.C.
78w(2) which grants the SEC power to make all rules necessary to execute
functions otherwise vested in it by law.
s s s § s s- s
TITLE: DDT Administrative Litigation
DATE: March 15, 1971
FACTS
As you know, the Pesticides Regulation Division of this Agency issued notices
of cancellation (PR Notice 71-1) for all remaining registrations of economic
poisons containing DDT in late January, 1971, under the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. 135-135k) [hereinafter the FIFRA].
In response thereto, 42 registrants have filed objections and requested a
public hearing pursuant to section4. c of the FIFRA (7 U.S.C. 135(c)). Also,
the largest manufacturer of DDT in the United States, Montrose Chemical
Corporation of California, has filed a petition under section 4. c requesting
referral of this matter to an advisory committee. I/
T7 In addition, one fod processor, H. P. Cannon & Sons, Inc. of Bridgeville,
Delaware, has filed objections arid a request for public hearing as a user
of DDT (Cannon is not a registrant under the FIFRA). There are also
outstanding from a previous cancellation action by the Department of
Agriculture a petition for referral to an advisory committee by Crop
King Company in Washington State, and objections and request for a pub-
lic hearing by Lebanon Chemical Corporation, another large manufacturer
of DDT.
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QUESTION
May the public hearings be conducted simultaneously with consideration of
this matter by the advisory committee ?
ANSWER
Yes.
DISCUSSION
Section 4. c of the FIFRA gives a registrant the right to request a public
hearing or referral to an advisory committee. No provision is made for the
now common situation in which two or more registrants are affected by the
same notice of cancellation. The Department of Agriculture practice in this
situation was to move that requests for public hearings be held in abeyance
pending the report and recommendations of the advisory committee. (This
was done in the lindane cancellation.)
While the above procedure appears most reasonable, it does raise problems
in regard to the DDT litigation. One of the common allegations of the anti-
DDT forces is that the government has dragged its feet for years in bringing
the DDT issue to a resolution. Simply constituting an advisory committee
to consider DDT can consume much time. 2] The 2,4, 5-T Advisory Commit-
tee report and recommendations will be submitted a year after the initial
petitions were filed. It may be possible to use the DDT Committee being
constituted for Crop King Corporation to consider the PR Notice 71-1 issue
also. Even after this, section 4. c provides that the Administrator must issue
another order within 90 days, petitioners have 60 days to then file objections,
and only then can the matter go to public hearing. All the while the outstand-
ing initial requests for public hearings are held in abeyance.
It does not appear from the statute or the legislative history that the Congress
specifically considered this matter. However, there is nothing in the statute
that would preclude concurrent proceedings where different registrants had
asked for different procedures in regard to the same notice of cancellation.
In the event the Agency does conduct the proceedings simultaneously, it is
entirely possible that registrants adversely affected by the order issued follow-
ing public hearing may seek judicial review in an appellate court under sec-
tion 4. d of the Act prior to completion of the advisory committee proceeding
or issuance of the order by the Administrator. In such event, it appears likely
that such a court might well issue a stay order pending the completion of the
proceedings involving the registrant who requested the advisory committee.
Therefore, we conclude that legally this Agency can immediately move toward
public hearings for these 42 registrants, while moving concurrently to con-
stitute an advisory committee for the other registrant.
27 Constituting a 2, 4, 5-T Advisory Committee took 8 months, and a Mercury
Seed Treatment Committee 4 months. These were expeditiously consti-
tuted, as compared to other committees because of concurrent court liti-
gation. Simply stated, at the present time the Agency does not have the
capacity to consititue advisory - committees expeditiously, say within two
months of a petition.
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PESTICIDE ACCIDENT SURVEILLANCE SYSTEM
TITLE: Implementation of the Pesticide Accident Surveillance System
DATE:
QUESTIONS
You have requested advice on the following issues pertaining to the implemen-
tation of the Pesticide Accident Surveillance "System ("PASS"):
(1) Is the data collected under PASS subject to public disclosure? Apparently,
the Agency's primary concerns, here, are:
(a) that the identity of those who report accidents ("informers") be kept con-
fidential in order not to discourage members of the public from volunteering
teering information;
(b) that the identity (and other personal information) of those whom the
accident report concerns be kept confidential as a matter of personal privacy;
(c) that the contents of all accident reports be kept confidential, at least
pending an Agency investigation, in order to avoid unnecessary public fear
and commerical injury caused by unfounded accusations which may occur
in some PASS reports.
ANSWERS
(1) Except for the following data, information submitted under PASS is subject
to disclosure via the Freedom of Information Act (5 U.S.C. §552).
(a) The Agency can probably preserve the confidentiality of "informers"
to the extent such persons have so requested. To this end, I advise the
addition to the Pesticide Episode Investigating Form (PEIF) of a clause
whereby the informer can, under signature, request that his identity be kept
confidential.
(b)(l) The Agency can also preserve the confidentiality of the "victim" (as-
suming the informant and the victim are different persons) to the extent the
PASS report contains his medical data or other personal information the dis-
closure of which would constitute an unwarranted invasion of privacy. (While
it is difficult to foresee what non-medical information, as called for by the
PEIFs, might fall within this "invasion of privacy" exception, OGC should be
contacted in cases of doubt.)
(b)(2) The Agency can maintain the confidentiality of specific commercial
or financial information submitted voluntarily under a request for confiden-
tial treatment. The only information called for by the PEIF which appears
to fit within this category is the monetary loss which a person may have
suffered in a particular accident. This loss could be stated both in terms of
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dollars and items (such as the number of cattle or the acres of a crop which
a particular farmer lost in a specific accident). This commerical infor-
mation must have been confidential before the Agency receives it. While a
request for confidentiality need not be made if the commerical data is such
that the person would normally want to keep it secret, I advise that PEIF
contain a provision for requesting confidential treatment of such monetary
loss data. This exemption would cover confidential commerical or financial
data submitted to EPA by state or federal government agencies, as well as
by persons (including corporations), as long as the government agencies had
in turn received the data in confidence. The exemption will not permit the
Agency to withhold aggregate commerical or financial data not related to a
specific person, even if the components has been submitted in confidence
(e. g., the fact that Farmer Jones reports he lost 75% of his cattle herd in
a pesticide poisoning incident, if confidential, is subject to non-disclosure;
the fact that in 1973, mercury pesticide poisoning killed 500 cattle, or cost
$100, 000 in Texas must be revealed, as long as to do so would not disclose
the commercial information of any specific person).
(c) EPA can refuse to disclose (except to a party in litigation with the
Agency) any specific PASS report which is contained within a file compiled
for purposes of law enforcement or whichis part of an active litigation file.
To the extent that any particular PASS report raises questions of law en-
forcement and is immediately subject to investigation to determine what,
if any, legal steps should be taken, the Agency may be able to withhold such
report for a reasonable period after it is filed. If such action serves a
legitimate agency need, I advise the promulgation of a regulation permitting
the non-disclosure of a PASS report for 90 days after it is filed, in order
to allow the Agency to investigate for purposes of law enforcement. At the
end of this period, if the PASS report has not become part of an active en-
forcement action or an action under Section 6 of the FEPCA; or part of such
action that is being contemplated and is soon to be initiated; or if such re-
port is not part of a law enforcement action being undertaken or planned by
some other division of EPA, or some other federal agency (e.g., Clean
Air Act: Federal Water Pollution Control Act; Department of Labor and
OSHA; FDA; etc.) which has in the interim requested non-disclosure of the
file, the PASS report must be disclosed, barring some other exemption.
In addition, those portions of PASS reports which do not relate to the law
enforcement purpose but which are contained within the litigation file, are
subject to disclosure.
QUESTIONS
(2) If PASS reports are to be made available to the public, can restrictions
be placed upon access to the PASS data bank?
(3) What is the legal liability of those who provide PASS information, if such
information is disclosed via the Freedom of Information Act?
ANSWERS
(2) The threshold requirement of one seeking public disclosure is the necessity
of requesting "identifiable records." To the extent individualized PASS re-
ports are fed into a data bank to produce various categories of composite
pesticide information, the aggregate data are subject to disclosure so long
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as any member of the public can identify the kinds of data he wants and that
data is on, record in the data bank or can reasonably be assimilated. No
exemption to the Freedom of Information Act allows the withholding of such
composite data, although certain exemptions, discussed supra, may allow
the withholding of certain identifying details of composite data.
(3) Informants are protected from liability under the defamation laws by a
qualified privilege. The information which they submit is privileged ab-
sent a showing of actual or implied malice. Good faith reports as to the
cause of a pesticide accident would fall within the privilege.
I. Freedom of Information Act. Exemptions from the Requirement of Public
Disclosure.
The relevant exemptions to FIA's requirement of public disclosure are as
follows:
(a) "commercial and financial information obtained from a person and
privileged or confidential ("Exemption 4");
(b) "medical files and similar files the disclosure of which would consti-
tute a clearly unwarranted invasion of personal privacy" ("Exemption 6");
(c) "investigatory files compiled for law enforcement purposes except to
the extent available by law to a party other than an agency" ("Exemption
7").
A. Exemption 4 would clearly permit the withholding of particular data
on the economic loss which a person or business suffered by virtue if a pesti-
cide accident, so long as such, data was of a type which its owner would nor-
mally not want to be made public or was confidential prior to the PASS report
and its owner requested continued confidentially. This data must have been
submitted to government voluntarily by a person outside government who
would normally keep it confidential on his own behalf. General Services
Administration v. Benson. 415 F. 2d 878 (C. A. 9, 1969); although such PASS
data received from other government agencies which in turn received it under
an agreement of confidentiality, is subject to non-disclosure. I/
_!/ (Cf. EPA, "Public Information," Part 2, Federal Register, Vol. 37,
No. 94, Saturday, May 13, 1972.) Also see Bristol Myers v. FTC. 424
F. 2d 935 (C.A. B.C., 1970) to the effect that the purpose of Exemption 4
is to protect the privacy and competitive position of a citizen who offers
information to assist government policy makers.
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While there is some support for the view that Exemption 4 is broader than its
language, allowing the withholding of confidential information which is not
commercial or financial data, I advise that as to PASS information, exemption
4 be utilized only to the extent discussed, supra. 2/
27 Two views exist as to the breadth of Exemption 4:
(a) The Attorney General's Memorandum on the Freedom of Information Act
(p. 32) concludes that, the statutory language notwithstanding, Congress in-
tended Exemption 4 to apply to all information given voluntarily to government
and which is otherwise confidential or privileged. This view is accepted,
apparently, without explanation in some district court cases.
Barcelonata Shoe Corp. v. Comptpn. 271 F, Supp. 591 (DPR 1967), held
that statements given NLRB investigators were confidential and need not be
disclosed. Because the statements involved charges of unfair labor practices
which were under investigation by the NLRB, Exemption 7 clearly applied and
was relied upon by the court. This fact, in addition to the court's failure to
explain its circumvention of the plain wording of the FIA in order to rely on
Exemption 4, undermines meaningful reliance on Barcelonata.
Wecksler et al v. Schultz. 324 F. Supp. 1084 (DDC, 1971) held that the De-
partmentof Labor's investigatory report of a fire and explosion at a refinery,
was subject to non-disclosure under Exemption 4. While it is possible that the
accident report contained trade secrets or confidential commerical and fi-
nancial data, it is difficult to understand how the entire report could be with-
held under Exemption 4 unless the court were of the view that this exemption
covers all kinds of confidential information. In any event, the court's fail-
ure to state the basis for its finding undermines the value of relying on this
decision to withhold non-commercial data contained within a PASS report.
Also see Tobacco Institute v. F.T.C. (unreported, Dist. Co. No. 3035-67);
public responses to a questionnaire concerning the effects of smoking on
health are within Exemption 4.
(b) Professor Davis, Administrative Law Treatise (1970 Supplement),
§3A. 19, is of the view that the legislative history of Exemption 4 is not
supportive of the Attorney General's position. The Davis view is supported
by a string of cases. Grumman Aircraft Engineering Corp. v. Renegotia-
tions Board, 425 F.2d5?8(CADO 1970); Sterling Drug, toe, v. FTC. 450
F.'2d 698 (CADC 1971); Getman v. NLRB. 450 F^d 670 tUADC 107TJT Con-
sumers Union of U.S.. Inc. v. Veterans Administration, 301 F. Supp. 796
-------
B. Exemption 6 permits the withholding of those portions of PASS reports
which contain personal medical information, the disclosure of which would re-
veal (or lead to the discovery of) the identity of the person whose medical
status is described in the report. For example, the name and address of a
person injured in a pesticide accident whose medical status is described in a
PASS report is subject to non-disclosure. Other data in the report which, if
disclosed, could reasonably lead to the disclosure of the accident victim as
linked to his medical status are also subject to withholding.
Although such "injury" information may not clearly constitute a personal
medical file, its health-related quality is probably sufficient to permit with-
holding under Exemption 6. Robles et al. v. EPA (unreported opinion, Civil
No. 72-517 HM, DM 1972), involved a suit under the Freedom of Information
Act to compel the disclosure of the results of radiation tests run by EPA in
various homes in Grand Junction, Colorado. EPA had agreed to reveal the
results but refused to reveal the identity of the households involved in the
testing. The court ruled that the identity of the individuals' homes, as related
to the levels of radiation measured, constituted personal information as to the
health of individuals, which information was similar to medical files and sub-
ject to non-disclosure under Exemption 6.
This health-related exemption would likely apply to much of the "human"
PEIF, but only insofar as specific accident or health data could reasonably
lead to the identity of the accident victim. Composite data such as the number,
and the nature of injuries sustained in a given episode, are not protected.
Similarly, some PASS reports may actually consist of medical files or por-
tions thereof transmitted by a doctor or a hospital with consent of the patient.
The contents of such medical files as they would lead to the identity of and be
related to the patient are subject to non-disclosure. But the statistical re-
sults of many such medical files are subject to disclosure, so long as the
identity of individual patients is protected. 3_/
C. Exemption 6 may permit withholding the identity of persons filing PASS
reports. This exemption requires that withheld information relate to a matter
of personal privacy, similar to medical or personal data, and that the dis-
closure of this information constitute an invasion of privacy which clearly
unwarranted, when balanced against the public interest in disclosure. Several
cases under FLA lend partial support to the application of this theory to PASS
informants.
The decision in Robles etal. v. EPA (supra) to withhold the identity of house-
holds in which EPA had measured radiation levels rests in part on the fact that
EPA has promised to maintain the confidentiality of the sources as a condition
precedent to receiving the information. While the court also found that these
identities constituted information "similar to" personal medical data, its con-
clusion appears to rest simply on the fact that the identity of such persons and
3y Applicable to the entire discussion of FLA exemptions is the determination
that an entire document cannot be withheld simply because it contains
some confidential information, if the source of the privileged portions can
be reasonably protected while revealing non-confidential parts of the docu-
ment. Grumman Aircraft Engineering Corp. v. Board, op. cit.
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their households is a matter of personal privacy. The invasion of this right
to be free from unwanted publicity was "clearly unwarranted" in light of the
willingness of EPA to disclose the radiation levels, without identifying spe-
cific persons or households.
InWirtz v. White, 272 F. Supp. 70(D.C. Okl.). the court held that the
Secretary of Labor in an action under the Fair Labor Standards Act was not
required to reveal the names of defendant's employees who had complained to
the Department of Labor. Such information is privileged and confidential.
Also seeSchapirofe Co. v. SEC, 339 F. Supp. 467 (D.C.D.C., 1972), where
the court in holding that certain information must be disclosed under FLA,
ruled that the identity of the informant may be withheld.
Getman v. NLRB (op. cit.) held that exemption 6 did not apply to a list of
employees eligible to vote in a particular union election. The case is distin-
guishable from the PASS situation in that the list of eligible employees was
required to be submitted to government by the employer (unlike PASS infor-
mation, which is voluntary) and the disclosure of these names would not
subject the employees to an unwarranted invasion of privacy. Disclosure
of the employees' names was sought by two professors studying the process
of union elections, and such disclosure would, at most, subject the em-
ployees to a request for an interview. In the case of PASS informants, the
invasion of privacy is much more significant. Such disclosure would subject
informants to economic retaliation by employers, to forms of harrassment
by members of the community adversely affected by the reporting of the acci-
dent, and to unwarranted publicity.
Finally, to the extent that Getman recognizes a right to privacy in maintaining
the confidentiality of names held by government (although that court ruled
that the invasion of such privacy was not "clearly unwarranted") it supports
the position of EPA in withholding the identity of PASS informants.
It is probable that EPA may, in most cases, withhold the identity of PASS
informants. Such non-disclosure should only be undertaken at the express
request of the informant and with the recognition by the informant that under
certain circumstances (e. g., a lawsuit related to the accident in which a party
obtains a subpoena requiring disclosure) disclosure may be required. 4_/
V But see Cooney v.~"Sun Shipbuilding & Drydock Co., 288 F. Supp. 708
(1968); Executive privilege may be valid basis to withhold identity and
statements of non-governmental informants contained in government in-
vestigative files from production in a lawsuit if necessary to preserve full
and frank disclosure to government investigators and if not unduly pre-
judicial to needs of private litigants.
Other cases accord a confidential status to informant's identity. Rovano
v. U.S., 335 U.S. 53; protect the identity of person furnishing information
leading"to investigation and criminal prosecution; State v. Viola, 82 NE
2d 306, cert. den. 334 U.S. 816; withholding identity of one transmitting
information in the public interest is to protect such persons from un-
warranted publicly or personal harm; People v. Roban, 45 NY S2d 213,
letter written by a citizen to a police official charging a crime is confi-
dential communication, privileged from disclosure; also see U.S. v.
Krulewitch, 145 F. 2d 76; communication between informant and prose-
cuting attorney is confidential.
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D. PASS reports which become part of an investigatory file compiled for
purposes of law enforcement are disclosable, if at all, only to a party in liti-
gation with the Agency. However, this exemption has been rather narrowly
construed to require that the prospects of enforcement be concrete and not a
mere possibility at some unspecified future date. Bristol-Myers Co. v.
FTC, 424 F. 2d 935 (C.A.D.C., 1970). See Schapiro & Co. v. SEC (supra),
to the effect that enforcement action must be contemplated within the "reason-
ably near future."
But because of the Agency's added authority under FEPCA to control pesti-
cide use and disposal, it would seem that many PASS reports would constitute
the initial step of an investigation and enforcement action. In addition, PASS
reports which pertain to currently pending litigation of EPA, such as cancel-
lation proceedings, may be subject to withholding from non-party if made a
part of the litigation file. To the extent that any accident report raises ques-
tions of law enforcement, by EPA or some other federal agency, the courts
may look favorably upon the withholding of such report for a reasonable peri-
od, in order to further the investigation into whether enforcement action is
warranted. If such a policy is desirable, it should be embodied in a regulation.
Finally, because the policy behind Exemption 7 is to permit the government
to keep confidential the procedures by which an agency conducted an investi-
gation and by which it obtained information, the termination of an investiga-
tion and an enforcement action does not extinguish the exemption. Investi-
gatory procedure and informant identity may remain confidential although in
most cases the substance of PASS reports would be subject to disclosure.
See Evans v. Department of Transportation. 446 F. 2d 821 (C.A. 5, 1971),
where the identity of an informant who complained about a pilot's competency
was preserved 10 years after investigation cleared the pilot of all charges.
See Frankelv. SEC, 460 F. 2d 813 (C.A. 2, 1972), to effect that information
contained in an investigatory file which is no longer active is not subject to
disclosure if to do so would reveal identity of SEC informants.
II. Liability of Persons Who Report or Disclose PASS Data.
EPA employees who reveal PASS information pursuant to FIA enjoy an abso-
lute privilege for defamatory publication. Garrison v. State of Louisiana,
379 U.S. 64.
Citizens filing PASS reports with EPA are clearly protected by a qualified
privilege from liability for defamatory statements.^/ The qualified privilege
arises by virtue of the duty or interest (social, moral, or legal) of the in-
formant to communicate the circumstances of a pesticide accident to EPA,
£/ Such statements in certain jurisdictions may be accorded quasi-judicial
status and accorded absolute privilege. See Boston Mutual Life Co. v.
Varone, 303 F. 2d 155 (C.A. 1, 1962). Statement of employer to state
insurance commissioner on qualifications of former employee is quali-
fiedly privileged.
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which in turn possesses a corresponding interest in receiving such informa-
tion. Because the reporting of such an accident to EPA is a method of publi-
cation reasonably related to the protection of such interests and because in
such cases the public interest in hearing what is reasonably believed to be
true outweighs the occasional damage to individuals caused by such publica-
tion, the informant is protected from liability, assuming the report is de-
famatory, absent a showing that is was motivated by ill-will or that it con-
stitutes a conscious falsehood, a statement which the informant did not be-
lieve to be true or had no reason to believe was true. Mere negligence does
not destroy the privilege.
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SECTION VI GRANTS AND CONTRACTS
CONSTRUCTION GRANTS
FEDERAL WATER POLLUTION CONTROL ACT FUNDS
TITLE: Disaster Relief
DATE: December 7, 1971
FACTS
An opinion has been requested concerning the eligibility of sewage treat-
ment plants for FWPCA grants where such plants have been damaged by
hurricanes Edith and Fern. The same issue has been presented in other
Regions by similar disasters, such as floods, tornadoes, and earthquakes.
QUESTION
Are sewage treatment plants which have been damaged by natural disasters
eligible for FWPCA grants ?
ANSWER
Yes, to the extent that the grantee is financially responsible for the repair
of the damage caused by the disaster. In addition to FWPCA grants, assist-
ance may be available pursuant to the Disaster Relief Act of 1970.
DISCUSSION
Generally, reconstruction or repair of existing sewage treatment plants may
be funded under the FWPCA, whether the reconstruction or repair will result
in restoration of the plant to its predisaster condition or in the construction of
a substantially improved plant. State priority certification must be obtained
and applicable statutory requirements must be met, as in the case of other
EPA projects. A provision of the Disaster Relief Act of 1970, 42U.S.C.
Section 4483(1), provides that applications for assistance from proclaimed
disaster areas may be given priority in processing over all other applica-
tions.
Damage to treatment works under construction requires different analysis
than that which applies to completed projects. Generally, public construc-
tion contracts place the risk of loss attributable to Acts of God (such as
hurricanes, tornadoes, floods) upon contractors. The federal rule, con-
firmed in Arundel Corp. v. United States, 103 Ct. Cl. 688, cert, denied
326 U.S. 752 (1945), Is generally identical to the result under state and
local public contracts. Contractors generally obtain insurance to cover this
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contingency, or are self-insured. Accordingly, in the case of damage to
sewage treatment plants under construction, inquiry must first be made to
determine whether the risk of loss is upon the contractor. If it is, either
the contractor or his surety is required to complete the facility. If the con-
struction contract does not place the risk of loss upon the contractor, or
if there has been partial acceptance of the facility, then the municipality
is eligible for FWPCA funds, to the extent of the loss suffered.
In either event, eligibility for FWPCA funds does not depend upon whether
the facility wiU be restored to its pre-disaster condition or whether an im-
proved facility will replace the damaged plant. Also, in both circumstances,
inquiry should be made to determine the extent to which the loss may be
covered by an insurance policy or a self-insurance program in order to de-
termine the grantee's eligibility.
A community may also be eligible for Federal assistance under the Disaster
Relief Act of 1970 (Public Law 91-606), 42U.S. C. Sections 4401 et seq.,
and Executive Order No. 11575 (36 F.R. 37), both of which became eTfeclTve
on December 31, 1970. This Act is applicable to any "major disaster" which
the President determines warrants Federal assistance. A "major disaster"
is defined (42 U. S. C. Section 4402) to include hurricane, tornado, storm,
flood, high water, wind-driven water, tidal wave, earthquake, drought, fire,
or other catastrophe.
This legislation authorizes Federal assistance for the restoration of state
and local public facilities; see 42 U. S.C. Section 4482 and 32 C.F.R. Parts
1710 and 1711. Federal assistance is authorized for up to 100% of the net
cost of repairing, restoring, reconstructing or replacing any public facility
to its predisaster state, in the case of completed facilities; Federal assist-
ance not exceeding 50% is authorized for the restoration of facilities under
construction to their predisaster condition and an additional 50% contribution
is authorized for the increased cost of additional construction attributable to
changed conditions resulting from the disaster.
There is no statutory bar to the application by a disaster-afflicted community
for Federal assistance under either the FWPCA or under the Disaster Relief
Act, or under both statutes. Initially, the community may decide which
statutory remedy to pursue; it may also choose to pursue both remedies.
The same administrative discretion to award FWPCA grants applies to dis-
aster projects as to other FWPCA grant applications. The determination
to apply for or to award an FWPCA grant will depend upon a number of
factors such as (1) the availability of appropriations under either statute,
(2) the availability of a priority certification for FWPCA funding, (3) the
availability of matching funds required for FWPCA grants, and (4) the dif-
ference in cost between the reconstruction of an improved new facility and
the restoration of the damaged facility. For instance, where an outmoded
facility is destroyed, it may be to the community's advantage to rely chiefly
upon FWPCA funding for the construction of a substantially improved new
facility, since disaster assistance is generally limited to 100% of the cost
of restoring a facility to its predisaster condition.
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Under certain circumstances, it appears that FWPCA expenditures for emer-
gency relief may be reimbursed from any appropriations for disaster relief;
see42U.S.C. Section 4413(c) and 32 C. F. R. Section 1710. 7. In no event
may a community obtain total Federal assistance in excess of 100% of the net
actual cost of reconstruction or repair of the damaged public works; see 42
U.S. C. Section 4418.
Please be assured that the assistance of this office will be made available for
the resolution of the questions which may be presented in the administration
of the FWPCA in conjunction with the Disaster Relief Act.
§§§§§§§
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TITLE II CONSTRUCTION GRANT FUNDING
TITLE: Appropriations in Title II Construction Grant Program
DATE: July 11, 1973
Your June 21, 1973, memorandum requests an opinion on the following two
questions regarding funding for construction grants under Title II of the
Federal Water Pollution Control Act Amendments of 1972 (P. L. 92-500):
QUESTIONS
1. Can EPA award construction grants knowing that the subsequent outlays
cannot be covered from available appropriations or appropriations that have
been requested of the Congress ?
2. Can the Government actually make payments for outlays associated with
previous obligations if it does not have an appropriation ?
ANSWERS
1. Yes, EPA can award grants up to the amount of allotments" available
to each state, but it has a duty to request additional appropriations sufficient
to liquidate the contractual obligations incurred under the grants.
2. No.
DISCUSSION
Article 1, Section 9, Clause 7 of the United States Constitution requires that
". . . no money shall be drawn from the Treasury, but in conse-
quence of appropriations made by law . .
This provision has been interpreted to mean, quite simply, that no money
may be paid out of the Treasury unless it has been appropriated by an Act
of Congress, Cincinnati Soap Co. v. United States, 301 U.S. 308 (1937).
While this provision operates as a restriction upon unauthorized action by
officers of the Executive Branch, it does not operate to prevent Congress
from authorizing the Government to contract to pay money; rather when such
contracts are created, the parties who acquire rights to payment thereunder
must wait until an appropriation is made before payment may be made,
Mitchell v. United States, 18 Ct. Cl. 286 (1883). The foregoing Constitutional
requirements and judicial interpretations have been particularized in statu-
tory law, see 31 U.S. C. 627, 665(a). Accordingly, EPA grants awarded
under Title II contain a provision explicitly stating that payment under the
grant is subject to availability of funds, i. e., appropriations.
The provisions and legislative history of the construction grant funding mech-
anism-in Public Law 92-500 reflect that these provisions were patterned
after the funding mechanism for the Federal Interstate Highway construction
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program. A description of the highway program funding is contained in the
recent decision in State Highway Comm. of Missouri v. Volpe {8th Cir.,
April 2, 1973):
Based upon specific formulas set forth within the Act, the Secretary is
required to apportion among the several states certain sums authorized
to be appropriated for expenditure. 23 U. S. C. §104(b). After the appor-
tionment, the states, through their respective highway departments, are
to submit programs of proposed projects based upon the apportioned
funds. * * * Section 106(a) then provides that "as soon as practicable
after program approval, " specific "surveys, plans, specifications, and
estimates for each proposed project" lwill be submitted to the Secre-
tary for his approval. * * * It is at this stage that the contract controls
are imposed, for once a project is approved by the Secretary it "shall
be deemed a contractural obligation of the Federal Government for the
payment of its proportional contribution thereto." 23 U.S.C. §106(a).
On the basis of this approval, states are permitted to obligate the appor-
tioned funds through the letting of construction contracts, etc. * * *
The final stage of the Act is the appropriation by Congress of money
from the Highway Trust Fund to pay the state the proportional federal
share of construction costs incurred in the partial or total completion
of the highway projects. "
This contract authorization funding mechanism has been utilized and ap-
proved for a number of diverse purposes, e. g., the construction of the
memorial amphitheater at Arlington National Cemetery; see 30 OPs. Atty.
Gen. 147 (1913). The issue whether to utilize contract authorization funding
for construction grants was fully considered during consideration of P. L.
92-500, most particularly on the Senate floor in conjunction with the Boggs
amendment (No. 562) to S. 2770 which would have deleted the contract au-
thorization feature of the legislation, but which was defeated.
Section 207 of the FWPCA (33 U. S. C. 1287) now states that there is ". . .
authorized to be appropriated. . . ." certain sums for treatment works con-
struction. Under Section 205 of the Act (33 U.S. C. 1285) the Administrator
is required to allot to the states amounts not to exceed the sums authorized.
Pursuant to Section 203 (33 U.S.C. 1283), the Administrator's approval
of an applicant's plans, specifications and estimates ". . . shall be deemed
a contractural obligation of the United States . . . " for payment of the
Federal share of project costs. The FWPCA Amendments thus contemplate
the creation by EPA, within the limits authorized by Congress, of obli-
gations on the federal treasury, subject to the Constitutional requirement
for appropriations. This constitutes a change in the normal authorization-
appropriation-obligation process which was fully contemplated by Congress:
"The Committee believes that contract authority is essential if the
Federal Government is to carry out its responsibilities in meeting the
needs of the Nation for waste treatment works in a timely manner. This
authority will permit the States and municipalities to plan their con-
struction programs with assurance that once their plans, specifications
and estimates are approved, construction can proceed in an orderly
fashion.
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An appropriation of funds will be required annually to the Adminis-
trator to make progress paymenis to the recipients of grants for the
Federal share of the costs of construction as they are earned by con-
tractors on projects under construction. " (H. flep. 92-911, 92nd Cong.,
2d Sess., emphasis added.)
It is clear that appropriations are required before Federal funds may actu-
ally be paid from the Treasury, although the agency, within limits authorized
by law, may obligate the Treasury for payment of funds in advance of actual
appropriations. Should initial outlay estimates prove incorrect during the
course of each fiscal year, it is incumbent upon the Executive Branch to
so advise the Congress and to request a supplemental appropriation.
§§§§§§§
TITLE: Funding for Projects under Section 208(f)
DATE: July 9, 1973
This memorandum is in response to inquiries which have been received con-
cerning the funding mechanism under Section 208 of the FWPCA Amendments
of 1972.
FACTS
Section 208 of the FWPCA Amendments of 1972 (33 USC 1288) requires the
governors of the States to designate, with the approval of the Administrator,
planning agencies to develop waste treatment management plans for certain
areas with substantial water quality control problems. Designation of such
agencies must take place within 180 days of publication of EPA guidelines
identifying the water quality problem areas. Within one year of designation,
the planning agency must have a planning process in operation; within two
years after the planning process is in operation, it must be submitted to the
Administrator for approval. Section 208(f)(l) states:
"The Administrator shall make grants to any [approved planning agency]
for payment of the reasonable costs of developing and operating a con-
tinuous areawide waste treatment management planning process. ..."
(emphasis supplied).
Section 208(f)(2) specifies that the amount of any such grant shall be 100%
of the costs of developing and operating the planning process for fiscal years
1973 through 1975, and 75% thereafter. Planning agencies must submit a
grant proposal to the Administrator for approval. Section 208(f)(3) states
that the Administrator's ". . . approval of that proposal shall be deemed
a contractual obligation of the United States. . . " for payment of the Federal
contribution. Not to exceed $50 million, $100 million and $150 million are
authorized for appropriation for fiscal years 1973, 1974, and 1975, respec-
tively, to fulfill the "contractual obligations. "
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QUESTION
Under Section 208(f) of the Act, may the Administrator establish a limit,
below authorizations, on the amount of funds which will be available for
obligation for planning agency grants ?
ANSWER
No.
DISCUSSION
The explicit language of Section 208(f)(l) of the Act requires the Adminis-
trator to make grants for costs of development and operation of areawide
planning processes to any approved planning agency. Section 208(f)(2) re-
quires the amount of each such grant to be 100% of costs for certain fiscal
years. The mandate that the Administrator "shall" make such grants, in
such amounts, is uncommon in Federal grant legislation, and cannot be read
to mean less than what it obviously says. EPA is presently on record as
having adopted such an interpretation* On December 13, 1971, the Adminis-
trator sent a letter to Representative Blatnik, Chairman of the House Comm-
ittee on Public Works, expressing the formal comments on the agency on
H. R. 11896 which contained, in Section 208(f)(l), the precise language now
found in Section 208(f)(l) of the FWPCA Amendments. The letter stated:
"EPA would be required to provide financial assistance to designated
planning agenciesTuT amounts" equal to 100% of their planning costs in
each of the first four years. . . we strongly oppose 100% Federal
funding of these planning costs. If Federal financial assistance for
such activities is to be provided, substantial State and local matching
is essential. " A Legislative History of the Water Pollution Control
Act Amendments'o'f 19J2, 93rd Cong., 1st Sess. (hereinafter ''History"),
p. 841 (see also p. 11961 (emphasis supplied).
H. R. 11896 was not amended to satisfy EPA's objections; in fact, the Act
as passed goes farther than H.R. 11896 to include the "contractual obligation"
language found in Section 208(f)(3). This concept was derived from S. 2770,
which included the contractual obligation provision in different form. The
"contractual obligation" provision emphasizes the non-discretionary nature
of the areawide planning grant. While this provision cannot make the man-
datory duty to award such grants any more mandatory, it does evidence
Congress1 strong intent to assure funding for areawide planning:
The Senate bill authorized a percentage of the total construction grant
authorization as contract authority for funding the regional waste
management planning aspects of this legislation. The conferees agreed
on a separate authorization included in section 208 but provided that the
funds thereunder would be available in the form of contract authority
so as to expedite implementation of this vital section. The degree to
which the Administrator takes immediate action to implement this section
will be convincing evidence of the commitment of the Environmental
Protection Agency to early and effective implementation of the water
quality management policies established by this legislation. "
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Discussion by Seh. Muskie, History, p. 169.
We are aware that the agency has taken a different policy position regarding
the language of Section 205(a) of the Act, which states that sums authorized
for treatment works construction grants "... shall be allotted...." Less
than full authorized sums were allotted. However, that action was taken
pursuant to Presidential direction, and was based upon considerable legisla-
tive history related specifically to Section 205(a) which appears to provide
the Administration with discretion to allot less than full sums authorized
for construction grants. Absolutely no such legislative history exists which
would support a similar approach to grants under Section 208; indeed, the
Administrator's letter quoted above (which is part of the legislative history
of Section 208) contraindicates such policy.
It should also be noted that merely because the agency requests appropria-
tions of less than full authorized sums, or Congress initially appropriates
less sums than appear needed to fund awarded grants, there is no obviation
of the Administrator's duty to award a grant in circumstances where Section
208 requires an award. By inclusion of the "contractual obligation" authority
in Section 208(f)(3), Congress has obligated itself to appropriate all amounts
needed (within authorized limits) to fund grants which, by virtue of Section
208(f)(l), the Administrator is obligated to make. It is therefore mandatory
for the agency to request an appropriation for the amount actually needed
to fulfill outlay requirements of awarded grants. Any request for a lesser
appropriation based upon initial outlay estimates cannot serve as a limita-
tion on grant awards.
To the extent spending controls exist at all under Section 208(f) (after an
agency has been approved), they derive from the authority in 208(f)(l) to
pay ".. .the reasonable costs of developing and operating a continuing area-
wide waste treatment management planning process... "(emphasis supplied).
Neither the statute nor legislative history discusses the term "reasonable
costs." The Administrator thus has some discretion to determine the
kinds and amounts of costs which are reasonably required to develop and
operate a planning process meeting the requirements of Section 208(b).
We wish to emphasize that mere approval by the Administrator of a desig-
nated planning agency does not, in and of itself, constitute a commitment
to make a grant to the agency. Section 208(f)(3) requires the approved agency
to submit a grant proposal to the Administrator, and it is only upon approval
of that proposal that the United States becomes contractually obligated to
pay the costs of the planning process. To avoid misunderstandings, it would
be appropriate to specify in the document approving the designated agency
that such approval does not contstitute grant award.
§§§§§§§
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SEWAGE TREATMENT WORKS CONSTRUCTION FUNDS UNDER FWPCA,
AMENDED
TITLE: Availability of Sewage Treatment Works Construction Funds
DATE: April 12, 1973
Mr. Dan W. Lufkin
C ommis s ione r
State of Connecticut
Department of Environmental Protection
State Office Building
Hartford, Connecticut 06115
Dear Mr. Lufkin:
The Administrator has asked me to respond to your letter of January 30,
1973, regarding availability of sewage treatment works construction funds
under the Federal Water Pollution Control Act Amendments of 1972 (P. L.
92-500). Please accept my apologies for the delayed reply.
I wish to express the sincere appreciation which both the Administrator and
I feel for your personal efforts and the efforts which Connecticut has made
toward accomplishing a sound water pollution control program. Your letter
reflects a justifiable pride in those efforts.
You have suggested two methods of speeding the construction of sewage
treatment works in Connecticut. One suggested method would require the
allotment to Connecticut of an additional $100 million of Federal funds.
Such an approach, however, would not be permissible under the FWPCA
Amendments. Section 205(a) of the Act provides that allotments among the
states for Fiscal Years 1973 and 1974 must be made on the basis of Table
III of House Public Works Committee Print No. 92-50. Congress parti-
cularized in that document the specific dollar amounts needed for construc-
tion in each state. The dollar figures were translated by EPA into percentage
figures for purposes of determining allotments, so that each state could be
allotted an amount directly proportional to the dollar figures contained in
the committee print. All available sums for treatment works construction
inFYs!973 and 1974 have been allotted on that basis. I do not believe
that the Act permits an additional allotment to adjust the proportional share
of a single state.
As you are no doubt aware, Sections 205(a) and 516(b) of the Act provide
that allotments for FY 1975 will be available by January 1, 1974. Such
allotments will be made on the basis of new "needs" survey which is to
be submitted to, and approved by, Congress.
Your second suggestion relates to "prefinancing" the Federal share of a
project's construction costs. From your mention of "contract authorization,"
we assume you mean that EPA would approve plans, specifications and esti-
mates for a proposed project (thereby obligating the United States to payment
of 75% of project costs) while initially paying none of, or less than, the 75%
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Federal share of project costs. The municipality would obtain from the
state, or provide from its own funds, "prefinancing" of the unpaid Federal
share, in anticipation of eventual reimbursement.
Except in the very limited circumstances discussed below, the above-
described approach is not a permissible mechanism for funding treatment
works projects under the new statute. The Act as amended by P.L. 92-500
no longer contains authority for establishment of a class of partially funded
reimbursable projects. Although Section 8 of the old law authorized the
creation of a pool of reimbursement claims, this authorization was not
carried forward into the FWPCA Amendments. The sole authority for re-
imbursement in Title II of P.L. 92-500 is contained in Section 206, the
provisions of which (except for Subsection 206(f)) related only to reimburse-
ment of projects initiated prior to July 1, 1972.
Subsection 206(f) is of limited utility because it provides that the Admin-
istrator may approve only a project undertaken without the aid of any
Federal funds, and may commit funds in advance to the project after the
exhaustion of available allotments only to the extent ". . .an authorization
is in effect for the future fiscal year for which the [applicant] requests
payment, which authorization will insure payment without exeeding the
State's expected allotment from such authorization. " At this time your state
of Connecticut allotments for FY 1973 and 1974 have not been exhausted
and it is not possible to determine what your expected state allotment will
be in the only remaining year (FY 1975) for which there as an authorization
under the statute, so there is no basis for utilizing the very limited authority
of Section 206(f).
We recognize and appreciate your desire to reverse the deterioration of
Connecticut's waters in the most efficient and expeditious manner. Imple-
mentation of a "phased" approach to construction, (see 40 CFR 35.920-3),
as authorized by Congress, should be of substantial assistance in meeting
the goals reflected in your suggestions.
Sincerely yours,
John R. Quarles, Jr.
Assistant Administrator for Enforcement
and General Counsel
§§§§§§
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TITLE: Allotment of Funds for Construction of Sewage Treatment Works
DATE: February 21, 1973
Mr. J. Michael McCloskey
Executive Director
Sierra Club
Mills Tower
San Francisco, California 941 04
Dear Mr. McCloskey:
I have received your letter of January 8, 1973, concerning the allotment
of funds for construction of sewage treatment works under the Federal Water
Pollution Control Act Amendments of 1972. Please accept my apology for
the delayed response.
As you are aware, the President, by letter dated November 22, 1972,
directed me to allot no more of the funds authorized by Section 207 of
the Act than $2 billion for FY 1973 and $3 billion for FY 1974. The
President's letter was quite specific concerning the reasons for his deci-
sion. In it, he indicated his resolve "to maintain a strong and growing econ-
omy without inflation ortax increases. " He also stated that the sums allot-
ted would "provide for improving water quality and yet give proper recog-
nition to competing national priorities for our tax dollars, the resources
now available for this program and the projected condition of the Federal
treasury under existing tax laws and the statutory limit on the national debt."
I believe that this administration can be proud of its record of commitment
to cleaning up the Nation's waters. The President's record of spending
requests transmitted to Congress emphasizes this commitment. In his four
budget years, he has requested a total of over $5.2 billion for municipal
wastewater treatment construction, nearly eight times the $665 million re-
quested for the preceding four-year period. Allotments for 1972-1974 will
total $8.9 billion overall, about three times as much as was appropriated
in the preceding fifteen years.
Of vital concern to the President, and to me, are the potential effects of
a higher rate of spending for treatment works construction than will be the
case under the allotments made. Sewer construction costs have increased
more than 120% over the last two decades, as compared with the 49% rise
in the consumer price index. The increased demand created by large sub-
sidies, together with the competition for scarce construction services, would
force further price increases and would result in construction delays.
Balancingthe competing interest of fiscal responsibility and pollution control
needs, the President has reached what I believe to be a sound compromise.
In his letter to me, the President states, "I believe this course of action
is the most responsible one one which deals generously with environmental
problems and at the same time recognizes as the highest national
priority, the need to protect the working men and women of America against
tax increases and renewed inflation.
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The President reiterated his commitment to cleaning up the Nation's
waters in submitting his most recent budget to Congress. At that time, he
stated that the forward thrust of our environmental programs has not been
altered. We will continue vigorous enforcement of laws and Federal regu-
lations. . . a total of $ 0.1 billion has been set aside in a short period
of time for waste treatment facilities. I believe that more funds would not
speed our progress toward clean water, but merely inflate the cost while
creating substantial fiscal problems.
I agree with your statement that an "immense effort" must be mounted and
and sustained if we are to clean the nation's waters. We have undertaken
such an effort in implementing the programs, standards and enforcement
mechanisms established under the FWPCA Amendments.
Your letter requests EPA to prepare an environmental impact statement
under the National Environmental Policy Act (NEPA) in connection with the
allotment of less than the full sums authorized by Section 207 of the
FWPCA Amendments. I do not believe that NEPA requires such action,
which would be inconsistent with Section 511(c) of the FWPCA Amend-
ments, and its legislative history, and with NEPA itself as that statute
has been interpreted and applied by the courts.
Section 511(c) of the FWPCA Amendments states in pertinent part that:
"Except for the provision of Federal financial assistance for the pur-
pose of assisting the construction of publicly owned treatment works as
authorized by Section 201 of this Act. . . no action of the Adminis-
trator taken pursuant to this Act- shall be deemed a major Federal action
significantly affecting the quality of the human environment within the
meaning of (NEPA). ..."
You do not argue that allotments of less than full authorized sums were
"the provision of Federal financial assistance" for constructing treatment
works, and thus subject to NEPA's requirements; rather, as I understand
it, your contention is that our allotment was not an action "taken pursuant
to this Act" within the terms of Section 5ll(c"7Tl). You further state that
Section 511(c)(l) would not in any event operate to excuse EPA from com-
pliance with Section 102{2)(D) of NEPA, which requires agencies to study,
develop and describe appropriate alternatives to their actions.
I do not think it can reasonably be argued that my action in allotting funds
under Section 205 and 207 of the FWPCA Amendments was not an action
"taken pursuant to" the Act. I have consistently advanced as authority for
my action the flexibility and discretion clearly afforded by Sections 205 and
207 of the FWPCA Amendments. I recently discussed this matter in some
detail before the Senate Committee on Government Operations.
As you note in your letter, the question whether the FWPCA Amendments
authorize an allotment of less than full sums authorized by Section 207
is the subject of litigation. Should the courts conclude that the Act does
not confer such authority upon me, I may be ordered to allot the full sums
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authorized by Section 207. I do not understand your letter to include a
request that I prepare an environmental impact statement in that event. I
believe our obligation under NEPA with respect to sewage treatment plants
is to prepare environmental impact statements where there are significant
adverse impacts in connection with individual plants or groups of plants.
See Howard v. EPA, 4 ERG 1731, F Supp (W.D. Va.) September
14, 1972. I do not believe this obligation extends to the preparation of
such statements in connection with the overall decision on level of funding.
The decision in Natural Resources Defense Council y. Morton, 458 F2d
827 (D.C. Cir., 1972) makes it clear that the impact statement need not
be written at the time of an overall program decision, but rather may be
written in connection with specific implementing decisions. Compliance
with NEPA thus may be achieved by preparation of impact statements with
respect to the effect on a particular environment of individual plants.
Furthermore, I do not think that the clear purpose of Section 511(c)(l) - to
relieve EPA of the impact statement requirement except with regard to
specific treatment works grants - may be defeated by resort to Section
102(2)(D) of NEPA, or other provisions of that Act. Senator Muskie, one of
the conferees for the FWPCA Amendments, and the floor manager of the
bill in the Senate, stated:
"Because the language of 511(c)(l) speaks of "major Federal actions
significantly affecting the quality of the human environment" a phrase
which only appears in section 102(2)(C) of NEPA some will argue that
the conferees intended to limit their attention to Section 102(2)(C) and
that all of the other provisions are therefore meant to be applicable to
actions of the Administrator. . . it is the clear intent of conferees of
both houses. . .that all of the provisions of NEPA should apply to the
making of grants under Section 201 and the granting of a permit under
section 402 for a new source and that none of the provisions of NEPA
would apply to any other action of the Administrator. ... If the actions
of the Administrator were subject to the requirements of NEPA, admin-
istation of the Act would be greatly impeded. . . ."118 Cong. Rec.
S. 16878 (emphasis supplied).
With regard to the specific impact of Sections 102(2)(C) and (D) of NEPA,
Senator Muskie further stated:
"The conferees determined that it would be useful to apply, in the case
of waste treatment grants, the requirement of NEPA included in sec-
tions 102(2)(C) and 102(2)(D). Application of these sections would cause
the Administrator to consider "alternative" methods of waste treatment
which may have the beneficial effect of decreasing blind reliance on
"secondary treatment" and stimulate more innovative methods of waste
treatment." Id.
Section 102(2)(D) requires that Federal agencies "study, develop, and de-
scribe appropriate alternatives to recommended courses of action in any
proposal which involves unresolved conflicts concerning alternative uses of
available resources . . . . " It is clear both from the legislative history
of NEPA (see e.g., Sen. Rep. 91-236, 91st Cong. 1st Sess., p. 21) and
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from the foregoing discussion of Section 511(c)(l) of the FWPCA Amend-
ments that Section 102(2)(D) is intended to apply to conflicts over the use
of natural resources, not to conflicts over the use of budgetary resources.
For the foregoing reasons, I do not believe that EPA is required to prepare
environmental impact statements under NEPA in connection with the allot-
ment of funds under Sections 205 and 207 of the FWPCA Amendments.
I note your suggestion concerning the maximum use of authority Congress
has given in Section 201 of the Act for encouraging waste treatment through
recycling facilities, land disposal, wastewater reclamation, and similar
techniques. We are aware of the potential of such techniques, and are pre-
sently encouraging such activities. The Agency currently has a number of
surveys, studies and a major demonstration grant project underway relating
to agricultural and other aspects of land utilization for wastewater.
I wish to emphasize that I appreciate and share your organization's concern
that the Nation's waters be cleaned in the most expeditious and efficient
manner. I also wish to assure you of this Agency's commitment to that
goal, and to the purposes of NEPA and the FWPCA Amendments.
Sincerely yours,
William D. Ruckelshaus
Administrator
§§§§§§§
TITLE: Availability of Unallotted Portions of Construction Grants
Contract Authority for FY 1973 and 1974
DATE: December 15, 1972
This memorandum is in response to your undated memorandum (received
by us on December 6, 1972), subject as above.
FACTS
Section 205 of the Federal Water Pollution Control Act, as most recently
amended by PL 92-500, states in pertinent part (emphasis added):
"(a) Sums authorized to be appropriated pursuant to section 207 for
each fiscal year beginning after June 30, 1972 shall be allotted by
the Administrator not later than the January 1st immediately pre-
ceding Se beginning of the fiscal year for which authorized, except
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that the allotment for fiscal year 1973 shall be made not later than
30 days after the date of enactment [October 18, 1972] of the Federal
Water Pollution Control Act Amendments of 1972. Such sums shall
be allotted among the States by the Administrator in accordance with
regulations promulgated by him. ..."
"(b) (1) Any sums allotted to a State under subsection (a) shall be
available for obligation under section 203 on and after the date of
such allotment. Such sums shall continue available for obligation
in such State for a period of one year after the close of the fiscal
year for which such sums are authorized. ..."
On November 28, 1972, the Administrator promulgated a regulation allotting
$2 million to the States out of the $5 billion authorized to be appropriated
for Fiscal Year 1973, and further allotting $3 billion to the States out of the
$6 billion .authorized to be appropriated for Fiscal Year 1974.
QUESTION
May the $3 billion unallotted but authorized for Fiscal Year 1973, and the $3
billion unallotted but authorized for Fiscal Year 1974, be allotted to the
states subsequent to the first allotment for FY 1973 and FY 1974?
ANSWER
No. The statute contemplates only one allotment for each fiscal year.
DISCUSSION
The emphasized language in the portions of Section 205 quoted above indi-
cates a legislative intent that there be one allotment for each fiscal year.
The amendment to the House version of Section 205, offered by Representa-
tive Harsha at the Conference Committee and adopted by that Committee
and by both Senate and House, served to allow the Executive Branch to allot
less than the full amount authorized for any fiscal year. It did so by deleting
the word "all" at the start of the House version of Section 205(a), and by
inserting the words "not to exceed" at several points in Section 207. Prior
to the adoption of the Harsha amendment, the bill clearly contemplated one
allotment of the entire authorized amount for each year; the Harsha amend -
ment did not affect the intent that there be one allotment.
§§§§§§§
TITLE: Use by Minnesota of Unexpended FY 1972 Program Grant Funds
DATE: June 13, 1973
By memorandum dated May 3, 1973, Mr. V.V. Adamkus, Deputy Regional
Administrator, Region V, has brought to our attention certain matters re-
lating to disposition of approximately $79, 000 in unexpended FY 1972 pro-
gram grant funds in the possession of the Minnesota WPCA. Specifically,
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Minnesota wishes an extension of the time within which all states were re-
quired to obligate FY 1972 grant funds. Further, it appears the State now
wishes to use the funds to implement requirements of the FWPCA Amend-
ments.
In a memorandum of May 15, 1972, to all Regional Administrators, Mr.
Nicholas Golubin (then Director of Air and Water Programs) established
a "cut-off" date of September 30, 1972, for obligation of FY 1972 program
grant funds. Mr. Golubin's memorandum was based in part upon advice
of this office that we had no legal objections to (a) permitting expenditure
of these funds after June 30, 1972, and (b) administratively extending the
period of then-current allotments, "... provided that this applies uniformly
to all of the States. "
By memorandum dated February 28, 1973, Robert Sansom, Assistant Ad-
ministrator for Air and Water Programs, advised the Regional Administra-
tor, Region V, that ". . . because of exceptional circumstances in acquiring
consultant services to supplement their water quality management planning
efforts . . . Minnesota has not been able to meet the administrative dead-
line of September 30, 1972. ..." He noted "ample justification" to grant
an exception, and requested that regional personnel select a "mutually agree-
able date" for obligation and expenditure of the funds in question. Pursuant
to his request, by letter dated March 15, 1973, Minnesota was advised that
"... an exception has been allowed, and the funds are available for expen-
diture. These funds should be obligated for the purposes they were originally
granted as soon as possible [sic]" (emphasis supplied).
By letters dated March 30 and April 25, 1973, Minnesota responded to the
foregoing letter, proposing a new and different use of the $79, 000. Min-
nesota originally proposed to use the funds for consulting services for river
basin planning, but stated that the funds were not so used "due to pending
changes in federal requirements. " Now Minnesota plans to use the funds to
add personnel to "assist in implementing the 1973 Federal Act. " In addition,
they have requested that they be allowed to obligate the funds over a period
of eight months, primarily for salaries.
While the funds involved are "no-year" funds, which remain available until
expended, the agency undertook to encourage expedient use of the funds for
valid program objectives by establishing a reasonable time limit for expendi-
ture. As we understand it, the other states made good-faith efforts to comply
with the requirement, and were successful. Minnesota's proposal, if ap-
proved, would result in an extension of time beyond the original deadline
of about 16-17 months. In our opinion it is not fair or equitable to allow one
state such exceptional treatment when other states expended considerable
effort to comply with the deadline. Such an approach would be damaging
to the credibility of future such administrative requirements.
Accordingly, we recommend against acceptance of the Minnesota proposal
for extension of the time period or alteration of the purpose for which the
funds were originally made available. If Minnesota has not been able to uti-
lize the supplemental FY 1972 funds within the established time and for the
purpose originally intended, the funds should be recaptured or credited
against current program grant payments to the state.
§§§§§§§
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TITLE: Funding Under Delaware's "Phased" System
DATE: February 20, 1973
Mr. John C. Bryson
Acting Secretary
Department of Natural Resources
and Environmental Control
Dover, Delaware 19901
Dear Mr. Bryson:
We have received your telegram of February 2, 1973, requesting our advice
as to whether the Federal Water Pollution Control Act Amendments of 1972
(P. L. 92-500) permit funding of projects under the "phased" system developed
by the State of Delaware. We have now had an opportunity to explore fully
the issues of statutory interpretation raised by your inquiry.
Essentially, the Delaware plan is designed to widen the distribution of treat-
ment works construction funds. The plan provides that each eligible project
in the State would receive a certain percentage of the State's allotment. Al-
though the amount of funds for each project would vary in relation to its
relative priority among other projects in the State, most, if not all, would
receive Federal funding in an amount less than 75% of costs. Each applicant
for a grant would have to "waive" its right to full Federal funding, but with
the expectation that the Federal share would be increased to 75% in future
years in the event Federal funds become available. In our view, this aspect
of the Delaware plan is not a permissible mechanism for funding treatment
works projects under the new statute. ^
Section 202(a) of the Act states that the amount of a treatment works con-
struction grant "shall be" 75% of the costs of construction. Under Section 203
of the Act, the Administrator's approval of plans, specifications and estimates
for a project constitutes a contractual obligation of the United States for pay-
ment of the entire Federal share of the costs of the project. The full amount
so obligated is simultaneously charged against the state's allotment of the
total funds available under the Act for construction grants. The law thus
clearly specifies both the amount of, and the sole means by which, Federal
financial participation in a project shall be provided, and assures grantees
that they will not be required to pay more than 25% of project costs.
The Delaware plan would be inconsistent with the purpose underlying the re-
quirement that Federal financial participation be at the 75% level. Munici-
palities would have to provide their own funds to make up the difference be-
tween the costs of a project and the less-than-75% Federal share. The clear
intent of the new Act was to obviate problems municipalities formerly had in
coping with large financing requirements.
The plan would also require deviation from the funding mechanism contem-
plated by Section 2 03 of the Act, by creating a pool of equitable claims
similar to the reimbursement claims which were authorized by .Section 8
of the Act prior to amendment. As amended by P. L. 92-500, the Act no
longer contains authority for establishment of a class of partially funded
reimbursable projects.
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The sole authority for reimbursement in P. L. 92-500 is contained in Section
206, the provisions of which (except for Subsection 206(f)) relate only to re-
imbursement of projects initiated prior to July 1, 1972. Subsection 206(f)
provides only that the Administrator may approve a project undertaken with-
out the aid of Federal funds, and may commit funds in advance to the project
tolhe extent" ... an authorization is in effect for the future fiscal year for
which the [applicant] requests payment, which authorization will insure such
payment without exceeding the State's expected allotment from such author-
ization. "
We are aware that part of the legislative history of the amendments suggests
approval of Delaware's approach. We believe, however, that there was some
confusion regarding the effect of the amendments contained in the Act. The
statute as amended clearly rejects the establishment of a new pool of reim-
bursable projects, and the apparent conflict between the provisions of the
statute and statements in legislative history must be resolved in favor of
what the statute itself says.
We recognize and appreciate your desire to reverse the deterioration of Dela-
ware's waters in the most efficient and economical manner. Implementation
of a "staged" approach to construction, as authorized by Congress, should be
of substantial assistance in meeting the goals of the Delaware plan. Regula-
tions relating to this "stated" approach will be published in the near future.
Sincerely yours,
John R. Quarles, Jr.
Assistant Administrator for
Enforcement and General Counsel
§§§§§§§
TITLE: Funding Under Delaware's Phased Grants System
DATE: February 21, 1973
Questions have arisen regarding the effect of the Federal Water Pollution
Control Amendments of 1972 (P.L. 92-500) upon the Delaware Phased Grants
System, a fund allocation system which combines project priority deter-
mination with a system of waivers by grantees of part of their entitlement
to Federal funding so that available funds may be spread farther than would
otherwise be the case.
FACTS
The Delaware system was developed a year ago, and has been operative for
about six months. Briefly, the system works as follows: Delaware establishes
the relative priorities of all projects in the State on the basis of public
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hearings and evaluation by the State agency. A mathematical formula estab-
lishes the percentage of Federal funds which each project is "allotted" by the
State, the percentage varying according to the number of projects to be
funded and the relative priority of each. For example, if three projects are
to be funded, the project having highest priority would receive 50% of avail-
able funds, the second would receive 26%, and the third, 24%. If forty pro-
jects will be funded, the project with highest priority would receive 10%,
the next four would receive 5%, and all others would receive 2%. Theoretical-
ly, such a given percentage of total Federal funds could equal or even exceed
the maximum 75% Federal participation in costs of a given project permis-
sible under Section 202(a) of P. L. 92-500; however, that complication is
avoided in Delaware, since the State's system contemplates spreading funds
to enough projects so that no one project will receive even its full 75% en-
titlement in a fiscal year. The plan provides that a project's entitlement
will continue until it receives a total of 75% Federal funding. Delaware has
developed a waiver agreement by which the applicant "agrees to accept" a
specified amount of Federal funding, "even though the 'original grant request
was" larger. The applicant must also assure that it has funds sufficient.to
complete the project, and further agrees as follows:
"It is understood that the project will retain its priority until the
full entitled grant is received. It is further understood that
the project will receive only the amount allocated by [the State
agency] in any given Fiscal year, contingent upon Federal appro-
priations, and that the amount may be only a portion of the full
entitlement."
The Delaware system was designed in the context of the Federal Water Pol-
lution Control Act prior to its amendment by P. L. 92-500. Although it ap-
pears to have been an appropriate mechanism under the old Act, the ques-
tion has been raised as to whether EPA should approve the system for use
under P.L. 92-500.
Inquiry has also been made concerning a problem raised by implementation
of the system during Fiscal Year 1972. Utilizing the plan, Delaware, prior
to October 18, 1972 (the date of enactment of P.L. 92-500), authorized the
initiation of a sizeable number of projects which, pursuant to Section 202
of P.L. 92-500, are eligible for an increase in Federal assistance to the
75% level. However, Delaware's allotment of funds for payment of this
increase is insufficient, and the State agency has inquired whether it may
use the "contractual obligation" authority of Section 203 of the Act to in-
crease the grants to the 75% level.
QUESTIONS
1. Do the 1972 Federal Water Pollution Control Act Amendments permit a
State to certify treatment works projects for a Federal grant of less than
75%, subject to an increase of the Federal share to the 75% level as funds
become available?
2. May the contractual obligation authority of Section 203 of the 1972 Amend-
ments be used to increase to 75% the level of Federal participation in grants
authorized from FY 1972 or earlier funds ?
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ANSWERS
1. No.
2. No.
DISCUSSION - QUESTION 1
Our principal objection to the Delaware system relates to the result which
would flow from initially funding projects at less than 75% while indicating
that Federal financial participation will be increased to 75% if funds become
available. The result would be the creation of a pool of equitable claims
similar to the reimbursement claims created under Section 8 of the old Act,
but quite clearly no longer permissible under P.L. 92-500.
Although the Delaware system does not comport with the scheme of the new
law, the matter is complicated by certain legislative history which states
approval of Delaware's approach:
"When funding the construction of waste treatment plants, the
Administrator, upon the request of a State, should encourage
the use of a phased approach to the construction of treatment
works, and the funding thereof, on a State's priority list. Such
a phased program, which the committee notes has been developed
and approved in the State of Delaware, has enabled the State to
accelerate the construction of sewage treatment facilities, and
thus accelerate the attainment of clean water."
(Conference Report 92-1465 (9/28/72)), p. 111.
We believe that the foregoing language of the Conference Report indicates
some confusion concerning the effect of the amendments contained in P.L.
92-500. The statute as amended implicitly rejects the establishment of a
new pool of reimburseable projects, and the apparent conflict between the
provisions of the statute and statements in legislative history must be re-
solved in favor of the statutory language.
Section 8(c) of the Act prior to amendment by P.L. 92-500 gave the Admin-
istrator discretion to reimburse States or localities for funds expended for
a project:
"... which was constructed with assistance pursuant to this
section but the amount of such assistance was a lesser per
centum of the cost of construction than was available pursuant
to this section ... to the extent that assistance could have been
provided under this section if adequate funds had been available.
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Title II of P.L. 92-500 contains no such authority for establishment of a
class of partially funded reimbursable projects. The only mention of reim-
bursement is contained in Section 206 of the new Act, the provisions of which
(save for Subsection 206(f)> relate only the reimbursement of projects initi-
ated prior to July 1, 1972.
It has been suggested that Section 206(f) of P.L. 92-500 provides a reim-
bursement mechanism comparable to that formerly contained in Section 8.
This is not the case. Briefly stated, 206(f) provides that municipalities
may proceed with projects after a State's fiscal year allotment has been
obligated. Section 206(f) applies only to advanced construction of projects
undertaken". . . without the aid of Federal funds . . ." (emphasis supplied).
The Administrator may approve such a project, and commit funds to it in
the manner required for all projects, only to the extent there are grant
authorizations available for subsequent fiscal years. "It is the intent of this
section that projects approved to proceed without Federal funds will be fully
covered by aState's expected allotment. " House Report No. 92-911 (3/11/72),
pp. 94-5. Section 206(f) does not establish a general reimbursement mech-
anism such as that formerly contained in Section 8(c); rather, it is a much
more limited authority, and contemplates obligating the Government to pay
the Federal share only of projects approved for advanced construction with-
in the limits of identifiable future fiscal year authorizations.
Projects eligible for assistance under 206(f) are those begun "without"
Federal assistance, which suggests that the contractual obligation authority
of Section 203(a) was not intended for use for less than the full amount
of assistance to which a project is entitled. In other words, a project must
be fully funded or not at all, so that no reimbursement "debts" are created
for payment under Section 206(f). We note that Delaware contemplates that
each project will receive a portion of the State's allotment, so that no pro-
ject for which 206(f) funds would be sought would be initiated "without"
Federal funding. Assuming arguendo that such partial funding were per-
missible, we note that the Delaware plan makes no provision for insuring
that each project initiated would be fully covered by the State's allotment
from available future authorizations. Consequently, the plan would permit
the initiation of a sizeable number of partially-funded projects, each of
which would be promised further Federal funding assistance only when, and
if, available. By establishing such a pool of reimbursement debts", the
Delaware plan would have the effect of reinstating the flawed funding mech-
anism formerly established under the Act.
Our reservations concerning the Delaware plan are compounded by circum-
stances attending the "waiver" of Federal financial participation at the 75%
level in the costs of a project. Pursuant to Section 202(a) of the Act, a
grantee may not be required to fund more than 25% of the costs of a project.
One may conceive of circumstances in which a grantee would wish to under-
take a truly voluntary waiver of its full 75% Federal entitlement -e.g., in
order to receive State or other assistance at the 40% level - denial of which
would serve neither the purposes of the Act nor the interests of the grantee.
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Under the Delaware plan, however, municipalities may have to use their
own funds to make up the difference between the cost of a project and the
less-than-75% Federal share; there is no explicit promise of State or other
non-Federal assistance underlying the waiver, which municipalities must
sign to receive any funding at all.
One purpose of the new Act, according to its legislative history, is to obvi-
ate problems municipalities had under the former law in coping with the
large "matching" requirements which resulted both from the provisions of
Section 8 and from the frequent nonavailability of Federal funds. ** Thus,
again, Delaware's plan appears to contemplate a reversion, understate pres-
sure, to the discarded funding mechanisms of the former law.
The thrust of the discussion so far finds further support in the system of
establishing priorities for funding of projects under the Act. Pursuant to
Sections 204(a)(3) and 303(e)(3)(H), the Administrator, before approving
grants for any project in a State, must determine that the project has been
certified by the State as entitled to priority over other projects in the State.
Implicit in this requirement is the Congressional intention that those projects
highest on a State's priority list be funded first. Delaware's system con-
templates that projects entitled to the highest priority will initially receive
more funds, while other projects will be contemporaneously funded, though
at a lower level. Beyond the initial allocation of funds, both high priority
and lower priority projects are treated alike - that is, both are expected
to await "reimbursement" from future Federal funds, if available. Thus,
Delaware's plan does not fully meet the obvious purpose of Sections 204(a)
(3) and 303(e)(3)(H) - that those projects most needed in a State be completed
first.
** "With a guaranteed 75% Federal grant for the cost of projects, the ef-
fective rate of community obligation under the [Act] will be reduced from a
maximum of 70% to a maximum of 25%. This should reduce the need for an
alternative assistance mechanism." (Senator Muskie, Congressional Record,
10/4/72, p. 16879).
"One of the most important provisions of this legislation is that increasing
the Federal share for the construction of sewage facilities to 75% of the total
costs. Present law provides a maximum Federal contribution of 30%, except
for grants in States which are able to contribute 25% of project costs. Com-
munities in our State of West Virginia could seldom raise the required 70%
local share of construction costs. ..." (Senator Randolph, Id., pp. 16879-
80).
"As a result of an amendment I offered in conference, the Federal share of
the cost of any public waste treatment work would be 75%, with the State
and municipality contributing the remaining 25%. This assured high per-
centage of funding should eliminate the situation we have witnessed in which
States and localities postpone the start of needed construction programs while
legislation is pending to provide for a more generous Federal share. " (Sena-
tor Cooper, Id., p. 16881).
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In considering the legislative history indicating approval of the Delaware
plan, quoted supra, it is important to note the Congressionally-approved
"phased" system under which each stage in the construction of a waste treat-
ment facility may be treated as a separate "project" for purposes of project
approval and funding:
"The conferees want to emphasize the complete change in the me-
chanics of the administration of the grant program that is au-
thorized under the conference substitute. Under existing law and
procedure, the Environmental Projection Agency makes the first
payment upon certification that 25 percent of the actual construc-
tion is completed. The remaining Federal payments are also
made in reference to the percentage of completion of the entire
waste treatment facility. This results in applicants absorbing
enormous interest expense and other costs while awaiting the ir-
regular flow of Federal funds. Under the conference substitute,
which is a program modeled after the authority and procedures
under the Federal Air Highway Act, each stage in the construction
of a waste treatment facility is a separate project. Consequently,
the applicant for a grant furnishes plans, specifications, and es-
timates (PS&E) for each state (which is a project) in the overall
waste treatment facility which is included in the term "construc-
tion" as defined in section 212. Upon approval of the PS&E for
any project, the United States is obligated to pay 75 percent of
the costs of that project. Thus, for instance, the applicant may
file a PS&E for a project to determine the feasiblity of a treatment
works, another PS&E for a project for engineering, architectural,
legal, fiscal, or economic investigations, another PS&E for actual
building, etc. In such a program, the States and communities
are assured of an orderly flow of Federal payments and this should
result in substantial savings and efficiency.
(Conference Report 92-1465 (9/28/72)), p. 111.
Congress thus carefully described a mechanism for spreading funds, pro-
moting efficiency, and increasing project "starts, " which are also fundamen-
tal goals of the Delaware system. Delaware can fulfill those goals in large
part by implementation of the system developed by Congress.
It may be significant that the language approving of the Delaware approach
appears on the same page as the material quoted above, removed from it by
one paragraph; it is conceivable that the Delaware system was erroneously
thought to be an example of the approach which Congress intended EPA to
take.
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DISCUSSION - QUESTION 2
This precise question was addressed in our memorandum of November 16,
1972, to the Assistant Administrator for Air and Water Programs. A copy
is attached. The memorandum concludes that the Section 203 constructural
obligation authority may not be used to increase to 75% any Federal grants
made in FY 72 or prior years.
§§§§§§§
TITLE: "Advanced Construction* (Scant Authority-Pursuant to Section 2Q6(.f)
DATE: August 27, 1973
Your memorandum of July 24, 1973, requests advice whether the State of
Hawaii may utilize "advanced construction" grant authority pursuant to Sec-
tion 206(f) of the FWPCA Amendments of 1972. We concur in your conclusion
that Hawaii is not eligible to do so at this time.
j
By the terms of the statute, Section 206(f) "advanced construction" authority
is extremely limited. Section, 206(f) itself provides that the authority may
not be utilized until all funds, previously allotted to a State" . . . have been
obligated under section 203 of the Act. . . ." We understand that Hawaii
has not yet fully obligated its FY 1973 and 1974 allotments. The last sentence
of Section 206(f) states that "advanced construction" may not be authorized
unless there is in effect for the future fiscal year from which funds would
be drawn" . . . an authorization . . . which . . . will insure payment with-
out exceeding the State's expected allotment from such authorization." The
only future year for which there is an authorization in Section 207 of the
Act is for FY 1975. (Section 205{a) requires that Congress determine the
FY 1975 state allotments prior to January 1, 1974, on the basis of the current
survey of construction needs pursuant to Section 516(b) of the Act, so that
there will be no need for Section 206(f) authorizations unless all FY 1973
and 1974 allotments available to a State are obligated substantially prior
to January 1, 1974.) Also, a state which desires to utilize Section 206(f)
authority should insure that its project priority list is submitted accordingly,
since the priority requirements of 40 CFR 35.915 (38 F.R. 5331) would
necessarily be applicable to the approval of projects for payment from later-
year funds. In addition, any projects approved for funding pursuant to Sec-
tion 206(f) would necessarily have to comply with the best practicable
treatment" requirement of Sections 201(g)(2)(A) and 301(b)(2)(B); regulations
to define this requirement have not yet been promulgated. Finally, no pro-
ject would be eligible for payment pursuant to Section 206(f) unless con-
struction on that project had been initiated (as defined in the last sentence
of 40 CFR 35.9053, published at 38 F.R. 5330, on February 28, 1973) after
(a) July 1, 1972 and (b) written approval pursuant to Section 206(f).
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Among the materials submitted by you to this office was an article from the
Honolulu Star-Bulletin which indicates that there may be some misunder-
standing on the part of some Hawaii officials concerning "reimbursement"
authority under the FWPCA. The "reimbursement" authority contained in
Section 8 of the former FWPCA was not carried forward in the 1972 FWPCA
Amendments except for that found in Section 206, which relates only to (a)
reimbursement for costs of certain projects on which construction was initi-
ated prior to July 1, 1972, and (b) the very limited "advanced construction"
authority discussed above.
§§§§§§§
TITLE: Industrial Waste Construction Cost Recovery
DATE: February 27, 1973
FACTS
Section 204(b)(l)(B) of the Federal Water Pollution Control Act Amendments
of 1972 requires grantees to recover from industrial users the cost of treat-
ment works allocable to the treatment of industrial wastes, to the extent
attributable to the federal share. Present EPA regulations (35 F. R. 128,
July 1, 1970), applicable to Section 8 of the former statute, require recovery
of the grantee's share.
QUESTION
Can EPA continue to require recovery of the non-federal share under the
Act as amended?
ANSWER
No; Congress has not delegated to EPA the authority to impose a require-
ment of this nature and none may be inferred.
DISCUSSION
A basic problem is whether the rules which EPA imposes upon grantees must
be based upon statutes and Congressional delegations of rule-making author-
ity or whether EPA may impose any reasonable conditions which do not actu-
ally contradict a statute.
It is settled law that the United States has the authority to fix the
terms and conditions upon which the money allotments to states shall
be disbursed.
(U.S. v. Frazer, 317 F. Supp. 1079, 1083 (1970)).
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The cases establish, however, that Congress possess the power to impose
substantive conditions upon grant recipients, and in the absence of a statu-
tory delegation of rule-making authority we may infer that Congress alone
possesses it. We have searched in vain for judicial support for the notion
of implicit administrative authority to impose substantive conditions on grants
in aid.
Section 204(b)(l)(B) expresses a specific Congressional intent with respect
to industrial cost recovery; namely, that no construction funds may be
granted unless the recipient has made provision for recovery of the federal
share of construction cost attributable to industrial use. Congress debated
the cost recovery requirement at some length (see Cong. Rec., March
27, 1972, Hi488-90, 2504-06; March 28, 1972, ET628-33; and October 4, 1972,
S16881-9, H9118, 9133) and we may infer that if recovery of the local share
was intended Congress would have so provided. Section 204 contains no dele-
gation provision authorizing EPA to promulgate general rules for grant recip-
ients, but directs only that EPA publish guidelines to interpret and apply
the provisions for user charges and industrial cost recovery and promulgate
regulations respecting the proportion of the grantee's retained amount of
recovered cost to be used for future expansion and reconstruction. In the
context of HEW guidelines with respect to non-discrimination in programs
of federal aid to education, the Fifth Circuit in U. S. v. Jefferson County
Board of Education, 372 F2d 836, 837 (1966) indicated that guidelines must
be within the framework of established law:
The guidelines have the vices of all administrative policies estab-
lished unilaterally without a hearing. Because of these vices the
courts, as the school boards point out, have set limits on adminis-
trative regulations, rulings, and practices; an agency construction
of a statute cannot make the law; it must conform to the law and
be reasonable. To some extent the administrative weight of the dec-
larations depends on the place of such declarations in the hierachy
of agency pronouncements extending from regulations down to general
counsel memoranda and inter-office decisions.
Section 501(a), which authorizes the Administrator to prescribe "such reg-
ulations as are necessary to carry out his functions under this Act;" likewise
seems to fall short of authorizing the imposition of local cost recovery as a
condition of receiving funds. While we do not presume to list all the rules
which may be considered "necessary" to carry out the Act, we cannot be-
lieve that the prohibition against federal subsidies to industry authorizes EPA
to prohibit purely local subsidies. While EPA's discretion as to the award
or denial of Title II funds seems rather broad, inasmuch as the Administra-
tor must approve an applicant's "plans, specifications, and estimates "before
the obligation to pay arises, we foresee little likelihood that the courts would
be much impressed by the argument that construction grants are a "privi-
lege", rather than a Bright", and that EPA may consequently impose such
conditions as it pleases. (See Skoler, Lynch & Axilbund, Legal and Quasi-
Legal Considerations in New Federal Air Programs, 56 Geo. L. J. 1144
U968).The "rights-privileges" argument seems particularly weak when
we consider that a municipality may be subjected to enforcement proceedings
under Section 309 if it does not construct adequate treatment works.
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Although we need not determine the validity of the cost recovery regulations
implementing Section 8 of the former statute, a strong argument can be made
that the regulations were valid. Under the former statute the Administra-
tor's discretion to award or deny funds was probably broader than it is now,
and Congress had not spoken with respect to cost recovery.
§§§§§§§
TITLE: Great Lakes Area Treatment Works Projects
DATE: June 22, 1973
FACTS
Your memorandum of March 26, 1973, notes that it is agency policy, under
the Federal Water Pollution Control Act Amendments of 1972, to encourage
certain states to give priority to treatment works projects which are needed
to satisfy the commitments made by the United States in the U. S. - Canada
Great Lakes Water Quality Agreement of April, 1972 (hereinafter the "Agree-
ment"). You have inquired whether the Administrator may strengthen that
policy by requiring Great Lakes states to establish procedures in their pro-
ject priority systems which would provide preference for projects needed
to comply with the Agreement.
QUESTION
May the Administrator require a State to establish priority evaluation cri-
teria which would favor treatment works projects needed to satisfy commit-
ments made by the U. S. in the Great Lakes Water Quality Agreement?
ANSWER
Yes. However, we urge policy consideration of the propriety of such a re-
quirement. See discussion.
DISCUSSION I
Resolution of your inquiry first requires examination of the relevant pro-
visions and interrelated policies of the Boundary Waters Treaty of 1909,
the Agreement, and the FWPCA Amendments.
A. The Boundary Waters Treaty.
Article IV of the Boundary Waters Treaty of 1909 (33 Stat. 2448) between
the U.S. and Canada states in pertinent part as follows:
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"It is ... agreed that the waters herein defined as boundary waters
and waters flowing across the boundary shall not be polluted on either
side to the injury of health or property on the other. "
The term "boundary waters" is defined in the Preliminary Article of the treaty
as follows:
"... boundary waters are defined as the waters from main shore to
main shore of the lakes and rivers and connecting waterways, or the
portions thereof, along which the international boundary between [the
U.S. and Canada] passes, including all bays, arms, and inlets thereof,
but not including tributary waters which in their natural channels
would flow into such lakes, rivers, and waterways, or the waters of
rivers flowing across the boundary."
B. The U.S. - Canada Agreement of April, 1972.
The Agreement, by its own terms, was designed to implement Article IV
of the Boundary Waters Treaty of 1909. The Agreement covers U.S. -
Canada "boundary waters," as that term is defined in the treaty; however,
not all "boundary waters" are included, but only those which are within the
"Great Lakes System," a term which is not defined. Articles II and III of
the Agreement, and its annexes, establish general and specific water quality
objectives for boundary waters. Article V provides that:
"Programs and other measures directed toward the achievement of
the water quality objectives shall be developed and implemented as
soon as practicable in accordance with legislation in the two countries.
Unless otherwise agreed, such programs and other measures shall be
either completed or in process of implementation by December 31,
1975."
Article V goes on to specify the nature of the programs, which are to include
"Programs for the abatement and control of discharges of municipal sewage
into the Great Lakes System" (including treatment works construction, finan-
cial support for such construction, and monitoring, surveillance and enforce-
ment activities), and "programs for the abatement and control of pollution
from industrial sources," as well as programs directed toward eutrophica-
tion, non-point source pollution, and pollution from shipping and dredging
activities and onshore/off shore facilities.
Article IV of the Agreement provides that:
"Water quality standards and other regulatory requirements of the
Parties shall be consistent with the achievement of the water quality
objectives. The Parties shall use their best efforts to ensure that
water quality standards and other regulatory requirements of the
State and Provincial Governments shall similarly be consistent with
the achievement of the water quality objectives. ' (emphasis added).
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Article X of the Agreement states that the Parties ". . . commit themselves
to seek . . . the cooperation of the State and Provincial Governments in all
matters relating to this agreement. " (emphasis added). Article I(j) defines
the term "State Governments "to mean the governments of the states of Illinois,
Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin.
C. The FWPCA Amendments.
Section 511 (a) of the Act states that the Act ". . . shall not be construed as
. . . affecting or impairing the provisions of any treaty of the United States. "
Section 101(c) encourages international cooperation in pollution abatement.
Section 7 of the Act states:
"The President shall undertake to enter into international agreements
to apply uniform standards of performance for the control of the dis-
charge and emission of pollutants from new sources, uniform controls
over the discharge and emission of toxic pollutants, and uniform con-
trols over the discharge of pollutants into the ocean. For this purpose
the President shall negotiate multilateral treaties, conventions, res-
olutions, or other agreements, and formulate, present, or support pro-
posals at the United Nations and other appropriate international fo-
rums. "
Also of significance are the provisions of Section 310 of the Act, dealing
with international pollution abatement. Under that section, the Administrator
is empowered to investigate and initiate enforcement proceedings to abate pol-
lution which ". . . endangers the health or welfare of persons in a foreign
country . . . „ "
II.
The materials discussed above clearly establish that the United States is com-
mitted to a policy of cooperation with Canada in alleviating common water pol-
lution problems, and that the general policies contained in the FWPCA Amend-
ments are fully consistent with the treaty and the Agreement. In that con-
text, we now turn to a discussion of the general impact of the treaty and the
Agreement on Federal-State relationships.
Article VI of the U.S. Constitution states in part that" ". . . all treaties
. . . shall be the supreme law of the land; and the judges in every state
shall be bound thereby, anything in the constitution or laws of any state to
the contrary notwithstanding. " The Agreement, of course, is not a "treaty, "
since it was not the subject of concurrence by the Senate pursuant to Article
II of the Constitution; nevertheless, it represents an exercise of Federal in-
ternational sovereignty pursuant to, and in accordance with, both legislation
and a treaty, and contrary State policy cannot prevail against it:
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"Plainly, the external powers of the United States are to be exercised
without regard to State laws or policies. The supremacy of a treaty
in this respect has been recognized from the beginning. Mr. Madison
. . . said that if a treaty does not supersede existing State laws,
as far as they contravene its operation, the treaty would be ineffective.
•To counteract it by the supremacy of the State laws, would bring on
the union the just charge of national perfidy ...» And while this
rule in respect of treaties is established by the express language of
clause 2, article 6, of the Constitution, the same rule would result
in the case of all international compacts and agreements from the
very fact that complete power over international affairs is in the na-
tional government and is not and cannot be subject to any curtailment
or interference on the part of the several States ... in respect of
all international negotiations and compacts, and in respect of our for-
eign relations generally, State lines disappear." U. S. v. Belmont,
301 U.S. 324, 331-2(1937).
To the same effect, see Zschernig v. Miller, 389 U.S. 429 (1968); Koloyrat
v. Oregon, 366 U.S. 187 (1961); U.S. v. Pml, 315 U.S. 203 (1942);lEIFman &
Co. v. U.S., 224 U.S. 583 (1911); and, generally, 14 Digest of International
L w Sections 22-25 (Department of State Publication 8547 (September, 1970)).
Executive agreements may be legally inoperative to the extent that they con-
flict with an Act of Congress in an area of Congressional competence. U. S.
v. Capps, Inc., 204 F9d 655 (4th Cir., 1953). As indicated in the background
discussion under I above, however, the general policies of the Agreement
in no way appear inconsistent with the general policies of the FWPCA Amend-
ments, and, although we have not examined them in detail, the water quality
objectives set forth in the agreement appear to fully comport with EPA ob-
jectives under the FWPCA Amendments.
III.
The FWPCA Amendments generally leave the matter of determining priority
of treatment works projects to the States. At the same time, however,
the Act charges EPA with responsibilities for determining both the adequacy
of each State's system of prioritization and the consistency of the system
with the objectives of the Act. Section 204 of the Act provides that the
Administrator may not approve a grant for any treatment works in a State
unless he first determines that such works have been certified by the State
as entitled to priority over other such works". . . in accordance with any
applicable State plan under section 303(e) of this Act . . . ." Section 303 (e)
requires each State to submit to the Administrator for his approval a pro-
posed continuing planning process, including a description of priority needs,
. . . which is consistent with this Act. " (emphasis added). Under the pro-
vision of construction grant regulations governing priority certification
(40 CFR 35.915), the Administrator may approve or disapprove the State
priority system, the criteria used by the State in establishing relative pri-
orities, and municipal and project lists established by the State under its
system.
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The problem posed by your inquiry relates to the gap, unfilled by explicit
legislative language, between the strong Federal policies favoring Great
Lakes Water pollution abatement and the fact that project priorities are pri-
marily a matter for State determination. We believe that the gap may be
bridged by combined reference to the policies of the Agreement and the con-
sistent policies of the FWPCA Amendments; the Agreement's supremacy
over countervailing State policies; and the responsibilities the Administrator
has for determining that project prioritization in the States comports with-
the policies of the Act.
As we understand it, the objectives of the Agreement may largely be thwarted
unless Great Lakes area treatment works projects are undertaken at an early
stage. Furthermore, emphasis on Great Lakes projects would appear to be
appropriate in view of the provisions of Section 310 of the Act, discussed
above. We view these considerations as colateral arguments in support of
an affirmative answer to your inquiry.
While we have answered your inquiry in the affirmative, we have not dis-
cussed matters relating to the precise means by which preferential priority
requirements for Great Lakes projects would be implemented. This is of
concern to us, and we request consultation with this office prior to develop-
ment of mechanisms for implementing such requirements.
Finally, we strongly urge policy consideration of the propriety of implement-
ing such policies. Discriminatory requirements which may prove disadvan-
tageous to non-Great Lakes projects in a state should be a matter of con-
siderable concern, particularly in view of the limitation on resources re-
sulting from allotment of less than full Congressionally-authorized sums for
treatment works construction.
§§§§§§§
TITLE: Use of Revenue Sharing Funds for Waste Treatment Projects
DATE: June 25, 1973
Questions have arisen concerning the extent to which revenue sharing funds
obtained by communities or states under the State and Local Fiscal Assis-
tance Act of 1972 (PL 92-512) may be utilized for projects funded by EPA.
Generally, revenue sharing funds may not be used as matching funds under
EPA grants, as is made clear in regulations issued on April 10, 1973 by the
Department of Treasury (31 CFR Part 51, published at 38 F. R. 9132):
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§51. 30 Matching funds.
"(a) In general. — Entitlement funds may not be used, directly or
indirectly, as a contribution in order to obtain any Federal funds under
any Federal program. The indirect use of entitlement funds to match
Federal funds is defined to mean the allocation of entitlement funds
to a nonmatching expenditure and thereby releasing or displacing local
funds which are used for the purpose of matching Federal funds. This
prohibition on use of entitlement funds as matching funds applies to
Federal programs where Federal funds are required to be matched
by non-Federal funds and to Federal programs which allow matching
from either Federal or non-Federal funds. "
However, revenue sharing funds may be used to "supplement" Federal grant
funds, as further set forth in §51. 30(g) of the Treasury regulations:
"(g) Use of entitlement funds to supplement Federal grant funds. The
prohibition on use of entitlement funds contained in paragraph (a) of
this section does not prevent the use of entitlement funds to supplement
other Federal grant funds. For example, if expenditures for a project
exceed the amount available from non-Federal funds plus matched
Federal funds, the recipient government may use entitlement funds
to defray the excess costs: Provided, however, that the entitlement
funds are not used to match other Federal funds; And Provided further,
that in the case of a unit of local government, the use of entitlement
funds to supplement Federal grants is restricted to the category of
expenditures as set forth in §51. 31. "
Accordingly, since "environmental protection (including sewage disposal,
sanitation, and pollution abatement) is an explicitly authorized expenditure
in §51. 31 of the Treasury regulations, cost overruns or sewer line or land
acquisition costs not included within the scope of an EPA grant as allowable
costs may be funded through any revenue sharing funds available to the EPA
grantee.
In a memorandum to the Director, Grants Administration Division, dated
August 21, 1972 concerning the use of other Federal grant funds to meet EPA
matching requirements, Mr. Settle of this office set forth the general rule
that:
"Funds granted by other Federal agencies for projects may not, ab-
sent explicit statutory authorization, be used to meet (EPA statutory
grant'matching1 requirements for those same projects.
His memorandum discusses a number of other Federal statutes which do per-
mit at least limited use of Federal funds for matching purposes. Federal
revenue sharing funds available under PL 92-512 fall within the "general rule
and cannot be used to match EPA grant funds. >
Enforcement of this prohibition upon the use of Federal revenue sharing funds
is a function of the Department of Treasury, which should be notified of any
apparent violation.
§§§§§§§
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SOLID WASTE GRANTS
TITLE: Grants To States Under Solid Waste Disposal Act, As Amended
DATE: August 23, 1 971
QUESTION NO. 1
May grant funds received under the Solid Waste Disposal Act, as amended,
be used for reimbursement of State revenue losses resulting from State tax
deductions and exemptions allowed to businesses for expenditures on refuse
separating and processing equipment?
The Solid Waste Disposal Act, as amended, provides for grants for the pur-
pose of research, demonstrations, training and planning by organizations
eligible to receive such grants pursuant to the provisions of Section 204,
205, 207, 208, and 210. Section 215(b) prohibits grants to private profit-
making organizations. In our opinion, reimbursement for State revenue
losses does not fall within the scope of the studies, grants and contracts
authorized by the Act. Accordingly, we concur in the tentative negative
response furnished to Mr. Harrington in the letter from your office dated
April 29, 1971.
-/••
QUESTION NO. 2
May the Massachussetts State Science Foundation qualify as a grant recipi-
ent for research and development studies under the Solid Waste Disposal
Act, as amended ?
The Resource Recovery Act of 1970 (Pub. L. 91-512) substantially expand-
ed eligibility for solid waste management grants and contracts. Specifical-
ly, for the purpose of research and development, Section 204 now authorizes
grants or contracts to "appropriate public (whether Federal, State, inter-
state, or local) authorities, agencies, and institutions, private agencies and
institutions, and individuals" for the broadly stated purposes now set forth
in Section 204. Accordingly, there would appear to be no reason why the
Mas sachus setts State Science Foundation would not be eligible to apply for
solid waste management contracts or grants, in competition with other eli-
gible organizations. However, Section 204 funds may only be distributed
for specific research and development projects approved by your office for
Federal funding. The Mas sachus setts State Science Foundation may not
receive Section 204 funds unrelated to specific projects, nor may it receive
Section 204 funds for distribution to educational institutions and private
corporations for projects selected or approved solely by MSSF.
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QUESTION NO. 3
What is the present status of the September 5, 1968 memorandum of opinion
of the HEW Office of the General Counsel with respect to Solid Waste Manage-
ment planning grants ?
At the time that the September 5, 1968 memorandum was written Section
206 of the Solid Waste Act (Pub. L. 89-272) restricted eligibility for planning
grants to the "single state agency11 designated or established to carry out
State-wide planning. The memorandum therefore properly held that this
single State agency had to retain fiscal and program responsibility under
such grants, and any subagreements with local agencies by the State Agency
were to assure that planning remained State-wide in scope and that control
and responsibility for planning were to remain with the "single State agency".
Since that time, however, the Resource Recovery Act of 1970 has sub-
stantially changed the provisions of the Solid Waste Disposal Act relating
to planning grants, which are now authorized to be made to "State, inter-
state, municipal, and intermunicipal agencies, and organizations composed
of public officials which are eligible for assistance under section 701 (g) of
the Housing Act of 1954", pursuant to Section 207 of the Solid Waste Disposal
Act, as amended. Organizations eligible to receive these section 207 planning
grants may enter into such subagreements as are necessary to accomplish
the purposes of the grant, provided that the grantee retains control of and
responsibility for the grant project and does not serve as a straw man or
mere conduit. Generally, these subagreements must be embodied in written
instruments, whether in the form of subgrants, contracts, purchase orders,
or the like, so that the grant expenditures may be properly accounted for and
audited.
§§§§§§§
TITLE: Solid Waste Disposal Act -- Grant Support for Site Surveys
DATE: August 31, 1971
FACTS
By memorandum of July 27, 1971, this office was requested to issue an
opinion respecting certain questions concerning the authority of the Solid
Waste Management office to fund programs which are used to develop local
and regional solid waste management plans.
QUESTION NO. 1
5
Are site surveys, which include such tasks as soil borings, soil analyses,
geological investigations and hydrologic inventories, eligible for funding
under Section 207 of the Solid Waste Disposal Act?
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ANSWER
Yes. Section 204 of the Act, would authorize Federal participation in such
activity.
DISCUSSION
The basic authority to participate in site surveys is found in Section 204(a)
(2) and Section 204(b)(3) together with Section 204(a)(l) and (2). Section 204(a)
authorizes the Administrator to cooperate with and render financial as-
sistance to appropriate public authorities in the conduct of and coordination
of "research, investigations, . . . surveys and studies relating to (2) the
operation and financing of solid waste disposal programs." In order to
carry out the investigations and surveys outlined above, Section (b)(3) au-
thorizes the Administrator to make grants for research . . . surveys and
demonstrations . . . ." With specific regard to planning grants, Section
207(a)(l) of the Act authorizes the Administrator to issue grants for "making
surveys of solid waste disposal practices and problems within the juris-
dictional areas" of the agencies to which the grants are made. Under Section
207(a)(2) the Administrator is to make grants for "developing and revising
solid waste disposal plans as part of regional environmental protection
systems for such areas. . . . and studies of the effect and relationship
of solid waste disposal practices on areas adjacent to waste disposal sites."
This authority to issue grants for survey and plan purposes, and to study
the effect and the relationship of solid waste disposal practices on areas
near disposal sites would seem to include such tasks as soil borings, soil
analyses, geological investigations and hydrologic inventories on different
sites within the jurisdiction of the grantee and therefore such activity would
be eligible for planning grant assistance under the Act.
QUESTION NO. 2
If site surveys are eligible for participation for Federal funding, is there
any limitation on the detail specificity or scope of the work eligible for
such funding?
ANSWER
Yes. Under the above outlined sections of the Solid Waste Disposal Act
eligible costs would be somewhat limited.
DISCUSSION
Eligible costs would be limited to the survey and study of disposal prac-
tices on areas adjacent to proposed waste disposal sites; such study would
necessarily include analyses such as hydrological inventories, geological
surveys and other necessary technical evaluation sufficient to determine
the impact of solid waste disposal on any given site under consideration
for a disposal site. Moreover, Section 207 (a)(l) would confine the area
of study to the jurisdictional limit of the grantee agency.
§§§§§§§
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AIR GRANTS
TITLE: Use of Local Funds on Air Pollution Control Program Grants
DATE: January 29, 1973
FACTS
In your letter of December 11, 1972, you inquired whether the City of
Chicago, Department of Environmental Control, could lawfully use local
funds which were non-matchable for purposes of earning a grant for pro-
gram improvement, but which were nonetheless required to be spent in order
to obtain such a grant, for the purpose of matching a grant for program
maintenance under Section 105 of the Clean Air Act 42 USC (1857(a)(l)(A).
Chicago spent $993, 989 for air pollution control programs during 1967 which
amount became the grantee's PEP (Program Exclusive of Project) base
for 1968. To obtain a grant for improvement in 1968, Chicago was required
to spend at least as much in 1967, and this amount was ineligible for match-
ing the 1968 phase of the multi-year improvement project. As a condition
to receiving the 1968 improvement grant of $393,000, the grantee was thus
required to spend $196,500 in addition to its PEP base expenditures.
On July 1, 1968, Chicago received a grant of $479, 200 for the maintenance
of its air pollution control program, as authorized by the Clean Air Act
Amendments of 1966, P. L. 89-675. The grantee's PEP base expenditures
were used as part of its 50% matching share for the maintenance grant.
A similar arrangement was permitted during 1969 and 1970.
A bar graph is attached which illustrates the maintenance and improvement
grants made to Chicago during 1968, 1969, and 1970 and Chicago's un-
audited reports of expenditures during those years.
QUESTION
Does any legal objection exist to a grantee's use of its PEP base expend-
itures for the purpose of matching a maintenance grant, where such expend-
itures were required as a condition to receiving an improvement grant but
which could not be used for matching an improvement grant?
ANSWER
No; such matching was lawful, inasmuch as the regulations then in effect
were consistent with law and did not forbid the practice.
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Section 104 (now 105) of the Clean Air Act, as amended by P. L. 89-675
in 1966, stated:
(a) The Secretary is authorized to make grants to air pollution con-
trol agencies in an amount up to two-thirds of the cost of developing,
establishing, or improving, and grants to such agencies in an amount
up to one-half of the cost of maintaining, programs for the preven-
tion and control of air pollution. . . (b) From the sums available
for the purpose of subsection (a) of this section for any fiscal year,
the Secretary shall from time to time make grants to air pollution
control agencies upon such terms and conditions as the Secretary
may find necessary to carry out the purpose of this section. In
establishing regulations for the granting of such funds the Secretary
shall, so far as practicable, give due consideration to (i) the popula-
tion, (2) the extent of the actual or potential air pollution problem,
and (3) the financial need of the respective agencies. No agency shall
receive any grant under this section during any fiscal year when
its expenditures of non-Federal funds, for other than non-recurrent
expenditures, for air pollution control programs will be less than
its expenditures were for such programs during the preceding fiscal
year; and no agency shall receive any grant under this section with
respect to the maintenance of a program for the prevention and con-
trol of air pollution unless the Secretary is satisfied that such grant
will be so used as to supplement and, to the extent practicable,
increase the level of State, local, and other non-Federal funds that
would in the absence of such grant be made available for the main-
tenance of such program, and will in no event supplant such State,
local, and other non-Federal funds...
Section 104 may be summarized as follows: (1) no agency may receive an
improvement grant or a maintenance grant unless its local expenditures
(exclusive of non-recurring costs) will be at least as great as those of the
preceding fiscal year, and (2) no maintenance grant may be made unless
the grant will be used to supplement, not supplant, the local funds which
would otherwise be available for air pollution control programs.
The statute thus authorizes two distinct types of grants to assist local air
pollution control agencies. The older "improvement" grant authority pro-
vides for a federal grant of up to two-thirds of the cost of developing,
establishing, or improving such programs, and the authority added by P. L.
89-675 provides for a federal grant of up to one-half the cost of maintaining
such programs. ^
Although current regulations, 40 CFR 35.507-2, provide that no federal
grant at the two-thirds level will be available once an initial premaintenance
program has expired, the regulations in effect at the time the grants in
question were made contained no such restriction. Both regulatory ap-
proaches seem consistent with the 1966 Amendments, since Congress evi-
dently intended that the maintenance grant authority supplement existing
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authority for improvement grants, so that local agencies would not become
ineligible for federal assistance when their programs reached maturity.
A similar intention seems to underlie the provision that non-recurring ex-
penditures were not to be considered part of the grantee's required base
expenditures. Thus, a program may be "established1" with two-thirds federal
funding, then "maintained|T at one-half federal funding; and a separate though
simultaneous "improvement" project at two-thirds federal funding is also
permissible. Whether a particular grant was to be for "improvement"
or for "maintenance" thus appears to have been a matter for administrative
determination in accordance with the criteria of 42 CFR, Part 56, then in
effect. (See Conference Report, H.R. No. 1003, 89th Cong., 2dSess.,
p.4; House Report No. 2170, 89th Cong., 2d Sess., p. 4; and cong. Record,
July 12, 1966, p. 5258.)
The regulations applicable to the grants in question are found in 42 CFR,
Part 56, as amended by 32 F.R. 104, May 20, 1067. The PEP requirement
was established by §56.4(3), which provided:
No grant for project support (note—defined in §56.2(d) as an im-
provement grant) shall be made to any applicant during any fiscal
year unless the Surgeon General finds that the applicant's expend-
itures of non-Federal funds (for other than nonrecurrent expend-
itures) for its air pollution program (exclusive of its expenditures
for the approved project) will not be less during such fiscal year
immediately preceding the beginning of the project with respect to
which a grant is requested.
That the regulations contemplated contemporaneous receipt by a single gran-
tee of both a maintenance grant and an improvement grant is indicated by
§56.4(i)(2), which stated:
The term "non-recurrent expenditures" means expenditures for the
following purposes: (vi) Funds utilized for matching purposes for
improvement projects under section 104 (note--now section 105) of
the Act as part of a program for which maintenance support is
also provided.
A multi-year project for improvement was thus established, and the grantee
was obligated to spend not less than the PEP base as a condition of receiving
each annual award under the project. While neither a maintenance grant
nor an improvement grant could be made unless the applicant's expenditure
of non-Federal funds would not be less than its expenditures of the previous
year, there was no requirement that the grantee spend any amount "exclusive
of the project" as a condition of receiving a maintenance grant. The PEP
concept applied exclusively to projects for improvement because such pro-
jects were considered to be separate from the existing program. Nothing
in the regulations forbade the grantee to use the PEP funds generated under
previous phases of a multi-year improvement project for the purpose of
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matching grants for program maintenance, inasmuch as §56.4(i)(2), supra,
applied only to funds actually used to match a particular grant rather than
to PEP funds. The PEP base expenditures were thus not matching funds,
but were an independent condition of receiving the improvement grant for
which additional matching funds were necessary.
In summary, we have not found any statute, regulation, or special grant
condition which forbade the grantee to sue its PEP base expenditures to
match grants for program maintenance.
§§§§§§§
TITLE: Consolidation of Air Program Grants Within a State
DATE: February 21, 1973
FACTS
Section 105 of the Clean Air Act, as amended (42 U. S. C. 1857c), authorizes
the award of grants for support of air pollution planning and control programs
to state air pollution control agencies and to local agencies. In order to
maximize the similarity of and coordination between local programs and the
state program, and for administrative convenience, Region VIII desires to
consolidate EPA assistance for a state agency and local agencies within that
state into one grant to the state agency in selected states within Region VIII.
QUESTION;
May program grants for a state air pollution control agency and local
agencies within that state be consolidated into a single grant to the state
agency for all air pollution control agencies within a state ?
ANSWER;
Yes, subject to the considerations discussed below.
DISCUSSION;
The proposed grant, which would consolidate air prograrlpi grants within a
state into a single grant, would be analogous to the "comprehensive grant"
authorized under 40 CFR 30.205 and shares many of its advantages, but
would not require the Administrator's approval otherwise required for com-
prehensive grants (unless accomplished within the context of a comprehen-
sive grant to a state), because it would lie clearly within the grant award
authority of the Regional Administrator under present law and regulations.
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Existing regulations (40 CFR 35.400 et seq., 37 F.R. 11655, June 9, 1972)
authorize, but do not require, grants to~alr pollution control agencies within
a state. The Regional Administrator may determine to fund all or some of
the local agencies within a state through the mechanism of the state pro-
gram grant. Such a consolidation is particularly appropriate where state
legislation requires that the state agency exercise responsibility for the local
programs or the local agencies agree to permit the state agency to exercise
such responsibility to the extent implicit in the budgetary and program con-
trol of the consolidated grant mechanism. It is apparent that effective uti-
lization of a consolidated single grant is dependent upon the voluntary co-
operation and consent of the local agencies within the state.
As we understand the proposed award, a written subagreement would be ex-
ecuted between the state agency and each local agency, pursuant to which
Federal grant funds would be made available to each local agency through
the state agency in accordance with the terms of the consolidated grant
agreement. Article 11 of Appendix A in 40 CFR part 30 requires that sub-
agreements be approved by EPA; such review and approval should insure
that appropriate EPA program requirements "flow down" through the state
agency to the local agencies. Article 11 provides that such a subagreement
"may not be in the nature of a grant. " In our view, the consolidation mech-
anism would not violate this prohibition, since the agreement with each
local agency would be contractual in nature (insofar as it would effect ac-
complishment locally of the state agency's air pollution control responsi-
bility as defined in the grant agreement between EPA and the state agency),
and also because the local agency is an entity otherwise eligible to receive
adirect grant under Section 105.
A key matter of concern should be the requirements of the statute and pre-
sent regulations concerning the "matching" and "maintenance of effort" as-
pects of air program grants. Expenditures by the state agency must meet
the maintenance of effort requirement in Section 105(b). Under present
regulations the state agency must also continue to meet the "matching" re-
quirement set forth in 40 CFR 35. 507-2 and 35. 507-3j contributions of local
agencies maybe included within the state matching share in the same manner
as direct state appropriations for the state program. As a matter of policy,
it would be appropriate to insure the contributions by the local agencies
are generally the same as the matching requirements which would otherwise
apply if separate direct grants were awarded.
In summary, this office favors experimentation with the proposed grant con-
solidation, which appears to offer a number of possibilities for enhancing the
effectiveness of the air pollution control effort within a- state. Experience
with the consolidated air program grant mechanism may justify revision of
present regulations to require funding of state and local air programs upon
such a basis.
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In our opinion, award of the proposed consolidated air program grant lies
within the Regional Administrator's award authority under existing regula-
tions; no deviation request (40 CFB 30.1001)is required. The extent to which
the provisions of the subagreements between the state agency and the local
agencies should reflect provisions which would otherwise be required under
present regulations if a separate grant were awarded to each local agency
is a policy matter within the discretion of the Regional Administrator.
§§§§§§§
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GRANTS: OTHER
TITLE: Legal Review of EPA Contracts and Grants
Contracts and grants generated by the respective EPA offices in the Washing-
ton Metropolitan area are legal instruments which should be subject to legal
review. I/ Accordingly, it is our opinion that (1) EPA policy should be that
all procurements negotiated or advertised, amounting to upwards of $10,000
and grants in amount upwards to $50,000 should be legally reviewed to the
maximum extent consistent with the availability of lawyers assigned to the
Office of the Assistant General Counsel, Grants and Procurement (OGC-GP).
(2) Procurements and grants exceeding $100, 000 or having a significant im-
pact on EPA programs or policies, should in all instances, be legally re
viewed by OGC-GP. (3) Legal bounsel from OGC-GP should participate fully
in the entire procurement process from the stage of advance procurement
planning to contract completion or termination and close out. (4) Legal coun-
sel from OGC-GP should serve on Boards of awards and review and concur
in all written determinations and findings relating to contracts and grant
modifications in amounts of $10, 000 or more.
Construction grants or grants or contracts made out of EPA regional offices
should, in accordance with the terms set forth above, be reviewed by EPA
regional counsel.
The implementation of the above review will provide a uniform, positive legal
overlook by the Office of General Counsel with respect to all EPA procure-
ment and grants and should be effectuated no later than October 1, 1971.
i] APP l-451(c) Any contract is essentially a legal document and, as such,
every action leading to the award of a contract, contract performance, and
completion or termination of a contract inherently involves legal considera-
tions. While the contracting officer is the exclusive agent of the Government
for entering into and administering contracts andis responsible for coordinat-
ing his team of advisors, he is not completely free to evaluate the legal
advice of his legal counsel and act in a manner inconsistent therewith. The
contracting officer cannot properly make an award of a contract which fails
to meet all legal requirements. If a proposed course of action is determined
by procurement legal counsel to be legally insufficient, the contracting officer
shall take steps to overcome the legal objections to the proposed action.
Failing such resolution at purchasing office level, the contracting officer
shall refer the matter to the cognizant Head of Procuring Activity for
resolution.
§§§§§§§
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TITLE: Use of Other Federal Grant Funds to Meet EPA Matching
Requirements
DATE: August 21, 1972
FACTS;
Questions have arisen concerning the extent to which grantees under EPA
programs may, in order to comply with statutory matching requirements of
such programs, use funds received under other Federal grant programs.
Recently, we received from your office the specific inquiry whether funds
granted pursuant to the New Communities Act of 1968 (42 U.S.C. 3901
et seq.,) may be used by a granted to meet the 25% matching requirement of
Section 208(b)(2) of the Solid Waste Disposal Act of 1965, as amended (42
U.S.C. 3245(b)(2)).
QUESTION:
To what extent may other Federal grant funds, including funds granted pur-
suant to the New Communitites Act of 1968, be used by EPA grantees to
meet statutory matching requirements?
ANSWER;
Funds granted by other Federal agencies for projects may not, absent explicit
statutory authorization, be used to meet EPA statutory grant "matching"
requirements for those same projects. Since no such authorizing language
is contained in the New Communities Act of 1968, nor in legislation per-
taining to the programs for which the Act authorizes supplementary grants,
funds granted by the Department of Housing and Urban Development (HUD)
pursuant to the Act may not be used to meet the matching requirements of
EPA programs, including the solid waste resource recovery program. How-
ever, authorization for such use of non-EPA funds is contained in other
statutory grant programs.
DISCUSSION:
Our memorandum to you dated August 2, 1972, concluded that funds under
HUD's "Model Cities" program could be used by a grantee to meet the match-
ing requirements of EPA's solid waste resource recovery program, because
such use is explicitly authorized by Section 105 of the Demonstration Cities
and Metropolitan Development Act of 1966, as amended (42 U.S.C. 3305(d)).
Absent such explicit statutory authorization, opinions of the Comptroller
General indicate that other Federal grant funds may not be so. used for
matching.
In 47 Comp. Gen. 81 (July 28, 1967) the Comptroller General disapproved
use for the same project of Federal grant funds from one agency to match
grant funds available from another agency under legislation providing that
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"the grantee agrees to pay the remaining cost." In the view of the Comp-
troller General, the latter requirement presented the agency with a duty
to require the grantee to pay costs in excess of grant amounts. The agency
has a vested right, which could not be waived, to require grantees to com-
plete assisted projects without further costs to the Government. In a re-
lated context, the Comptroller General has also held that to permit grantees
to use Federal grant funds under one program to match funds under another
program would permit a grantee to obtain funds under two federal grant
programs on a basis more favorable than that intended by Congress. 32
Comp. Gen. 140 (September 25, 1952).
Statutory language pertaining to matching funds varies from program to
program; however, these opinions of the Comptroller General require the
conclusion that explicit statutory authority is needed for use of one Federal
agency's grant funds for matching another agency's grants. Such authority
will generally be found in the non-EPA program legislation, for it is under
that legislation that the funds to be used for matching are appropriated.
Although EPA grant program legislation must permit use of such funds
for matching purposes, the typical silence of EPA legislation must be taken
as authorization, since otherwise the explicit authorization in the non-EPA
legislation would be frustrated.
Against the foregoing background, it may be seen that New Communities
program grants may not be used to meet EPA matching requirements. That
program, administered by HUD, is primarily concerned with bond guaran-
tees for localities involved in community land development. In addition, how-
ever, 42 U.S.C. 3911 authorizes the Secretary, HUD, to make grants to
State and local agencies carrying out "new community assistance projects"
(defined as projects assisted by grants under 7 U.S.C. 1926(a)(2), 42 U.S.C.
1500-1500e, or 42 U.S.C. 3102) to the extent the Secretary determines
such grants are necessary for carrying out a development project given
assistance, generally in the form of bond guarantees, under the New Com-
munities Act. Thus, grants authorized by the New Communities Act are
designed to supplement certain other grants. Stated another way, any pro-
ject for which grant funds are sought under 42 U.S.C. 3911 must, as a
condition to receiving such grants, already be in receipt of grant funds
under one or more of the three other programs denominated above. Briefly
stated, those three programs are as follows:
-7 U.S.C. 1926(a)(2) (Section 306(a)(2) of the Consolidated Farmers
Home Administration Act of 1961, as amended), authorizes the
Secretary of Agriculture to make grants to finance projects for water
storage or treatment works, and for waste collection and treatment,
in rural areas.
-42 U.S.C. 3102 (Section 702 of the Housing and Urban Develop-
ment Act of 1965, as amended) authorizes the Secretary, HUD, to
make grants to finance projects for basic public water and sewer
works (other than "treatment works" as defined in the Federal
Water Pollution Control Act).
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-42U.S.C. 1500-1500e (Sections 701-10 of the Open Space Land
Act of 1961, as amended), authorize a variety of grants designed
to aid acquisition and development of urban parks, and historic pre-
servations.
Neither the New Communities Act, nor the three grant programs supple-
mented by that Act, explicity authorize use of grant funds for matching pur-
poses under their Federal grant programs. The four programs are silent
on the issue; thus, the negative impact of the cited Comptroller General
Decisions cannot be avoided.
Although New Communities Act funds may not be used for matching EPA
grants, there are a number of other Federal grant programs under which
funds can be so used. As a frame of reference for discussion of such
programs, we briefly mention the apparent bases of non-Federal matching
requirements and the exceptions.
Besides reduction of Federal costs and increased distribution of available
funds, an obvious purpose of matching requirements is to require the grant-
ee to have a substantial financial interest in the assisted project, thus as-
suring concern for program objectives and for efficiency and economy. Some
grantees, however, may not have the capacity to participate financially in
a given project to the extent required by matching provisions, although there
may exist a definite need for the benefits of the project. In certain pro-
grams, Congress has dealt with this situation by including authorization
which, in effect, allows substitution of Federal'grant funds for local funds
to meet matching requirement of other Federal matching programs.
Typical of such authorization is that found in the Public Works and Economic
Development Act of.1965, as amended (42 U.S.C. 3121 et seq.,) which
has as its purpose, as stated in 42 U.S.C. 3121, the assistance of areas of
substantial and persistant unemployment in planning and financing public
works and economic development. The program is administered by the
Secretary of Commerce. 42 U.S.C. 3131(a)(2) authorizes supplementary
grants so that States and localities within redevelopment areas may take
maximum advantage of other Federal grant programs ". . .for which they
are eligible but for which, because of their economic situation, they cannot
supply the required matching share. "
Under the Emergency Employment Act of 1971, 42 U.S.C. 4871 et seq.,
the Secretary of Labor is authorized to make financial assistance available
to government entities to provide employment ". . . during times of high un-
employment" in jobs providing needed public services. The Act permits
use of granted funds for matching purposes under other Federal programs,
provided that , as stated in 42 U.S.C 4881(a)(l)(C), the funds will not ". . .
result in the substitution of Federal for other funds in connection with work
that would otherwise be performed. ..." Thus, if a grantee has its own
funds available for matching an EPA grant, funds under the Emergency
Employment Act may not be substituted for them. However, if the grantee
has no funds for matching, or if its funds are so limited as to be practically
unavailable for matching in light of other priority needs, then the EPA
project could not "otherwise be performed,lf and it would appear that grant
funds would be available for matching under the Act.
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The Appalachian Regional Development Act of 1965, as amended (40 U.S.C.
App. 101 etseq.,), administered by the Secretary of Health, Education, and
Welfare, is designed to aid economic and other development of the depressed
Appalachian region. 40 U.S.C. App. 202(c) authorizes the use of funds
granted for demonstration health projects under the Act for matching pur-
poses ". . .to increase Federal grants for operating components of a demon-
stration health project. ..." Further, 40 U.S.C. App. 214 authorizes
grants to supplement other Federal grant programs for the ". . .acquisition
of landorthe construction or equipmentof facilities. . . ", in order to enable
grantees in the region to take maximum advantage of such grant programs
for
". . . which they are eligible but for which, because of their eco-
nomic situation, they cannot supply the required matching share,
or for which there are insufficient funds available under the Federal
grant-in-aid act authorizing such programs to meet pressing needs
of the region. ..."
In addition, and as previously discussed in our memorandum of August 2,
1972, explicit authority for use of HUD "Model Cities" grant funds for match-
ing purposes is contained in the legislation establishing that program.
Please note that we have not conducted an exhaustive review of all Federal
grant programs with respect to this issue. This office or Regional Counsel
should be consulted with regard to other programs under which questions of
matching authority arise. Consultation with Regional Counsel is also appro-
priate in regard to the various conditions attending the programs discussed,
as such conditions are not detailed herein.
Finally, we wish to point out that the cost sharing provision contained in
EPA-GR 30. 207, which generally requires the grantee to contribute no
less than 5% of project costs, is an administrative requirement which may
be waived by EPA pursuant to the deviation provisions of EPA-GR 30.1001.
This requirement is automatically met in the case of EPA grant programs
which have a statutory matching requirement of more than 5%.
§§§§§§§
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CONTRACTS
TITLE: Authority to Contract for Paid Advertising
DATE: May 11, 1971
In your memorandum of April 12, 1971, you requested advice concerning
the delegation of the authority contained in 44 U.S.C. §3702 (former 44
U.S. C. §324) to contract for paid advertising, pursuant to 5 U. S.C. §302(b).
REG OMMENDATION;
This office concurs in the recommendation that the Administrator make
specific written delegations of authority directly to those personnel who
are operationally required to contract for paid advertising.
DISCUSSION:
FPR §l-2.203-3(b) requires that:
* * *Paid advertisments in newspapers and trade journals shall be
contracted for in accordance with agency procedures pursuant to
5 U.S.C. 22a [now 5 U.S.C. 302]; 44 U.S.C. 321, 322, and 324
[now 44 U.S.C. 3701, 3702, and 3703]; and Title 7, Chapter 5200,
General Accounting Policy and Procedures Manual for Guidance of
Federal Agencies.
The GAO provision referred to, which is currently found in Title 7, Chapter
5, Section 25.2 of the General Accounting Office Policy and Procedures
Manual for Guidance of Federal Agencies, states:
* * *Delegated authority to authorize advertising may not be redele-
gated unless otherwise authorized by law. The delegation of au-
thority, as well as all invoices and bills, should be made available
to the General Accounting Office for audit purposes [Emphasis added. ]
This prohibition against redelegation is reflected in the procurement re-
gulations of the Department of Transportation; see 41 CFR 12-2. 203-3(b).
Accordingly, it is the opinion of this office that a direct and explicit delega-
tion of authority in writing to each person who is operationally charged with
responsibility to contract for advertising is required. Any such delegation
should be made pursuant to the two minimum requirements: (1) the authoriza-
tion must be in writing, as required by the statute (44 U.S.C. 3702); and
(2) there must be no redelegation, pursuant to GAO policy.
It should be noted that it may become necessary to change or make add-
itional such authorizations in the future. While promulgation of the pro-
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posed draft EPA Order or an amendment to EPA Order 111 0.16 would clearly
satisfy the statutory and GAO requirements, we suggest that these authoriza-
tions by letter authorization to each of the persons who require such author-
ization. These letter authorizations could be perfected by an EPA Order at a
later date.
§§§§§§§
TITLE: Proposed Contracts for Obtaining an Advertising Campaign
DATE: June 30, 1972
FACTS;
Your letter dated June 26, 1972, request our opinion concerning the au-
thority for executing proposed contract 68-01-0550 and another similar con-
tract. Under the contract (which is a basic ordering agreement) individual
tasks orders would be issued for the performance of various phases of the
creation of an advertising campaign, which would culminate in the delivery
to EPA of several "spot commercials for placement by EPA on televisions
(hopefully on a no-cost basis), and perhaps of other types of advertisements
for insertion by EPA in other media.
QUESTION;
What legal restrictions pertain to such a contract?
ANSWER;
The obtaining of such services by contract is not per se illegal. However,
there are statutes which restrict to a degree the purpose and therefore the
content of Agency advertisments.
DISCUSSION;
Section 102 of the National Environmental Policy Act, read in conjunction
with the various statutes administered by EPA, allows the dissemination
of information concerning pollution and the need for its abatement and con-
trol. There are limitations upon the freedom of any agency to advertise
its mission and its accomplishments, however.
18U.S.C 1913 makes it a crime, punishable by $500 fine or one year's
imprisonment, or both, and removal from office, for an agency employee to
use appropriated funds
directly or indirectly to pay for any personal service, advertis-
ment, ... or other device, intended or designed to influence in
any manner a Member of Congress, to favor or oppose, by vote,
or otherwise, any legislation or appropriation by Congress, whether
before or after the introduction of any bill or resolution proposing
such legislation or appropriation [Emphasis added. ]
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This statute has not been very productive of interpretation, and its precise
meaning is accordingly not as clear as would be desirable. It appears from
a common-sense reading of it, however, that an advertising campaign is
barred by 18 U.S. C. 1913 from advocating greater Congressional emphasis
on pollution control, and from advocating such things as letter-writing cam-
paigns to Federal legislators. Naturally, it would be grossly improper to
refer to the need for passing particular environmental legislation.
The other statute which appears to have direct application is 5 U.S.C. 3107
and old (vintage 1913) law which states:
Appropriated funds may not be used to pay a publicity expert unless
specifically appropriated for that purpose.
While this statute seems sweeping, there is a considerable history of exper-
ience by Federal agencies operating under the statute and a number of Con-
gressional remarks concerning the statute (and similar restrictions applying
to one specific agency or another) which lead this office to Conclude that a
strict reading of the statute is unjustified. See generally Rosapepa, "Neither
Pinkertons nor Publicity Men," an article appearing in the October, 1971,
Public Relations Journal at page 12, suggesting that the statute is more a
reflection of particular Congressmen's feelings regarding the publicizing
of certain programs than a general ban on public affairs activities.
i
In 31 Comp. Gen. 311, (1952), a decision interpreting a Labor Department
appropriation which prohibited use of appropriated funds for "publicity or
propaganda purposes, " the Comptroller General stated:
[I]n the legislative history of other statutory provisions limiting,
rather than prohibiting, the expenditure of sums for publicity pur-
poses, it is indicated that the intent is to prevent publicity of a
nature tending to emphasize the importance of the agency in question.
The decision goes on to quote Senator Byrd (Congressional Record, June 19,
1951, page 6890)" on a bill he authorized:
Individual glorification of bureaucrats and political propaganda con-
stitute the press service problem which this amendment seeks to
curtail. It has been a problem for a long time. Since 1913, as
I said, there has been a statute on the books providing that no money
appropriated by Congress shall be used for the compensation of any
publicity expert unless specifically appropriated for that purpose.
Senator Byrd's bill was designed to reduce by 25% of the budget request
the amount available to pay "employees whose functions are those of pub-
licity experts and their assistants, and those engaged in related supporting
activities. ..."
In the cited Comptroller General decision, it was held that it was legal to
make expenditures for "those functions of your Division of Information which
deal with dissemination to the general public, or to particular inquirers,
of information reasonably necessary to the proper administration of the laws
the duty for the enforcement of which falls upon your Board. "
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It would appear that 5 U.S.C. 3107 is a "rule of reason," which will be
cited by the Comptroller General and by Congress if this Agency's activities
in the dissemination of information go past education and constitute either
glorification of the Agency or its individual employees, or advocacy of the
approaches taken by Agency program elements.
President Nixon's November 6, 1970, memorandum to the heads of Executive
Departments and Agencies, Subject: Public Relations Activities, which you
are already aware of, states the President's desire to "put an end to in-
appropriate promotional activities by executive branch agencies. " The memo-
randum directed OMB to make cuts in agencies' public relations budgets,
and stated:
I want to make it clear that this is not an attempt to single out those
who serve the Government well by informing the public and pre-
serving the principle of freedom of information. Rather, it is di-
rected to those who are, quite understandably, program advocates,
and who, perhaps unknowingly, affront many of our citizens with
public relations promotions, fancy publications and exhibits aimed
at a limited audience, and similar extravagances that are not in
keeping with this Administration's often stated policy of frugal
management of the public's resources.
While this memorandum is not "law" in the sense of a statute, it is a clear
indication of Presidential purpose. We do not know whether the prescribed
budget cuts were the sole remedy prescribed for the problem noted by the
President. The Office of Public Affairs has earlier informed us that EPA
was in compliance with applicable White House directives. (See Causey,
"The Federal Diary" column, Washington Post, page B9, March 13, 1972,
that OMB action in the area has been completed and that the "Nixon admin-
istration is preparing to declare victory in the President's war on 'self-
serving' publicity seeking of federal agencies. ")
A good measure of restraint is thus called for on the part of those Office
of Public Affairs employees who will be charged with selection and approval
of advertising strategies and tactics. While it is not illegal to advertise in
furtherance of the agency's mission, unpleasantness of various kinds can
result from an abuse of the agency's discretion.
In an earlier, short note on the subject, we suggested review of each task
order in light of controlling law. We feel that responsibility for such review
with respect to the statutes and Executive policy must be placed squarely on
the Project Officer.
While we concede that the guidance this memo offers is not in black-and-
white, it is the best we can offer in this little-explored field. We feel
that this memo should be passed on to the Project Officer and the contractors
with a cautionary note explaining the power of GAO to disallow contractual
payments for advertising held to violate either of the mentioned statutes.
§§§§§§§
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TITLE: Contracts for Dissemination of Information or Encouragement of
Citizen Action
DATE: January 18, 1972
QUESTION;
Is there legal objection to the award by EPA of contracts for the dissemi-
nation of information to public-service groups or to the general public, and/or
contracts for the encouragement of citizen action in areas of environmental
concern?
ANSWER:
The extent to which EPA may contract for the types of services mentioned
above is primarily a matter of policy determination within the parameters
set forth in the discussion below. In this context, we have no general legal
objection to award of such contracts.
DISCUSSION:
In determining whether contracts for the dissemination of information or for
the encouragement of citizen action may be awarded by EPA, a primary
issue is whether EPA is authorized to engage^in the kinds of activities which
the contracts are designed to accomplish. EPA has not been specifically
directed or authorized to inform the general public of pollution problems,
nor to encourage the activities of public-service groups interested in im-
proving the environment.
However, the National Environmental Policy Act of 1969 (NEPA) furnishes
the statutory direction to EPA as well as other executive agencies to furnish
information and to render financial and technical assistance to further the
Federal policies set forth in NEPA. In Section 101(a) of NEPA, Congress
declares that it is the continuing policy of the Federal Government.
. . to use all practical means and measure, including financial and
technical assistance, inamanner calculated to ... create andmain-
tain conditions under which man and nature can exist in productive
harmony.
Section 102(f) directs all Federal agencies, including EPA, to:
make available to States, counties, municipalities, institutions, and
individuals, advice and information useful in restoring, maintaining,
and enhancing the quality of the environment.
And Section 105 of NEPA states in part that:
the policies and goals set forth in this Act are supplementary to
those set forth in existing authorizations of Federal agencies.
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The Environmental Education Act, Public Law 91-516 (October 30, 1970),
20U.S.C. §§1532 et seq., authorized the Office of Education, HEW, to
award grants and contracts to organizations for purposes similar or identical
to those for which the EPA Office of Public Affairs proposes to award con-
tracts. After study of the Act and its legislative history, we conclude that
Congress has not assigned to the Office of Education the sole responsibility
for environmental education to the exclusion of other Federal executive agen-
cies. In this context, see for example, 20 U.S.C. §1533, directing the Sec-
retary of HEW to render technical assistance to other agencies, including
Federal agencies, to ". . .enable the recipient agency to carry on education
programs which are related to environmental quality and ecological balance. "
Consequently, we are of the opinion the the Environmental Education Act
complements NEPA rather than overrides it.
Having found authority available for EPA to disseminate information to the
public and to encourage citizen involvement, we are of the opinion that EPA
may contract with others to accomplish such functions. See 31 U.S.C.
§686(a), 21 Comp. Gen. 400(1941), subject to the availability of an approp-
riation and to the various laws and regulations applicable generally to public
contracts.
It is our understanding that the appropriation to be charged with the cost
of the various contracts in question is the FY 1972 appropriation "for neces-
sary expenses of the Environmental Protection Agency, Public law 92-73
(August 10, 1971), 85 Stat. 194, and in particular that portion of the "Program
Direction and Support" allotment made available by EPA to the Office of
Public Affairs. Consequently, once it has been administratively determined
that the programs in question are "necessary expenses" of EPA, there is
no legal objection to the advancement of the program by contract. In so
concluding, we have noted the following colloquy in the hearings before the
House Appropriations Committee subcommittee during which the Adminis-
trator explained the EPA budget:
Mr. ANDREWS: We need this individual participation whether it
is students in the summer or individuals in their own homes and
shops and backyards. What arrangements are being made to dis-
perse information to the average citizen regarding environmental
problems and their solutions ?
Mr. RUCKELSHAUS: Through our Public Affairs Office, we are
attempting to bring together a community action program which is
aimed at not only the dispersal of information about the environ-
ment but also methods of getting communities involved in solving
their own problems. ... to the extent that we can tell that kind of
a story around the country and convince other communities that with
the right kind of initiative and leadership they can do the same thing
[as was done at Lake Washington, Seattle, Washington], I think that
we can achieve a great deal at rather minimal cost to the Federal
Government.
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Mr. ANDREWS: Isn't that one of the better ways of meeting the
challenge ?
Mr. RUCKELSHAUS: I think it is the best way.
Hearings on Agricultural-Environmental and Consumer Protection Approp-
riations for 1972 Before a Subcommittee of the House Committee on Ap-
propriations, 92nd Cong., IstSess., Pt. 5, at 393-4 (1971).
EPA Order 1110.23, September 9, 1971, delegated to the Office of Public
Affairs and its Public Services Division the authority to conduct community
relations, public participation and environmental education programs.
It should be observed that many of the projects for which your office has
proposed support are of the type more readily financed by grant than by
contract. However, as you know, EPA possesses no statutory authority
to award grants for support of such projects. We reiterate our suggestion
that your office press for legislation authorizing such grants. We recommend
strongly that such legislation not be sought first for one pollution category
and then another, since we feel that the inevitable result will be differing
grant criteria, matching ratios, and so on, which will require the adminis-
tratively cumbersome tagging" of projects. We suggest that the Environ-
mental Eduction Act functions now lodged in the Office of Education should
be transferred to EPA; if this is not feasible, however, EPA should at least
obtain parallel authority.
The statutory restrictions on grant award found in the Environmental Educa-
tion Act are, we feel, wisely drawn. Moreover, we believe that HEW's
policy of public solicitation of request for support under that Act merits
attention. By "opening" up the program and allowing interested groups of
all persuasions to submit proposals, the HEW policy tends to mute criti-
cism from Congress, GAO or the public which might be voiced where the
supported projects limited to "in-house" ideas or to proposals from groups
who learned only by happenstance of fund availability. This would be in keep-
ing with the statutory directive that all Government contracts shall be a-
warded after completion to the extent practicable.
§§§§§§§
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TITLE: Patent Rights Clause (What Rights are Retained by Government
and its Contracted Company in the Course a Proposed EPA
Contract with the Company
DATE: June 28, 1973
ISSUE:
What rights shall be retained by the Government and Gushing Engineering,
Inc. (hereafter referred to as Gushing) respectively, in inventions made in
the course of or under a proposed EPA contract with Cushing. The purpose
of the contract is to develop, design, fabricate, test, evaluate and deliver
an electromagnetic flowmeter that will indicate volumetric flowrate of liquids
in partially filled conduits.
DISCUSSION:
Functions of Cushing and Objectives of Contract
The proposed contract is based on an unsolicited proposal submitted by
Cushing, and assigned EPA REP No. CI-73-0087. The proposal sets forth
a concept, and theory of operation, of an electromagnetic, volumetric flow-
meter having sensing electrodes placed in pairs around the inside periphery
of a conduit, and provided with appropriate electronic circuitry, all working
together so as to produce an accurate readout of volumetric flowrate even
though the conduit might be only partially full. The system proposed by
Cushing is alleged to be proprietary to Cushing.
The concept, as disclosed in the proposal, has not yet been actually reduced
to practice, and it is an objective of the contract to bring about an actual
reduction to practice. However, Cushing, and more particularly Vincent J.
Cushing, president and principal investigator, have previously designed,
constructed and sold electromagnetic flowmeters capable of measuring volu-
metric flowrate in pressurized, full pipelines. These devices are, however,
not suitable for use in partially full pipelines; it is therefore a purpose of
the contract to extend the capabilities of present electromagnetic flowmeter
technology to such partially full pipelines, and most particularly to storm
and/or combined sewers.
There has been a long felt need for a flowmeter capable of accurate, and
obstructionless measurement of volumetric flowrate in open channels and
partially full pipelines. The need is becoming greater, in view of an in-
creasing need for automated sewer flow control systems; of which a device
like Cushings could be a key element.
The estimated cost of the contract, which will be totally funded by EPA, is
$102,000. However, Gushing avers that in addition to funds previously
received under related Government R&D contracts, it has expended about
$850, 000 of private funds in connection with research and commercialization
of related metering devices.
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Invention Rights -- Request by Gushing
Gushing has formally requested that it be permitted to retain more than a
mere nonexclusive license in any invention made in the course of or under
the proposed contract, on the grounds of the presence of "exceptional cir-
cumstances" of the sort contemplated by Section l(a) of the President's
Statement of Government Patent Policy of August 23, 1971, (Tab A).
Cushing's main concern is to avoid a disposition of rights, i. e., a govern-
ment retention of all rights, which would permit government use and licen-
sing on a scale such that it could result in substantial dimunition or even
complete destruction of Cushing's present commercial position in the field
of electromagnetic flowmeters suitable for flowrate measurement in full
conduits.
The exceptional circumstances averred by Gushing include the aforemen-
tioned expenditure by it of about $850,000 in closely related fields, as com-
pared with the proposed EPA expenditure of about $102,000. Gushing also
emphasizes that it is a small company, dependent largely on its present
and contemplated commercial position in electromagnatic flowmeters for
pressurized flowrate measurement, and similar current meters, and the
allegation that unrestricted government licensing of any related contract
developed inventions might destroy its present business by unjustifiably ac-
ting to establish overwhelming competition as a result of a relatively mini-
mal government contribution to the field of electromagnetic flowmeters.
On the other hand, and as an alleged exceptional circumstance, Gushing
is willing to permit unrestricted, royalty-free use of both foreground and
background inventions in the field of obstructionless flowrate measurement
in less than full water and wastewater pipelines.
In addition, Gushing avers that it has much greater than average competence
in the field of electromagnetic flow measurement, as evidenced by a fairly
extensive patent position, and the commercial sucess of certain of its pro-
ducts .
It should also be noted that Gushing has indicated that it is so concerned
about protection of its present and future commercial positions, that it would
probably not contract with EPA if the Government takes title to foreground
inventions.
Views of EPA Personnel
Responsible EPA personnel, and others, are firmly of the opinion that there
is a great need for a volumetric flowrate meter capable of accurate mea-
surement in less than full pipelines. There is no lack of satisfactory devices
for measurement in full or pressurized pipelines.
Such personnel also feel that Gushing, and most particularly Dr. Gushing
himself, have established, by past efforts and results, a much higher than
average capability in the field of electromagnetic flowmetering, and that
such a metering technique has higher than average possibilities for producing
a meter of the type needed. They also are of the opinion, as are outside EPA
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reviewers of Gushing's proposal, that there is a considerably better than
average chance that the allegedly proprietary approach suggested by Gushing
wdl result in a meter satisfing the aforementioned needs. It should be noted
that if the concept suggested by Gushing is actually reduced to practice
under the contract, both the Government and the public would acquire certain
rights thereto.
Said EPA scientific personnel feel that leaving rights to Gushing in the field
of pressurized or full pipeline flowrate measurement is warranted, in view
of the aforementioned factors.
ALTERNATIVES;
Option A; Incorporate a standard EPA patent rights clause in the proposed
contract with Gushing.
pro: 1. Would permit the Government to obtain all rights to inventions
arising under the proposed contract, subject to only a nonexclusive
license to Gushing.
con: 1. This option would provide no recognition of Gushing's past ex-
penditure of about $850, 000, which exceeds the $102,000 of Govern-
ment funds to be furnished under the contract, nor would it recog-
nize Cushing's unique expertise.
2. Gushing not likely to contract, since it feels that if Government
takes all rights, its proprietary position in existing inventions and
know-how may be jeopardized.
Option B; Incorporate a patent rights clause in the contract with Gushing
that permits it to retain rights greater than a nonexclusive license
in all future inventions made under the contract.
pro: 1. Provides equitable recognition for Cushing's past expenditures
in fields closely related to the proposed contract, and its unique,
relevant expertise.
2. Minimizes risk to Cushing's existing patent and business posi-
tion thereby encouraging its participation in the proposed project.
3. May prove to be incentive for more quickly making foreground
inventions commercially available to public, than if Government
owns all rights.
4. Provides, substantial public and Government rights to fore-
ground invention, and for royalty-free licensing of background pat-
ents owned by Gushing for use of foreground and background in areas
of special interest to EPA.
con: 1. This option does not provide either the Government or the public
a completely unrestricted right to use inventions made under the pro-
/ posed project.
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DISCUSSION OF THE ALTERNATIVES!
The proposed project and contract relevant thereto are deemed subject to
Section l(a) of the President's Statement of Government Patent Policy of
August 23, 1971, (Tab A), and pursuant thereto the Government, normally,
should either obtain, or reserve the right to obtain, principal rights to in-
ventions made in the course of or under the proposed contract.
However, Section l(a) of the President's Statement goes on to state that
even under a 1 (a) situation, in exceptional circumstances it can be agreed
at the time of contracting to leave a contractor rights greater than a non-
exclusive license if the head of the agency, " certifies, at the time of con-
tracting, that it is in the best interest of the public to do so.
The responsible EPA scientific personnel and the Office of General Counsel
have considered the information made available by Gushing, and have con-
cluded that there are "exceptional circumstances" of the sort probably con-
templated by the President's Statement, present in the instant situation,
and that pursuance of above Option B is warranted.
Relevant, additional background information and exceptional circumstances
are listed in the attached Certificate of Public Interest (Tab B).
Patent Right Clause -- Option B
Under the recommended clause (Tab C), the contractor retains all rights,
title and interest in any invention made in the course of or under the contract.
However, the rights of the contractor are subject to a paid-up, nonexclu-
sive license in the Government, with the right to grant sublicenses, said
license and any sublicenses must however, be limited to practice of any
such invention in the combination field of (1) obstructionless volumetric
measurement of water and wastewater and (2) such measurement must be
made, in the case of pipelines, at a point where the pipe is normally less
than full. This covers those areas of primary concern of EPA.
In addition, the clause provides for royalty-free licensing of contractor's
background patents for practice thereof in conjunction with all or part of the
meter delivered and/or designed under the contract, limited, however, to
use of the meter under the same two conditions as set forth in the immedi-
ately preceding paragraph.
Insofar as those invention rights left to the Contractor are concerned, there
are certain "match-in" provisions intended to encourage timely development
and marketing of inventions subject to such rights. There are also provisions
designed to assure availability of such an invention to satisfy public health,
welfare or safety needs.
The clause also provides for consideration by the Administrator of a con-
tractor request for waiver of certain of the Government's rights back to the
contractor, after an invention has been reported. The decision regarding
such a request is solely in the hands of the Administrator or his designee.
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The enclosed Certificate and Patent Rights clause have been reviewed by the
Office of General Counsel, EPA, and found by that office to be in compliance
with all relevant laws and regulations and in compliance with the guidelines
of the President's Statement of Government Patent Policy of August 23, 1971.
RECOMMENDATION;
It is recommended that the attached Patent Rights clause (Tab C) be used in
the proposed contract with Gushing. To implement use of said clause, it
is recommended that you sign the attached Certificate of Public Interest.
DISPOSITION;
The proposed contract with Gushing will incorporate both the original of
the attached Certificate of Public Interest and a copy of the Patent Rights
clause.
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SECTION VII OPINIONS AFFECTING THE GENERAL
ADMINISTRATION OF EPA
AGENCY MANAGEMENT AND PERSONNEL
REIMBURSEMENT OF PERSONNEL TRAVEL EXPENSES
TITLE: Reimbursement of Travel Expenses from Non-Federal Sources
You recently raised a question concerning the legality of the attendance at
an international conference of an EPA employee, where travel, lodging and
subsistence were provided by the non-Federal sponsor of the conference.
In general, acceptance by a federal agency of such support from non-federal
sources constitutes an improper augmentation of its appropriation, 46 Conap.
Gen. 689 (1967). While some agencies such as HEW, have specific statutory
authority to except gifts "in cash or in kind" from any non-federal source,
EPA does not.
However, a limited exception to the stringency of the Comptroller General's
position is available to EPA. Under 5 U. S. C. §4111, Congress authorized
the President to promulgate regulations according to which federal employ-
ees might accept "payment of travel, subsistence and other expenses inci-
dent to attendance at meetings" from an organization exempt from taxation
under §501 (c)(3) of the Internal Revenue Code. (Generally speaking, such
organizations are those which may receive tax-deductible contributions).
The President's authority under 5 U.S. C. §4111 has been delegated to the
Civil Service Commission, by virtue of §401 (b) of Executive Order No.
11348 (1967). The pertinent CSC regulations are set forth in Part 410 of
Title 5, Code of Federal Regulations.
Under 5 CFR §410. 702, the head of an agency, or his designated representa-
tive, may authorize acceptance by an agency employee of payment in cash
or in kind for travel, subsistence and other expenses incident to attendance
at meetings, when such payment comes from an organization exempt under
§501(c)(3), as long as no possible conflict of interest appears.
Accordingly, the Administrator presently has the authority to authorize such
payments. I intend to propose the delegation of that authority to the Coun-
selor designated in EPA's Conflict of Interest Regulations, 40 CFR Part 3.
I recognize that 5 U.S. C. §4111 speaks only of "payment" of certain expenses
incident to attendance at a meeting, and does not refer specifically to accep-
tance of food, lodging, etc. where no money changes hands. It is my opinion,
however, that that omission is not significant, in view of the common sense
statutory interpretation implicitly adopted by CSC in 5 CFR §410. 702.
I also realize that the foregoing discussion is of no help to you in connec-
tion with a meeting sponsored by the World Health Organization: as an or-
gan of the United Nations, WHO is exempt from income taxation by virtue
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of §892 of the Internal Revenue Code, rather than §501(c)(3). Accordingly,
5 U.S.C. §4111 is inapplicable; although this result seems absurd, the status
is plain. In such cases, it seems that the best practice is to place the
employee involved on Administrative leave. Technically, then, his attend-
ance at the meeting will not lead to an impermissible augmentation of EPA's
appropriation. I am advised that this practice is traditionally used by other
federal agencies and goes unquestioned by the General Accounting Office.
I would think, however, that the convenient procedure under 5 U.S. C. §4111
and regulations thereunder would be available in many, if not most, of the
cases in which the problem arises.
§§§§§§§
TITLE: Legality of International Organizations or Foreign Countries
Paying EPA Employee's Expenses
DATE: August 10, 1972
You recently requested this office's opinion on the subject of the legality of
certain international organizations paying the travel and subsistence ex-
penses of EPA employees invited to attend or speak at conferences, etc.,
sponsored by such organizations. An earlier memorandum from the Office
of General Counsel had advised that 3 U.S. C. 4111 allows this practice
only for organizations which are tax exempt under 26 U.S.C. 501(c)(3).
QUESTION;
May an international organization legally reimburse an EPA employee who
incurs travel and/or subsistence expenses at the request of such an inter-
national organization?
ANSWER;
Yes, either directly by payment to the employee, or indirectly through re-
imbursement of EPA by the international organization of EPA payment of
normal travel-subsistence pay to the employee, resulting in no net cost to
either EPA or the employee. The statutory provisions discussed below must
be complied with.
DISCUSSION;
This office was not aware, at the time of our January 7, 1972, memo-
randum on the subject, of the existence of 5 U.S.C. 3343, which provides:
(a) For the purpose of this section--
(1) "agency" "employee", and "international organization" have the
meanings given them by section 3581 of this title; and
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(2) "detail" means the assignment or loan of an employee to an
international organization without a change of position from the agency
by which he is employed to an international organization.
(b) The head of an agency may detail, for a period of not more than
5 years, an employee of his agency to an international organization which
requests services, except that under special circumstances, where the
President determines it to be in the national interest, he may extend
the 5-year period for up to an additional 3 years.
(c) An employee detailed under subsection (b) of this section is deemed,
for the purpose of preserving his allowances, privileges, rights, sen-
iority, and other benefits, an employee of the agency from which detailed,
and he is entiled to pay, allowances, and benefits from funds available
to that agency. The authorization and payment of these allowances and
other benefits from appropriations available therefore is deemed to com-
ply with section 5536 of this title.
(d) Details may be made under subsection (b) of this section—
(1) Without reimbursement to the United States by the international
organization; or
(2) With agreement by the international organization to reimburse
the United States for all or part of the pay, travel expenses, and
allowances payable during the detail, and the reimbursement shall
be credited to the appropriation, fund, or account used for paying
the amounts reimbursed.
(e) An employee detailed under subsection (b) of this section may be
paid or reimbursed by an international organization for allowances or
expenses incurred in the performance of duties required by the detail,
without regard to section 209 of title 18.
5 U. S. C. 3581 defines "agency" as, inter alia, "an Executive agency;" states
that "employee" means 'an employee in or under an agency;" and provides
that "international organization means " a public international organization
or international organization preparatory commission in which the Govern-
ment of the United States participates. 5 U. S. C. 3584 authorizes the
President to promulgate regulations necessary to carry out 5 U.S.C. 3343.
Executive Order No. 11552, August 24, 1970, 35 Federal Register 13569.
In turn redelegates most of the Presidential power to the Civil Service Com-
mission. We have found no regulation which affects your particular question.
Note that only public international organizations, in which the United States
participates as a government, are covered by 5 U.S.C. 3343. Note also
that there must be a request by the international organization to EPA, fol-
lowed by a detail of the employee to the organization (there is no minimum
duration prescribed for a detail). If the indirect route of payment of em-
ployee expenses is to be used (that is, with the money flowing through EPA),
there must be an agreement between EPA and the organization, (in any case,
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to avoid later controversy, the mode of payment should be agreed to in ad-
vance. ) If an employee is paid directly to the requesting organization,
he should not also expect to receive reimbursement of the same outlays
from EPA. J
Finally, although 5 U. S. C. 3343 speaks of details being made by "the head
of an agency, U.S. C. 302 authorizes the agency head to redelegate "to
subordinate officials the authority vested in him ... by law to take final
action on matters pertaining to the employment, direction, and general
administration of personnel under his agency . . , . " Accordingly, we
would suggest that your Office obtain a delegation from the Administration
to detail employees to international organizations for limited periods of
time (the appropriate Assistant Administrator or Regional Administrator
should concur in the detail).
To the extent that this memorandum does not differ with our January 7, 1972
memorandum on this subject, the earlier memorandum remains in effect.
Thus, private international organizations not qualified for tax exemption un-
der 26 U.S.C. 501(c)(3) may not pay the expenses of EPA employees unless
the employee is in an unpaid (leave) status at the time he renders services
to the organization.
§§§§§§§
TITLE: Payment of EPA Employees' Travel Expenses
by the Federal Republic of Germany
DATE: September 27, 1973
QUESTION
You have asked whether the Regional Administrator of Region X may law-
fully accept transportation, food, and lodging from the Federal Republic
of Germany pursuant to an invitation from the West German Government
to visit persons and points of interest in the West German environmental
protection community.
ANSWER
Yes; although U. S. employees may not accept travel and per diem payments
from foreign governments, a foreign government may provide transporta-
tion, food, and lodging in kind to a U.S. employee traveling on official
business, for which an appropriate adjustment will be made in the travel
and per diem allowance paid by the U.S. Government. In the alternative,
the West German Government may reimburse the United States for the
U.S. employee's travel and per diem and such reimbursement will be
deposited in the Treasury as miscellaneous receipts. Acceptance of per-
sonal gifts is governed by 22 CFR, Part 3.
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DISCUSSION
Article I, Section 9, of the Constitution of the United States provides in
pertinent part:
No title of mobility shall be granted by the United States: And no person
holding any office of profit or trust under them, shall, without the consent
of the Congress, accept of any present, emolument, office, or title, of any
kind whatever, from any king, prince, or foreign State.
The Comptroller General has ruled that this constitutional provision forbids
any federal employee to accept directly any payment of travel and per
diem, from a foreign government. Foreign governments may, however,
reimburse the U.S. Government for the travel and per diem expenses of
U. S. employees traveling on official business and such reimbursement must
be paid over to the Treasury as miscellaneous receipts. (See 18 CG 460,
Nov. 17, 1938).
With respect to personal gifts from foreign governments, however, Con-
gress has consented to U.S. employees' acceptance of such gifts where the
gift is either of minimal value or refusal to accept the gift would be likely
to cause offense or embarrassment or otherwise adversely affect the foreign
relations of the United States. Regulations of the Department of State which
implement this Congressional consent are found in 22 CFR, Part 3.
We note that the State Department regulations allow U. S. employees rather
broad discretion in the acceptance of foreign gifts. For example, although
an employee may not request or otherwise encourage the tender of a gift,
employees are authorized to accept and retain "gifts of minimal value";
i.e., items which have a retail value not in excess of $50 in the United
States. With respect to "gifts of more than minimal value" the regulations
state that the employee should advise the donor that acceptance of such gifts
is contrary to U. S. policy, but that if refusal would cause embarrassment,
etc., such gifts may be accepted and turned over to the State Department's
Chief of Protocol for disposal.
Although the State Department regulations authorize agencies to impose
more stringent standards of conduct with respect to their own employees,
EPA regulations seem to incorporate those of the State Department, inas-
much as Section 101(e)(2) of EPA's regulations states:
Ah employee shall not accept a gift, present, decoration or other thing
from a foreign government unless authorized by Congress as provided
by the Constitution and Section 7342 of Title 5, United States Code.
EPA may, of course, administratively establish a more restrictive policy.
Although employees may accept certain gifts under the State Department
regulations, Congress has not authorized U. S. employees to accept travel
and per diem from foreign governments, and the Comptroller General's
ruling in 18 CG 460, above, is thus still in effect. Foreign governments,
however, frequently provide transportation, food, and lodging in kind to
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U.S. employees traveling on official government business. This practice
is unobjectionable so long as the U. S. Government makes an appropriate
reduction in travel and per diem payments to the employee, since such
provision in kind is considered a government-to-government courtesy rather
than a personal donation to the U. S. employee and apparently does not violate
any constitutional provision, statute, or regulation. (See 21 CG 1055 33
CGI83, and 43 CG 675). *
West Germany may, of course, prefer an arrangement whereby the U. S.
employee receives travel and per diem from the United States in the usual
manner, whereupon the Federal Republic would reimburse the United States
Treasury.
Either method of bearing the expense of a U. S. employee's visit to a foreign
country is permissible. The sole prohibitions are: (1) under the Comptroller
General's ruling, travel and per diem payments may not be made directly
to the employee; (2) the employee's travel and per diem payments must
be reduced if transportation, food, or lodging is provided in kind by the
foreign government; and (3) the employee is subject to the provisions of
22 CFR, Part 3.
§§§§§§§
TITLE: Visitors' Release and Hold Harmless Agreements as a Condition
to Entry of EPA Employees on Industrial Facilities
DATE: November 8, 1972
FACTS
As a condition to entry on industrial facilities, certain firms have required
EPA employees to sign agreements which purport to release the company
from tort liability. The following "Visitors Release" required by the
Owens-Corning Fiberglas Corporation is an example:
VISITORS RELEASE
In consideration of permission to enter the premises
of Owens-Corning Fiberglas Corporation and being
aware of the risk of injury from equipment, negligence
of employees or of other visitors, and from other causes
the undersigned assumes all risk, releases said corpor-
ation, and agrees to hold it harmless from liability for
any injury to him or his property while upon its premises. . .
READ CAREFULLY BEFORE SIGNING
In addition to such "Visitors Releases" employees or their supervisors have
been asked to sign entry permits which include an agreement that EPA will
Pay for any injury or damage resulting from our activities at the facility.
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QUESTIONS
1. Does signing such a "Visitors Release" effectively waive the employee's
right to obtain damages for tortious injury?
2. May EPA employees contractually obligate the Agency to pay for any
injury or damage caused by our activities ?
3. May firms condition EPA's entry upon signing such agreements?
ANSWERS
1. Generally, yes; employees waive their right to damages and the govern-
ment is prevented from exercising its right of subrogation under the Federal
Employees' Compensation Act.
2. No; federal tort liability is established and limited by the Federal Tort
Claims Act, and such agreements are also invalid as violative of the Anti-
Deficiency Act.
3. No; EPA employees possess a right of entry under both the Clean Air
Act and the Federal Water Pollution Control Act Amendments of 1972.
DISCUSSION
Although the precise effect of an advance release of liability for negligence
cannot be determined without reference to the law of the state in which the
tort occurs, we must assume that such agreements are generally valid.
By signing such agreements EPA employees may effectively waive their
right to sue for damages and the government's right of subrogation under
the Federal Employees' Compensation Act, 5 USC 8101 et seq.
The Restatement of Contracts, Ch. 1 8, § 575 states:
(1) A bargain for exemption from liability for the consequences of a will-
ful breach of duty is illegal, and a bargain for exemption from liability
for the consequences of negligence is illegal if
(a) the parties are employer and employee and the bargain relates to
negligent injury of the employee in the course of the employment, or,
(b) one of the parties is charged with a duty of public service, and the
bargain relates to negligence in the performance of any part of its duty
to the public, for which it has received or been promised compensation
• • •
With the exceptions mentioned in the Restatement of Contracts, supra, no
general public policy seems to exist against express agreements for assump-
tion of risk, and they need not be supported by consideration. 10 Prosser
on Torts § 55 and Restatement of Torts 2d, Ch. 17A, §496B. Despite this
general rule, cases arising under the Federal Tort Claims Act involving
releases signed by civilian passengers prior to boarding ill-fated govern-
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ment aircraft indicate that the courts do not favor such agreements.
(Friedman v. Lockheed Aircraft Corp., 138 F. Supp. 530 (1956)--a re-
lease is no defense against gross, willful, or wanton negligence in New
York; Rogpw y. U.S., 173 F. Supp. 547 (1959)-a release is ineffective un-
less l£efITghT~is~gratuitous; Montellier v. U. S., 315 F2d 180 (1963)--a
release does not destroy a cause of action for wrongful death in Massa-
chussetts). Such apparent judicial disfavor of advance releases is, of
course, insufficient justification for assuming the risk of signing them, and
ordinary prudence requires us to assume their validity. Although signing
a release does not affect the employee's right to benefits under FECA,
such compensation will ordinarily be much less than might be recovered
in a tort action against the negligent corporation.
Since the Federal Employees' Compensation Act, 5 USC 8131 and 8132,
provides that an employee may be required to assign his right to sue third
parties to the United States and that the employee must, within limitations,
pay over any recovery from third parties as reimbursement of FECA bene-
fits, the employee's release prejudices the government's rights as well as
his own. Employees should therefore be instructed not to sign such releases
under any circumstances.
Although an EPA employee's express assumption of the risk of injury to
himself may be valid, an agreement which purports to obligate EPA to pay
all damages caused by our activities is not. The Federal Tort Claims Act,
28 USC 2674 provides:
The United States shall be liable, respecting the provisions of this
title relating to tort claims, in the same manner and to the same
extent as a private individual under like circumstances, but shall
not be liable for interest prior to judgment or for punitive damages
Congress has granted only a limited waiver of the government's sovereign
immunity, and 28 USC 2680 lists exceptions to the general waiver stated
in 28 USC 2674, supra. Exceptions which might be relevant in cases arising
out of the actions of EPA employees include 28 USC 2680(a):
Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or
based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the dis-
cretion involved be abused;
and 28 USC 2680(b):
Any claim arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights . . .
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Since the government's tort liability is limited by statute, an administrative
undertaking to expand such liability by contract is probably invalid. In
any event, EPA should not create the occasion for judicial resolution of the
question.
An additional basis for considering such indemnification agreements invalid
is the Anti-Deficiency Act, which provides at 31 USC 665(a):
No officer or employee of the United States shall make or authorize
an expenditure from or create or authorize an obligation under any
appropriation or fund in excess of the amount available therein . . .
Since the extent of the government's obligation is uncertain, the Comp-
troller General has stated that a contractual assumption of tort liability is
not a lawful obligation of the United States, and payment may not be made
pursuant to such agreement. (7 CG 507, 15 CG 803, and 35 CG 86). In fair-
ness to companies which may rely upon the validity of such indemnity pro-
visions, employees should be instructed not to sign them.
Inasmuch as the Clean Air Act and the Federal Water Pollution Control Act
Amendments of 1972 grant EPA employees a right of entry to corporate
facilities, a company may not lawfully condition the exercise of this right
upon the signing of a release or indemnity agreement. The Clean Air Act
provides, at 42 USC 1857c--9(a)(2):
. . . the Administrator or his authorized representative, upon pre-
sentation of his credentials—-(A) shall have a right of entry to,
upon, or through any premises in which an emission source is lo-
cated or in which any records required to be maintained under para-
graph (1) of this section are located. . .
The procedure for enforcement of this right is provided in 42 USC 1857c—8:
(a)(3) Whenever, on the basis of any information available to him,
the Administrator finds that any person is in violation of ... any
requirement of section 1857c--9 of this title, he may issue an order
requiring such person to comply with such section or requirement,
or he may bring a civil action in accordance with subsection (b) of
this section, (b) The Administrator may commence a civil action
for appropriate relief, including a permanent or temporary injunc-
tion, whenever any person--(4) fails or refuses to comply with any
requirement of section 1857c--9 of this title.
When a firm refuses entry to an EPA employee performing his functions
under the Clean Air Act, the employee may appropriately cite the statute
and remind the company of EPA's right to seek judicial enforcement. If the
company persists in its refusal, EPA should go to court in preference to
signing a "Visitors Release".
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In addition to procedure for judicial enforcement similar to that of the Clean
Air Act, the Federal Water Pollution Control Act Amendments of 1972 re-
inforce EPA's right of entry with criminal and civil penalties. Section
309 states:
(c)(l) Any person who willfully or negligency violates section. . .
308 of this Act (Note—Section 308 establishes the right of entry)
. . . shall be punished by a fine of not less than $2, 500 nor more
than $95, 000 per day of violation, or by imprisonment for not more
than one year, or by both. If the conviction is for a violation com-
mitted after a 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. (3) For the purposes of this subsection, the term "person1
shall mean, in addition to the definition contained in section 502(5)
of this Act, any responsible corporate officer, (d) Any person who
violates section . . . 308 of this Act. . . and any person who violates
any order issued by the Administrator under subsection (a) of this
section (Note—subsection (a) provides for administrative orders to
enforce the right of entry), shall be subject to a civil penalty not
to exceed $10, 000 per day of such violation.
In See v Seattle, 387 U. S. 541 (1967) the Supreme Court reversed the con-
viction of a corporation for refusal to admit building inspectors of the City
of Seattle. Justice White held that the Fourth and Fourteenth Amendments
required a warrant for such inspections, even where the search was rea-
sonably related to protecting the public health and safety and even where a
corporation, rather than an individual, was the subject. Under See evidence
obtained by inspectors of the Food and Drug Administration has been held
inadmissible where the inspectors obtained consent to enter by threatening
prosecution under 21 USC 331, which provides criminal penalties for re-
fusal to permit entry, U. S. v. Kramer Grocery Co., 418 F2d 987 (8th Cir.,
1969). Although two more recent Supreme Court decisions, Colonnade
Catering Corp. v. U.S., 397 U.S. 72 (1970) and U.S. v. Biswell, 92 S.
Ct. 1593 (1972), may create doubt as to whether See retains its original
vigor (see Memorandum of the Assistant to the Deputy General Counsel,
September 29, 1972), the possibility that evidence obtained under the FWPCA
Amendments of 1972 will be ruled inadmissible is a risk EPA need not as-
sume.
Since the Amendments provide for judicial enforcement of the right of entry,
EPA employees should be instructed not to mention the civil or criminal
penalties of Section 309 when faced with a refusal to permit entry. When
such refusals occur, this office should be informed immediately so that a
decision can be made as to whether to issue an order of the Administrator
under 309(a) or seek an appropriate judical remedy under 309(b).
§§§§§§§
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TITLE: EPA Utilization of Foreign Scientists
DATE: March 22, 1973
Pursuant to your recent request, this office has conducted a search of
statutes and regulations concerning employment of aliens by the U. S. Gov-
ernment. The results of our research are as follows:
QUESTION 1
May EPA appoint an alien to the competitive service?
ANSWER
Probably not; regulations of the Civil Service Commission provide that
Commission approval must be obtained for each appointment, and approval
is apparently granted only in rare cases. This prohibition does not apply,
however, to persons recruited overseas and appointed to overseas posi-
tions .
DISCUSSION
Civil Service Regulations, 5 CFR 338.101, Citizenship, state:
(a) A person may be admitted to competitive examination only if he
is a citizen of or owes permanent allegiance to the United States.
(b) A person may be given appointment only if he is a citizen of or
owes permanent allegiance to the United States. However, a non-
citizen may be given (1) a limited executive assignment under section
305. 509 of this chapter in the absence of qualified citizens or (2)
an appointment in rare cases under section 316.601 of this chapter,
unless the appointment is prohibited by statute.
Unless a statute specifically authorizes appointment of aliens in the compe-
titive service, an agency is thus forbidden to make such appointments with-
out CSC approval, which apparently will be granted only rarely. We are
not aware of any statutory provision applicable to EPA which specifically
authorizes or forbids such appointments.
Moreover the Civil Service Commission cannot authorize appointment in the
competitive service if an appropriation act applicable to EPA forbids pay-
ment of compensation to the General Provisions, Section 602 of P. L. 92-
351, of the appropriation act for the Treasury Department, etc. applies to
EPA and states (See 1972 Cong, and Adm. News 2777.)
Unless otherwise specified and during the current fiscal year, no
part of any appropriation contained in this or any other Act shall be
used to pay the compensation of any officer or employee of the
Government of the United States (including any agency the majority
of the stock of which is owned by the Government of the United States)
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whose post of duty is in continental United States unless such person
(1) is a citizen of the United States, (2) is a person in the service
of the United States on the date of enactment of this Act who, being
eligible for citizenship, had filed a declaration of intention to become
a citizen of the United States prior to such date, (3) is a person who
owes allegiance to the United States, or (4) is an alien from Poland
or the Baltic countries lawfully admitted to the United States for per-
manent residence: Provided, that for the purpose of this section,
an affidavit signed by any such person shall be considered prima
facia evidence that the requirements of this section with respect to
his status have been compiled with; Provided further, that any person
making a false affidavit shall be guilty of a felony, and, upon convic-
tion, shall be fined not more than $4, 000 or imprisonment for not
more than one year, or both: Provided further, that the above penal
clause shall be in addition to, and not in substitution for, any other
provisions of existing law: Provided further, that any payment made
to any officer or employee contrary to the provisions of this section
shall be recoverable in action by the Federal Government. This sec-
tion shall not apply to citizens of the Republic of the Phillipines pF
to nationals of those countries allied with the United States in the
current defense effort, * or to temporary employment of translators,
or to temporary employment in the field service (not to exceed sixty
days) as a result of emergencies.
We suggest that the State Department be consulted prior to the appointment
of a national of any of the above countries whose status might have changed
since 1970.
Note that although the appropriation act restrictions do not apply to persons
whose post of duty is outside the continental United States, the Civil Service
Commission regulations provide at 5 CFR 8.3:
Persons who are not citizens of the United States may be recruited
overseas and appointed to overseas positions without regard to the
Civil Service Act:
* As of April 20, 1970, Volume 9 of the State Department's Foreign Affairs
Manual, Chapter 3. 3 listed the following countries as being associated with
the United States in mutual defense activities:
Argentina
Austrailia
Belgium
Bolivia
Brazil
Chile
China (Nationalist)
Columbia
Costa Rica
Denmark
Dominion Republic
Equador
El Salvador
France
Germany (Fed. Repub.
Greece
Haiti
Honduras
Iceland
Iran
Italy
Japan
-531-
Korea (South)
Luxemburg
Mexico
Netherlands
New Zealand
Norway
Pakistan
Panama
Paraguay
Peru
Phillippines
Portugal
Spain
Thailand
Turkey
United
Kingdom
Uraguay
Venezuela
-------
The Commission's defintion of "overseas" is narrower than the encaption
in the appropriation act applicable to persons whose post of duty is outside
the continental United States. 5 CFR 210.102, Definition states:
(b) In this chapter:
(9) "overseas" means outside the continental United States, but
does not include Alaska, Guam, Hawaii, the Isthmus of Panama,
Puerto Rico, or the Virgin Islands.
Aliens are thus ineligible for appointment in the competitive service unless
(1) they are excepted from appropriation act restrictions (P. L. 92-351), and
(2) the Commission approves the appointment, or (3) they are recruited and
appointed overseas within the definition of 5 CFR~210.102(b)(9).
QUESTION 2
May EPA appoint aliens to the excepted service (temporary or intermittent
experts or consultants, etc. )?
ANSWER
Yes; provided that the appropriation act, P. L. 92-351, does not forbid EPA
to compensate the alien whose services are desired.
DISCUSSION
Civil Service Regulations do not prohibit employment of aliens in the except-
ed service, and Chapter 300, Subchapter 11, of the Federal Personnel
Manual states:
11-1. Employment in Excepted Positions
a. In general there are not citizenship requirements for positions in
the excepted service. However, an agency may, if it wishes, admin-
istratively restrict consideration to United States citizens. The em-
ployment of a noncitizen is subject to any applicable statutory re-
strictions on the expenditure of funds.
We are not aware of any EPA regulation or order forbidding employment
of aliens. (For a definition of excepted service" see 5 CFR 213.3101).
EPA may thus appoint an alien to the excepted service provided that the
alien is not subject to the restrictions of P. L. 92-351, above. The State
Department should be consulted, however, concerning the alien's being
granted a proper visa for employment in the United States (see 22 UCFR
41.12 and 22 CFR 41.24). The fact that EPA is authorized to participate
in the Exchange-Visitor Program under 22 USC 2452 should facilitate this
process in some cases (see letter of Paul A. Cook, Director, Facilita-
tive Services Staff, Bureau of Education and Cultural Affairs, Depart-
ment of State, to Fitzhugh Green, Associate Administrator for International
Activities, December 17, 1971).
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Despite appropriation act restrictions on the appointment of certain foreign
nationals, the Public Health Service Act, 42 USC 241, may authorize EPA
to appoint such persons to the excepted service in certain circumstances
even though they are not citizens of nations associated with the United States
in current defense activities. The Act provides:
The Surgeon General shall conduct in the service, and encourage,
cooperate with, and render assistance to other appropriate public
authorities, scientific institutions, and scientists in the conduct of,
and promote the coordination of, research, investigation, experi-
ments, demonstrations, and studies relating to the causes, diag-
nosis, treatment, control, and prevention of physical and mental
diseases and impairments of man, including water purification,
sewage treatment, and pollution of lakes and streams. In carrying
out the foregoing, the Surgeon General is authorized to--. . . (c)
Establish and maintain research fellowships in the service with
such stipends and allowances, including traveling and subsistence
expenses, as he may deem necessary to procure the assistance of'
the most brillant and promising research fellows from the United"
States and abroad'; . . . —
(e) Secure from time to time and for such periods as he deems ad-
visable, the assistance and advice of experts, "scholars, and can-
sultants from the United States or abroad; ~
To the extent that the above activities were administered through the
Environmental Health Service of the Department of Health, Education,
and Welfare prior to the creation of EPA, such activities and their con-
comitant legal authority were transferred to EPA by Reorganization Plan
No. 3 of 1970, 35F.R. 15623 (1970). (Note: While EPA may possess this
authority, we believe that sufficient question exists to warrant seeking ap-
proval of GAO before such employment is undertaken).
QUESTION 3
May persons ineligible to receive compensation because of appropriation
act restrictions nontheless receive travel and per diem?
ANSWER
Yes, persons requested to travel for the government may be reimbursed
for the expenses of such travel under 5 USC 5703(c).
DISCUSSION
5USC-5703(c) states:
A person serving without pay or at $1 a year may be allowed trans-
portation expenses under this subchapter and a per diem allowance
under this section while en route and at his place of service or
employment away from his home or regular place of business.
Unless a higher rate is named in an appropriation or other statute,
the per diem allowance may not exceed--
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(1) the rate of $25 for travel inside the continental United States,
and
(2) the rates established under Section 5702(a) of this title for travel
outside the continental United States.
In addition to the rates authorized by 5 USC 5703(c), travelers may be reim-
bursed for actual and necessary expenses, not to exceed $40 per day under
certain circumstances (see OMB circular A-7, October 6, 1971, and
Chapter 11, EPA Travel Manual, TR 2570. 1, July 8, 1971).
Such reimbursement of travel and per diem expenses does not appear to be
"compensation, " as the word is used in the appropriation act, inasmuch as
decisions of the OMB indicate that the person receiving such reimburse-
ment need not be an appointed government employee, but need only be called
by proper authority to travel on government business. (See 10 CG 302, 19
CG 284, 27 CG 183, and 31OG 272).
QUESTION 4
May aliens be employed by EPA contractors and grantees ?
ANSWER
Yes; the statutory and administrative restrictions apply only to persons
appointed by EPA, and do not restrict employment of aliens by contractors
providing supplies or non-personal services and by grantees (see 19 CG
284 and 28 CG 298). (Note; Unless the alien has received the proper visa,
it is, of course, unlawful for him to obtain employment in the United States).
§§§§§§§
TITLE: Voluntary Services for EPA
DATE: August 30, 1973
FACTS
Your July 7 memorandum to the Deputy General Counsel was referred to
this office for reply. You state that questions have arisen concerning the
authority of EPA to accept voluntary services in situations such as the fol-
lowing:
1. Students, high school or college, assisting in monitoring, laboratory and
other EPA work.
2. Concerned citizens assisting as needed, e.g., citizen comittees collect-
ing samples and members of the League of Women voters performing typing
and office work, etc.
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3. Interested fly fishermen assisting in sample collection.
4. A retired chemist assisting in chemical analysis.
5. Retired government employees assisting in laboratory duties, including
maintenance of equipment and delicate analytical instruments.
31 USC 665(b) states:
No officer or employee of the United States shall accept voluntary services
for the United States or employ personal services in excess of that author-
ized by law, except in cases of emergency involving the safety of human
life or the protection of property.
This subsection is part of the Anti-Deficiency Act, the major portion of
which is directed against the incurrence of obligations in advance of appro-
priations by Congress and apportionment by OMB. Nonetheless, the penalty
provisions of the Anti-Deficiency Act are equally applicable to the prohi-
bition against acceptance of voluntary services. 31 USC 665(i) provides:
(1) In addition to any penalty or liability under other law, any officer
or employee of the United States who shall violate subsections (a),
(b), or (h) of this section shall be subjected to appropriate adminis-
trative discipline, including, when circumstances warrant, suspen-
sion from duty without pay or removal from office; and any office
or employee of the United States who shall knowingly and willfully
violate subsection (a), (b), or (h) of this section shall, upon convic-
tion, be fined not more than $5000 or imprisoned for not more than
two years, or both.
QUESTION
In the absence of scientific statutory authority for acceptance of voluntary
services, may individuals such as those listed be allowed to perform ser-
vices for EPA without appointment or compensation?
ANSWER
Yes, provided that such individuals agree in advance to service without com-
pensation. Because some question exists as to the Civil Service Commis-
sion's policy, however, such services should probably be accepted only
under circumstances where the environmental acts authorize EPA to co-
operate with institutions, organizations, and individuals.
DISCUSSION
The phrase "to accept voluntary service" is susceptible of two meanings.
In the popular sense a voluntary service is one performed without legal or
other compulsion and without expectation of payment. In the contractual
sense, however, the phrase "voluntary service" is a term of art denoting a
service performed without a prior agreement, with expectation of payment
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by persons who are often judicially castigated as "officious intermeddlers"
or mere volunteers" whom "equity will not aid. " Such volunteers are en-
titled to payment, unless the services were rendered in an emergency or
under circumstances where the beneficiary's acceptance implies a promise
to pay. (See Restatement of Contracts § 72 and Restatement of Restitution
§ 112 and 115)7 If a beneficiary knowingly accepts such services a promise
to pay is implied.
The legislative history of 31 USC 665(b) and subsequent interpretations by
the Attorney General and the Comptroller General indicate that Congress
intended the term "voluntary service" to be interpreted in its quasi-con-
tractual rather than its popular sense. The statute is thus an anti-claims
device forbidding government employees to accept services without a prior
arrangement for compensation or lack thereof, so as to confer upon the
donor a quasi-constractual or moral right to compensation. But the statute
is not violated when an individual or organization is allowed to perform
services gratuitously provided the donor disavows any claim for compen-
sation or other benefits in advance. A gratuitous service is not a "voluntary"
service in the quasi-contractual sense.
The prohibition against acceptance of voluntary services first appears in
the Emergency Deficiency Appropriation Act of 1884, 23 Stat. 17. The
Indian Office has exhausted its appropriation and requested Congress to
appropriate $2100 to pay the salaries of persons temporarily employed be-
tween January i and July 1, 1884. Congress appropriated the money, but
the appropriation act contained the words: "... and hereafter no Depart-
ment or officer of the United States shall accept voluntary service in excess
of that authorized by law except in cases of sudden emergency involving
the lost of human life or the destruction of property." The reference to
"sudden emergencies" was added by a conference committee after the Senate
disagreed with the original House bill which unqualifiedly forbade acceptance
of voluntary service. Mr. Randall, a manager on the part of the House,
recommended passage of the bill as amended, explaining that the prohibition
originated because of the practice of clerks demanding additional compen-
sation for overtime services, and the sponsors felt that such claims should
not be allowed in the future. Nonetheless, occasions might arise where the
life-saving stations of the United States might need to use "volunteers"
who would presumably have a just claim for compensation. (See 67 Con-
gressional Record, Vol. 15, Pt. 4, P. 3411).
The only occasion for judicial construction of the original statute was
Glavey v U.S., 35 Ct. Cl. 242 (1900), reversed on other grounds 21 S. Ct.
891, in which the issue was whether a government official possessed author-
ity to accept Glavey's waiver of a statutorily established salary for his ser-
vices as a steamboat inspector. The court held that the waiver was ineffec-
tive since Congress had required payment of salary but that, incidentally,
the prohibition of voluntary services applied only to the Indian Office.
In 1905, Congress restated the prohibition as part of the Anti-Deficiency
Act, 33 Stat. 1257, and changed the "emergency" language to its present
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form. No part of the legislative history indicates that Congress intended
the statute as a measure to prevent augmentation of appropriations by ac-
ceptance of gratuitous services. The committee reports and floor debate
deal exclusively with the Anti-Deficiency Act as a prohibition against ob-
ligations in excess of appropriations. The fact that the "voluntary services"
language was included in the Anti-Deficiency Act lends support, however,
to the view that Congress included the language solely as a device to control
expenditures.
The Court of Claims has interpreted the statute as forbidding payment for
services rendered in the absence of or prior to an agreement for com-
pensation . (See Lee v. U.S.. 45 Ct. Cl. 57 (1910).
In 1913 the Attorney General was asked whether the prohibition against ac-
ceptance of voluntary services forbade employment of a retired Army officer
as superintendent of an Indian school without any compensation in addition
to his retired pay. The Attorney General opened that such services could
lawfully be accepted, and offered the following discussion in his opinion:
. . . [I]t seems plain that the words "voluntary service" were not in-
tended to be synonymous with "gratuitous service" and were not in-
tended to cover services rendered in an official capacity under regular
appointment to an office otherwise permitted by law to be nonsalaried.
In their ordinary and normal meaning, these words refer to services
intruded by a private person as a ' volunteer" and not rendered pur-
suant to any prior contract or obligation . . .
Taking the section as a whole, it is also perfectly evident from its
legislative history that the purpose was to prevent the Departments
from incurring financial obligations over and above those authorized in
advance by Congress. In its original form it did not contain the words
I have italicized above (concerning voluntary services), but merely
prohibited--
(1) Any present expenditures in excess of appropriations.
(2) Any contract for future payments in excess of the appropriation.
Experience convinced Congress that these provisions did not suffice
to accomplish the full result desired, because deficiencies continued
to occur and claims for extra services or for unauthorized services
continued to be presented in such a way as to put Congress under
a moral compulsion to meet them. Accordingly, Congress added
to Revised Statutes, section 3679, the words italicized above, which
involved the prohibition of "obligations" as well as "contracts" and
prohibited, in addition to the above matters (1) and (2) therefore
specified by the section, the following further matters:
(3) Acceptance of < voluntary service" (i. e., service which though not
performed under the prohibited contract or obligation, still carried
with it a quasi-contractual or moral right to compensation)...
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Thus it is evident that the evil at which Congress was aiming was ap-
pointment or employment for authorized services without compensation,
but the acceptance of unauthorized services not intended or agreed to
be gratuitous and therefore likely to afford a basis for a future claim
upon Congress. The latter class of case has been held to be within the
act. (Lee v. United States, 45 Ct. Cl. 57).
Having regard, therefore, to the particular language used and to the pur-
pose disclosed also by the legislative history, I am of the opinion that
Revised Statutes, section 3679, does not prohibit the appointment of a
person to an official position even though it to be a condition of the ap-
pointment that the service is to be without compensation.
Of course, I do not mean by anything I have said herein to intimate that
persons may be appointed without compensation to any position to which
Congress has by law attached compensation . . . (citing Glavey v. U.S.).
(30 Ops, Atty. Gen. 129 (1913)).
The Comptroller General has often disallowed payments for services ren-
dered in the absence of a prior agreement for compensation or held that
persons may perform services gratuitously if any for compensation was
waived in advance. (See 7 CG 810; 9 CG 255; 10 CG 248; 13 CG 103;
13 CG 108; 14 CG 355; 17 CG 530; 18 CG 424; 20 CG 267; 23 CG 272; 24 CG
314; and 24 CG 900 at 902. The Administrator of Veterans Affairs had used
federal employees after hours as nurses' aids at $1 per year. The Comp-
troller General opined that payment of the $1 violated the rule against dual
compensation, 5 USC 58, but that use of such persons as nurses' aides
without any compensation did not violate 31 USC 665(b). The Comptroller
General stated:
There has been considerable misunderstanding regarding the proper ap-
plication of that statutory provision (31 USC 665(b)--the practice having
been adopted, it seems, of authorizing the payment of salary at the rate
of $1 per annum in order to prevent a violation of said statute. Such
a practice is unnecessary unless some other statute or appropriation
act requires the payment of $1 per annum. In that connection see the
decision of June 26, 1928, 7 Comp. Gen. 810, 811, wherein it was
stated: "The voluntary service referred to in said statute is not nec-
essarily synonymous with gratuitous service, but, contemplates service
furnished on the initiative of the party rendering the same without re-
quest from, or agreement with, the United States therefore. Services
furnished pursuant to a formal contract are not voluntary within the
meaning of said section. "
Several recent Comptroller General decisions, however, contain language
to the effect that 31 USC 665(b) was intended to forbid augmentation of
appropriations, thus preventing federal agencies from using gratuitous ser-
vices to engage in activities beyond those made possible by Congressional
appropriations. (See 42 CG 651 (1963) and B-173933, Sept. 10, 1971). In
42 CG 651 the Smithsonian Institution, which lacked an office of general
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counsel at the time, requested the opinion of the Comptroller General as
to whether the Friends of the National Zoo, a private entity, could install
coin-operated recorded lecture machines on Zoo property. Proceeds from
the machines would be used to train elementary school teachers to conduct
guided tours of the Zoo for school children and to publish a guide book to
be sold at nominal cost. The Comptroller General advised the Smithson-
ian that such an arrangement was legally objectionable in that permission
to use the Zoo created a valuable privilege and was a lease of government
property. Under 40 USC 303(b), money alone may be accepted as consider-
ation for such leases. If money were given in exchange for use of the Zoo,
such receipts must be deposited in the Treasury under 31 USC 484. Addi-
tionally, if furnishing services was not regarded as consideration, such
"voluntary services" would be forbidden by 31 USC 665(b). The Comptroller
General stated at p. 652:
The Congress has jealously guarded its prerogative. . . and had from
time to time by general statutes sought to guard against any possibility
of encroachment by the executive department. To insure that the execu-
tive shall remain wholly dependent upon appropriations it is required
(with limited and very specific exceptions) that the gross amount of all
moneys received from whatever source for the United States be deposited
into the Treasury (R. S. 3617; 31 U.S. C. 484); and that no officer or
employee of the United States shall involve the Government in any con-
tract or other obligation for the payment of money for any purpose in
advance of appropriation therefore, unless such contract or obligation
is authorized by law. (R. S. 3679, 31 U.S. C. 665(a); see also, R. S.
3732, 41 U.S.C. 11). As additional safeguards against unauthorized
executive activities, the acceptance of voluntary service for the United
States is prohibited (. R. S. 3679, 31 U.S.C. 665{b); . . .
When compared with legislative history of 31 USC 665(b) and 30 Ops. Atty.
Gen. 129, the Comptroller General's opinion seems clearly erroneous.
Since it does not concern audits or the settlement of accounts under the
authority granted the General Accounting Office by 31 USC 71 et seq., it
should be considered opinion rather than law and may properly be disre-
garded.
As the Comptroller General has stated, great confusion has surrounded the
prohibition against acceptance of voluntary services. Partly as a result
of such confusion a number of agencies have requested and obtained specific
statutory authority to accept voluntary and uncompensated service, (e.g.,
Peace Corps, 22 USC 2509; Vista, 42 USC 2992; OEO, 42 USC 2747; Job
Corps, 42 USC 2727; Public Health Service, 42 USC 217b; HUD, 12 USC
1701; Forest Service, P. L. 92-300; National Science Foundation, 42 USC
1870(h); and National Park Service, P. L. 91-357).
The legislative history of the two most recent statutes, concerning the
Forest Service and the National Park Service, is instructive. Congress
recognized that these agencies had customarily accepted gratuitous ser-
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vices, but enacted the statutes in order to recognize the programs
officially, to grant certain employee benefits to the "volunteers" and to
allow expenditures for administration of the program and for uniforms for
the participants. For example. Senate Report No. 91-1013 recommending
passage of the Volunteers in the Parks Act of 1969, states:
Presently, the National Park Service utilizes the voluntary services of
interested persons only under severely restricted circumstances. At
relatively few locations, where certain orgainizations have a keen in-
terest in the unit, cooperative arrangements permit public-spirited
citizens to serve on a nonappointed basis. To do so, however, they are
required to agree, in writing, that they are not employees of the United
States and that the United States is not liable for any injuries which they
might sustain as a consequence of their voluntary activities. In addition,
to the extent required, any expense connected with their service (e.g.,
uniforms, period costumes, transportation, etc.) is their own or must
be paid for from donated funds. Taken together, these restrictions limit
the voluntary participation of many people who have the time and the
desire to help. (1970 C.A.N. 3580).
Likewise, House Report No. 92-982 recommending passage of the Volun-
teers in the National Forests Act of 1972, states:
In the past, the Forest Service has accepted the volunteer services of
private citizens of a nonappointed basis. These volunteers were not
covered under the Federal Employees' Compensation Act nor the Federal
Tort Claims Act. This legislation would extend such coverage plus
authorization of such things as meals, transportation, uniforms, awards,
and medical examinations as appropriate. (1972 C.A.N. 1659).
The effect of the numerous statutes authorizing acceptance of voluntary
services seems to be: (1) elimination of confusion as to executive author-
ity; (2) authorization of expenditures for administration of a formal pro-
gram and to provide meals, uniforms, and lodging for volunteers; and (3)
authorization to accept the services of "dollar a year men" in executive
positions to which a salary is affixed by statute.
Although neither the Civil Service regulations nor the Federal Personnel
Manual mention the 31 USC 665 prohibition of voluntary services, the Civil
Service Commission apparently believes that acceptance of gratuitous ser-
vices without statutory authority therefore violates the law. (See FPM
Itr. #300-8, December 12, 1967, CSC Bulletin No. 300-28 of Dec. 23, 1970,
and CSC Bulletin No. 300-30 of April 8, 1971). The sole basis for the Com-
mission's opinion is apparently the Comptroller General's decision with
respect to the Friends of the National Zoo, cited above, inasmuch as the
Commission seems to agree with our interpretation of the statutory pro-
hibition. (See letter of General Counsel of CSC to Representative Gude,
June 8, 1971, and letter of CSC to The White House, April 9, 1969).
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Erroneous or not, the views of the Commission carry considerable weight
as they may conceivably be considered as policies which the Civil Service
Commission is empowered to enforce pursuant to 5 USC 3301 and 3302 and
5 CFR, Part 5.
Compliance with the apparent policy of the Civil Service Commission pre-
sents no great difficulty in the present instance, however, since EPA pos-
sesses specific statutory authority to cooperate with public and private
agencies, institutions, organizations, and individuals in the areas of re-
search, demonstrations, experiments, surveys, investigations, and studies
related to the control of pollution. For example, Section 104 of the Federal
Water Pollution Control Act Amendments of 1972, P.L. 92-500, provides:
(a) The Administrator shall establish national programs for the pre-
vention, reduction, and elimination of pollution and as part of such pro-
grams shall —
(1) in cooperation with other Federal, State, and local agencies,
conduct and promote the coordination and acceleration of, research,
investigations, experiments, training, demonstrations, surveys, and
studies relating to the causes, effects, extent, prevention, reduc-
tion, and elimination of pollution;
(2) encourage, cooperate with, and render technical services to pol-
lution control agencies and other appropriate publich or private
agencies, institutions, organizations, and individuals, including the
general public, in the conduct of activities referred to in paragraph
(1) of this subsection;....
The Clean Air Act, 442 USC 1857 et seq., and the Solid Waste Disposal
Act, 42 USC 3251 et seq., contain similar provisions.
With the almost certain exception of "members of the League of Women
Voters performing typing and office work, etc." and the possible exception
of "retired government employees assisting in laboratory duties, including
maintenance of equipment and delicate analytical instruments" EPA is thus
authorized to cooperate with persons who are willing to perform the gratui-
tous services about which you inquired. .
As stated in the legislative histories of the recent Forest Service and
National Park Service statutes, agencies have customarily required "volun-
teers" to waive any claim for employee benefits, salary, and travel and per
diem, as well as rights under the Federal Tort Claims Act. While waiver
of employee compensation and benefits is necessary to avoid contractual
claims against the government, any requirement for waiver of travel and
per diem, and of rights under the Federal Tort Claims Act appears to be a
matter for administrative determination. Since the services of cooperating
organizations and individuals may be considered useful to the government,
however, no policy reason seems to exist which would require waiver of a
cause of action for injuries caused by the tortious acts of government em-
ployees.
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With regard to travel and per diem, payment to cooperating individuals is
specifically authorized by statute* 5 USC 5703(c) provides:
An individual serving without pay or at $1 a year may be allowed trans-
portation expenses under this subchapter and a per diem allowance under
this section while in route and at his place of service or employment
away from his home or regular place of business...
Such "individuals serving without pay" need not be government employees,
as it is well-settled that anyone incurring travel expenses at the request
of a federal agency and in futherance of the agency's statutory functions is
entitled to travel and per diem. (See 27 CG 183).
In summary:
Private individuals and organizations, such as those you mentioned in your
memorandum, may lawfully cooperate with EPA and such cooperation may
include the provision of gratuitous services. Such persons must, however,
waive any claim for compensation or other employee benefits in advance.
They need not waive rights under the Federal Tort Claims Acts, however,
and they are entitled to travel and per diem, in the discretion of EPA offi-
cials, whenever they are requested to travel for EPA's benefit. A suggested
agreement for cooperation is attached.
AGREEMENT FOR COOPERATION WITH THE
U. S. ENVIRONMENTAL PROTECTION AGENCY
I agree to cooperate with the U. S. Environmental Protection Agency
in activities useful in restoring, maintaining, and enhancing the quality
of the environment. I acknowledge that I am subject to no duty, legal or
moral, to engage in such activities or to perform such services, and that
I am not to be considered a Government employee for any purpose. I
hereby waive any and all claims for compensation or other employee bene-
fits, and I specifically waive any and all rights under the Federal Em-
ployees' Compensation Act.
I recognize that Federal law, 31 USC 665(b), forbids any Government officer
to compensate me for any services rendered in the absence of an advance
agreement for compensation.
Signed
Date
§§§§§§§
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TITLE: EPA's Use of an Advertising Agency for the Purpose of Publicizing
"Dryllll+or-Q °
Polluters
DATE: April 6, 1972
FACTS
A series of 60 second television announcements has been prepared by
Rink Wells & Associates, an advertising agency in Chicago, Illinois,
under contract with EPA. EPA intends to broadcast these announcements
throughout the Greak Lakes area. The announcements offer to provide
interested citizens with a list of major water polluters and a smaller list
of companies which have already taken action to reduce water pollution,
together with the addresses and telephone numbers of the officers of these
firms. In addition, these announcements urge the public to write and tele-
phone officers of the offending companies, and suggest that the public would
like to know the names of major polluters as an aid in deciding which pro-
ducts to buy.
QUESTION
May EPA lawfully conduct such a publicity campaign?
ANSWER
No. Payment of appropriated funds to publicity experts is forbidden by
statute. In addition, the proposed announcements contain material which
attempts to use a means of enforcement beyond the authority of the en-
vironmental acts.
DISCUSSION
5 USC states: "Appropriated funds may not be used to pay a publicity
expert unless specifically appropriated for that purpose. " This provision
is a codification of language in a 1913 statute authorizing appropriations
for the Interstate Commerce Commission. 38 Stat. 212. Its exact mean-
ing is unclear. It is common knowledge that executive agencies maintain
public affairs offices, have maintained such offices for many years, and
that Congress has continued to appropriate funds for these agencies without
objection.
Although the precise intent of 5 USC 3701 is obscure, especially in view
of subsequent agency practice and tacit Congressional approval, we may
infer ttiat the statute means at least this much: (1) Hiring of public infor-
mation personnel is authorized: (2) Such personnel may not use their
office to publicize the virtues of the Agency or its individual officers,
except insofar as straight information may reflect credit; and (3) Con-
tracting for the services of outside "publicity experts to enlist public
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support for agency programs or publicize the work of the agency is forbid-
den unless specifically authorized by statute. If the proposed EPA tele-
vision announcements purported to disseminate straight information or
simply encourage citizen action respecting the environment, we would have
no legal objection provided it was administratively determined to be for
necessary programs of EPA. But one rationale of the campaign is said to
be "to use advertising in such a way that it will get viewers and listeners
to recognize the efforts of the E.P.A." If 5 USC 3701 has any meaning at
all, it must surely forbid publicity for such a purpose.
We must now decide whether funds for the payment of "publicity experts"
have been "specifically appropriated". Section 5(c) of the FWPCA au-
thorizes the dissemination of basic data on chemical, physical, and bio-
logical water quality and other information relating to water pollution and
its prevention and control. Likewise, the National Environmental Policy
Act, Section 102 directs all agencies of the Federal government to make
available to public agencies, institutions, and individuals advice and in-
formation useful in restoring, maintaining, and enhancing the quality of
the environment. The NEPA further directs that the federal statutes
shall be administered and interpreted in accordance with the policies of
NEPA to the fullest extent possible. But the 1972 appropriation act for
EPA, PL 92-73, makes no specific mention of publicity or payment of
publicity experts. It is interesting that the same appropriation act au-
thorizes certain types of publicity for the Department of Agriculture,
while the appropriation for EPA merely contains the usual language au-
thorizing expenditures for the necessary functions of the Agency. We
believe that the general language of the FWPCA, NEPA, and the appro-
priation act falls short of a specific authorization for the payment of pub-
licity experts.
Even if it were determined that such publicity is a necessary function
of the Agency and authorized by the appropriation act, our problems
would not be solved. Even lawful activities may be subject to limits. The
FWPCA provides that corporations and individuals violating water quality
standards may be fined or, in some cases, even imprisoned. But the Act
does not provide for punishment by government-induced boycott or recruit-
ment of volunteer "enforcers" to write and telephone officers of companies
alleged to be polluters. One announcement says, "We're either going to
get them to do something about water pollution or we're going to drive them
crazy." Citizens are urged to telephone the polluters at their offices and
even their homes—and at all hours. Certainly, an individual's expression
of concern to a corporation about its activities is a legitimate means of
redress. But we must realize that not all people will express their concern
in a reasonable and decent manner. It may be doubted that EPA really
wishes to establish an army of "crank" telephone callers to "Pressure the
Polluters." Such pressure may indeed be effective—but it is not the sort
of legal pressure authorized by the environmental acts.
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Another legal problem exists. It does not concern the environmental acts,
but rather the rules applicable to television stations. The "fairness" doc-
trine of the Federal Communications Commission is stated in 47 CFR 73.679:
"(a) When, during the presentation of views on a controversial issue of
public importance, an attack is made upon the honesty, character, integrity
or like personal qualities of an identified person or group, the licensee
shall, within a reasonable time and in no event later than 1 week after
the attack, transmit to the person or group attacked (the script, etc.)
and. . . offer of a reasonable opportunity to respond over the licensee's
facilities."
Thus, TV stations may be unwilling to broadcast these announcements,
as the FCC might direct them to offer "equal time" to the alleged polluters.
We regret that our opinion seems to disparage a more "activist" approach
to environmental problems. If a private group were to pursue this action,
we might heartily approve. Indeed, some of us might even be considered
admirers of "The Fox" of Des Plaines, Illinois. Perhaps reluctantly, we
believe that the government must act less flamboyantly.
§§§§§§§
CIVIL RIGHTS
TITLE: Compensation for a Witness at an Agency Hearing
DATE: August 14, 1973
FACTS
An EPA employee alleged that he had been the victim of racial discrimin-
ation in that he had been, inter alia, denied promotion. He requested a
hearing pursuant to 5 CFR 713, and several EPA employees were called
to testify.
In addition to EPA employees, Mr. Art Noble, a former Agency employee,
was requested to appear as a witness. Mr. Noble was present for three
days and has requested the sum of $30 per day as compensation.
The Region IX Management Division has stated that no authority exists for
the payment of witness fees under the above circumstances.
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QUESTION
May EPA pay a former employee for attendance as a witness at an Agency
hearing where no compulsory process exists for requiring testimony?
ANSWER
Yes; a non-government employee may be paid travel and per diem author-
ized by 5 USC 5703.
DISCUSSION
A subpoenaed EPA witness is entitled to fees and allowances allowed by
statute for witnesses in the courts of the United States. 5 USC 503.
The fees and allowances provided by statute for witnesses in federal courts
are $20 per day and 10 cents per mile, although a witness is entitled to an
additional allowance of $16 per day if the hearing is so far removed from
his residence that he is unable to commute. (28 USC 1821).
The Comptroller General has ruled, however, that 5 USC 503(b) is not the
executive statutory authority for payment of witnesses, but simply estab-
lishes that witnesses who are compelled to give testimony (subpoenaed) are
entitled to payment as a matter of right. The GAO has indicated that
where a witness is under no legal "compulsion to testify, 5 USC 5703 pro-
vides authority to agencies to pay a witness' travel expense and a per diem
allowance not to exceed $25 per day, unless the witness' actual and nec-
essary expenses exceed the $25 limitation. In such cases agencies may au-
thorize payment of a larger sum, up to a limit of $40 per day. (See 48
CG 110, August 26, 1968 and B-164455, March 24, 1969).
A non-government witness who testifies on behalf of EPA before a hearing
board or Board of Contract Appeals without having been served by a sub-
poena may thus receive travel and per diem in accordance with OMB Cir-
cular A-7, October 10, 1971 and the EPA Travel Manual.
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SECTION Vffl NATIONAL ENVIRONMENTAL
POLICY ACT (NEPA)
TITLE: Application of NEPA to Activities of EPA
DATE: February 25, 1972
PROBLEM
The CEQ Guidelines exempt "environmental protective regulatory activities
concurred in or taken by the Environmental Protection Agency1" from the
NEPA requirement of preparing environmental impact statements. On the
basis of this guideline, none of the regulatory activities taken by EPA since
its inception have been accompanied by environmental impact statements.
In Kalur v. Resor, the Federal District Court in the District of Columbia
held that permits could not be issued under the permit program without the
preparation of environmental impact statements. In so holding, the court
rejected a defense based on the CEQ Guidelines and ruled broadly that
"There is no exception (from NEPA carved out for those agencies that may
be viewed as environmental improvement agencies". After the Kalur de-
cision, a suit was filed challenging the new stationary source emission stand-
ards under the Clean Air Act, on the ground of failure to file an envir-
onmental impact statement. Reserve Mining Company has challenged our
actions in its case on the ground of failure to file an environmental impact
statement.
The Senate water bill contains a limited exemption from NEPA for the permit
program. CEQ, since the Kalur decision, has proposed a broadening of
the Senate pro vision to include all environmental regulatory activities engaged
in by any Federal agency.
In light of these developments, it is imperative that this Agency formulate
a position with respect to whether there should be legislation exempting en-
vironmental regulatory activities from NEPA.
PROPOSAL
I would suggest that EPA support two provisions. The first provision would
be for inclusion in the pending water bill, in place of the present 511 (d).
It is limited to the water area, since we understand the House Public Works
Committee will not tamper with the application of NEPA in any other area.
We would propose supporting the following language for inclusion in the
water bill:
The requirements of the National Environmental Policy Act of
1969 (83 Stat. 852) shall not apply to environmental protective
regulatory actions taken under this Act on or after January 1,
1970 by the Environmental Protection Agency or its predecessor
agencies, including but not limited to the setting or approval
of standards and effluent limitations and other requirements
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and the issuance of permits under Section 402; provided that
this Act shall not be construed to authorize the Environmental
Protection Agency to take any regulatory action designed to
protectwater quality where such action would have a deleteri-
ous effect on other aspects of the environment outweighing
the benefit to water quality.
I would further propose supporting the following language as an amendment
to NEPA, in the event that the question of amending NEPA itself arises:
The requirements of this Act shall not apply to environmental
protective regulatory actions taken on or after January 1, 1970
by the Environmental Protection Agency or its predecessor
agencies under any Federal statute presently in effector here-
after enacted; provided that the Environmental Protection
Agency shall not take any regulatory action designed to pro-
tect one aspect of the environment without balancing the effects
of such action on other aspects of the environment.
ISSUES PRESENTED
These proposals raise the following issues:
1. Is there any reason to exempt EPA's regulatory activities from NEPA?
If so, can we justify a limitation of the exemption to EPA, without extending
it to other agencies?
2, Should the permit program be exempted from NEPA? Should this ex-
emption be confined to permits for presently existing discharges or should
it extend to permits for future discharges?
3. Should other regulatory actions of EPA be exempted, including regula-
tory and standard-setting action in air, pesticides and radiation as well as
water ?
DISCUSSION
I. Reasons for exempting EPA, and only EPA.
1. The purpose of NEPA was to force agencies that had not heretofore
considered the environment to factor environmental concerns into their
decision-making. The idea was that the benefits accruing from the agencies'
primary mission — should be balanced against environmental costs. The
basic statutory authorltyfor most agencies did not authorize them to con-
sider the environmental costs of their activities. Thus, for example, the
AEC had ruled, prior to NEPA, that the Atomic Energy Act did not
authorize it to regulate thermal discharges from nuclear power plants,
and this rulinghad been upheld in the courts. New Hampshire v. A. E.G.,
406F.2d 170 (1st Cir. 1969), certiorari denied 395 U.S. 962. NEPA
was necessary to remedy this situation.
This rationale for NEPA applies to all Federal agencies other than EPA.
It does not apply to EPA, however, since EPA's mission is to protect the
environment. EPA has the statutory authority to protect the environment,
and NEPA is not needed to supplement this authority.
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2. It could be argued that EPA's procedures for protecting the environ-
^A iP^f -n6 fP ° N?PA' The ^g^ent would be that without
NEPA, EPA will only consider the effects on water when it issues and so
on, rather than considering the impact on the total environment in each
case.
It seems to me that the Reorganization Plan that created EPA negates
this argument. The very purpose for the creation of EPA was to enable
a consideration of the total impact on the environment of each regulatory
activity, and to eliminate the attitude that the regulation of air, water,
pesticides and radiation were separate, unrelated compartments.
However, to eliminate any doubts as to EPA's statutory authority to take
an integrated approach to environmental regulation, I have included a pro-
viso in each of my statutory proposals. I believe that this proviso would
be sufficient, without subjecting all our activities to the NEPA process.
II. Exemption for the Permit Program
1. The basic argument for exempting the permit program itself has about
20,000 applications. We are already having great difficulty processing
this number of applications under present procedures. Adding the NEPA
procedure would greatly overburden the process and might well cause a
complete breakdown.
2. It has been suggested that the NEPA process would only have to be
gone through for a small percentage of the discharges, on the ground that
NEPA applies only to "major Federal actions significantly affecting the
quality of the human environment". It is argued that there could be an
administrative definition of this language which would cover only a small
portion of the discharges.
I think this argument is unrealistic. Any administrative definition in this
area would be subject to review by the courts. The judicial trend in this
area has been to interpret the Act to apply to any action which has a signifi-
cant local impact, even though it may be relatively trivial from a national
point of view. For this reason, I think it probable that the vast majority
of permits could not be safely issued without impact statements, if NEPA
applies to the permit program.
3. It has also been suggested that the administrative burden could be alle-
viated by preparation of basin impact statements. However, while consid-
eration of water pollution problems on a basinwide basis is undoubtedly
important, I doubt that it could be used to obviate individual impact state-
ments for each discharge.
Even within the framework of a general basin study, individualized con-
sideration of each discharge will inevitably be necessary.
4. I should add that if the new water bill passes as presently drafted, it
will enormously increase the administrative burdens involved in the appli-
cation of NEPA. In addition to the 20,000 dischargers covered by the
permit program as presently established, the new bill would cover approx-
imately 105. 000 feed lots. In short, we would be dealing with an additional
burden of approximately 215,000 permit applications, at least a substantial
percentage of which would require environmental impact statements.
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III. Should the exemption for the Permit Program be limited to existing
discharges? ~ "~
1. The administrative burden would be greatly eased by an exemption for
the permit program applicable to existing discharges. However, a sub-
stantial burden would remain, if future discharges are within NEPA, and
undoubtedly the burden would increase through the years. The extent of
the burden would depend on a large degree onhow the cutoff point is defined.
One proposal is to apply NEPA to discharges from plants going on line in
the future and to increased discharges from existing plants. Cast in these
terms, NEPA would apply to any permit for a plant which increased pro-
duction, unless there was a corresponding improvement in treatment equip-
ment. Under this formulation, the administrative burden would be ex-
tremely substantial.
2. The rationale that has been advanced for applying NEPA to future dis-
charges is to give EPA, through the permit program, power to assess
the environmental effects of the production and plant siting decisions which
give rise to new or increased discharges. Thus, for example, it is argued
that the environmental effects of the plant location should be assessed be-
fore a permit is issued. I would oppose use of the permit program and
NEPA for this purpose, for three reasons.
First, I think EPA has its hands full in addressing itself through the permit
program to water pollution. I do not think the permit program should
undertake the additional task of assessing the other environmental effects
of production and plant siting decisions.
Second, the application for a discharge permit generally comes at a time
where the plant siting and production decisions leading to the discharge
have already been made and have entailed substantial investments. At
this point it is far too late to exercise realistic control of these decisions.
If any scheme is devised for federal control of production and plant siting
decisions in terms of their overall environmental effects, a regulatory
scheme will have to be devised to require a federal permit at a much
earlier stage than is possible under a discharge permit program.
Finally, I question whether it is desirable for a single Federal agency
to exercise comprehensive control of plant siting and production decisions,
even when this is done in the name of the environment. At the very least,
EPA ought not to take on such a task without a more explicit indication
from Congress that it wishes us to do so.
IV. Exemption for other EPA regulatory actions.
1. A substantial administrative burden would be involved if NEPA were
applied to other regulatory activities of this Agency. Here the burden
relates to time as well as quantity. As you know, under the Clean Air
Act you are required to take a number of actions within relatively stringent
periods of time. The new water bill will also impose stringent time limita-
tions for some far reaching regulatory actions. Many of these time limi-
tations simply could not be complied with consistently with NEPA. for
example, I see no way in which you could take action on 50 State imple-
mentation plans under the Clean Air Act within the four months required
by the Clean Air Act, and still go through the environmental impact pro-
cedure before completing action on each plan.
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In addition, there is also a problem of the sheer quantity of regulatory
actions that this Agency takes. The problem is most acute in the pesti-
cides area. During calendar year 1971, 350 tolerances were issued estab-
lishing parts per million of pesticides allowed as residues on certain plants.
During fiscal year 1971, there were 4,491 new applications for registration
under FIFRA, 10, 651 amendments to existing registrations, and 8, 500 re-
newals of existing registrations. Of course, I do not know how many of
these actions would be considered major Federal actions within the purview
of NEPA. However, I expect that many Federal judges would be inclined
to hold that virtually any pesticide registration would require an environ-
mental impact statement.
2. An additional reason for exempting the environmental regulatory activ-
ities of EPA is a basic conflict between the philosophy of NEPA and the
philosophy of environmental regulation. As we understand it, NEPA em-
bodies a "go slow" approach. The purpose of NEPA is to prevent major
actions which have an impact on the environment from being taken without
a clear idea of what the impact will be.
On the other hand, the "go slow" approach has not been and should not be
the philosophy of environmental regulation. In many areas EPA has adopted
regulations without a full understanding of the environmental impact, on
the theory that if we wait until we obtain that understanding, it may be
too late. Our philosophy, in effect, has been to take some action where
there is a recognized environmental problem, even though not enough is
known for a complete assessment of the impact of our action. This phil-
osophy would be extremely difficult to implement under the requirements
of NEPA.
In short, where an action produces pollution, delay for the purpose of fully
studying the environmental effects is beneficial. But when an action is
designed to regulate or abate pollution, delay for the purpose of fully study-
ing environmental effects simply allows the pollution to continue. For this
reason, NEPA should not apply to the regulation or abatement of pol-
lution.
A case in point is the adoption of thermal standards for L?ke Michigan.
When you recommended to the Lake Michigan conference that it adopt a
closed cycle cooling requirement, you recognized that very little is known
as to the effects of thermal discharges. Consequently, under EPA, it would
have been virtually impossible to balance the costs of such a requirement
against the environmental effects. However, instead of adopting the "go
slow" approach of NEPA, your approach was to go ahead despite the un-
certainty. Another case in point is Reserve Mining Company. We have
taken action there despite an admitted lack of understanding as to long-term
effects on Lake Superior, simply because we feel that further delay might
lead to damaging a priceless resource. On the other hand, Reserve --
in its letter to you of February 5, 1972, urging application of NEPA, as
well as in other presentations --has adopted the ngo slow approach, argu-
ing that it should not be forced to alter its present waste disposal practice
until there is a fuller understanding of the environmental impacts of this
practice and its alternatives.
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3. I expect that if NEPA is applied to this Agency, its primary utiliza-
tion will be by industry, in delaying and defeating our attempts to impose
environmental regulation. It seems to me that if the public can be con-
vinced of this fact, we should have no trouble in obtaining an exemption
from NEPA.
4. In view of the impact of these proposals on the Office of Federal Activ-
ities, the Office of Legislation, and the Air, Water, Pesticides and Rad-
iation Programs, I have sent copies of this memorandum to Mr. Fri,
Mr. Mosiman and Mr. Dominick for their comments.
§§§§§§§
TITLE: Application of National Environmental Policy Act to Permit
Program - Number of Impact Statements Required
DATE: February 24, 1972
j>
In connection with the various legislative proposals to exempt the permit
program from NEPA, I asked the Office of Refuse Act Programs for some
figures that would give us some idea of the number of permits that would
require environmental impact statements if NEPA is applicable to the pro-
gram. Specifically, I asked whether they had any breakdown of the number
of applications in terms of gallons per day of discharge. My thought was
that, in all likelihood, any permit discharge of more than approximately
10,000 gallons a day would probably be viewed by most judges as a "major"
Federal action requiring an impact statement under NEPA (although I recog-
nize that this cutoff point could vary up or down depending on the constituents
of the discharge and the nature of the receiving body of water).
The attached table represents a summary of the Refuse Act applications re-
ceived by Region IV. Of the applications, 80% involved daily average dis-
chargers of 10, 000 or more gallons per day. If these figures are extra-
polated to the 20,000 applications which the program as a whole has re-
ceived, and 10, 000 gallons per day is accepted as a valid cutoff point for
major Federal actions under NEPA, the indication is that the permit pro-
gram would require 16,000 environmental impact statements.
Assuming that we were able to persuade the courts to accept a higher figure --
such as 100, 000 gallons a day -- as the cutoff point, the attached figures
indicate that over 50% of the permits would still require environmental im-
pact statements — or over 10, 000 environmental impact statements nation-
wide.
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DISTRIBUTION OF REFUSE ACT APPLICATIONS RECEIVED BY REGION IV
Ol
en
U)
IN TERMS OF TOTAL DAILY F
Daily average Number of
Discharge in Applications
Gallons Per Day
One billion or more 19
Between one hundred
million and one billion 27
Between ten million and
one hundred million 81
Between one million and
ten million 196
Between one hundred
thousand and one million 402
Between ten thousand and
one hundred thousand 391
80,000 - 100,000 39
60,000 - 80,000 59
40, 000 - 60, 000 82
20,000 - 40,000 120
10,000 - 20,000 91
Between one thousand and
ten thousand 188
Less than one thousand 86
'LOW
Cumulative # Cumulative
Per Cent of Applications Per Cent
1% 19
2% 46
6% 127
14% 323
29% 725
28% 1,116
3% 764 55%
4% 823 59%
6% 905 65%
8% 1025 73%
7% 1116 80%
13% 1,304
6%
1%
3%
9%
23%
52%
80%
93%
TOTAL NUMBER OF
APPLICATIONS
1,390
N"tnber of applications having daily average discharge in excess of 50,000 gallons per day:
861 or about 62%.
-------
TITLE: Section 309 of the Clean Air Act -- Environmental Impact Review
DATE: March 11, 1971
Section 309 of the Clean Air Act !_/ mandates that we "review and comment
in writing", with the written comment to "be made public at the conclusion
of any such review", on the environmental impact of (1) proposed Federal
legislation, (2) newly authorized Federal construction projects and major
Federal agency actions for which we receive a draft 102 statement, and
(3) proposed Federal regulations.
Subsection (b) of Section 309 says that if we determine that any matter
we have reviewedis "unsatisfactory", we must "publish" that determination
and must refer the matter to CEQ. (Interestingly enough, the statute in
this regard refers to "the standpoint of public health or welfare" as well
as environmental quality).
This section was inserted by Senate staff people in order to force total
compliance with what they felt was the intent of section 102 of NEPA
and also to force us to "make public" our comments. There is no leg-
islative history, and the staff people refused to negotiate in any way on
this language.
The section probably is a direct result of (a) Mr. Train's November, 1970
statement to the affect that 102 statements would not be made public on an
interim basis* and (b) the failure of any of the construction projects in the
"pork barrel" legislation to be accompanied by 102 statements.
Our analysis of this section leads to the following recommendations which
are submitted for your approval and information.
TV "(a) The Administrator shall review and comment in writing on the
environmental impact of any matter relating to duties and responsi-
bilities 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 pro-
ject for construction to which section 102(2)(c) of Public Law 91-190
applies, and (3) proposed regulations published by any department or
agency of theFederal 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 Envi-
ronmental Quality.''
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1. Our written comments under subsection (a) will be "made public" by
this regard refers to "the standpoint of public health or welfare" as well
as environmental quality).
2. They will be made available on the day we send our comments to the
lead agency. 2/
3. In those instances where we conclude in our comment that the proposal
is "unsatisfactory", we will publish in the Register our "determination",
be made available in the Office of Public Affairs.
4. These procedures will be announced via a Notice (copy attached) in
the Federal Register.
The CEQ guidelines (Section 12(b) differ in regard to the timing of
making comments available to the public. For legislative proposals,
the comments are to be made available when furnished to Congress.
For "administrative actions", the comments need not be made avail-
able until the final text is furnished to the Council.
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NOTICE
ENVIRONMENTAL PROTECTION AGENCY
Office of the Administrator
Notice of Compliance with Section 309 of
the Clean Air Act, as amended
Notice is hereby given of the procedures to be followed by the Environ-
mental Protection Agency in complying with Section 309 of the Clean Air
Act, as amended, 42U.S.C. 1857 et seq., Public Law 91-604, 84 Stat.
1676. Section 309 calls for the review and comment by the Administrator
on the environmental impact of matters relating to his responsibilities under
the Clean Air Act and under other provisions of his authority.
Copies of environmental impact comments transmitted by the Administrator
to the originating agency will be made available in EPA's Office of Public
Affairs and will be mailed to those requesting them.
In the event that the Administrator determines that a proposal is unsatis-
factory, such determination will be published in the Federal Register and
the full written comments will be made available in EPA's Office of Public
Affairs and will be mailed to those requesting it.
Dated: William D. Ruckelshaus
March , 1971 Administrator
DRAFT
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TITLE: NEPA Aspects of the Award and Administration of EPA State and
Local Assistance Grants
DATE: August 4, 1972
Your June 29 and 30, 1972 memoranda request advice concerning NEPA
review procedures in relation to the award and administration of EPA state
and local assistance grants. This memorandum includes a narrative dis-
cussion of pre-award and post-award NEPA grant administration proce-
dures, followed by responses to the specific questions set forth in your
June 30, 1972 memorandum. Responses to issues presented during the
recent OFA San Francisco and New York conferences are reflected in the
narrative discussion.
ADMINISTRATION OF STATE AND LOCAL ASSISTANCE GRANTS
EPA regional offices are responsible for the award and administration
of assistance to state and local governments through three principal mech-
anisms—planning grants, program grants, and construction grants. \J
The award and administration of such grants are governed:
1. by the interim general grant regulations (40 CFR, Part 30), which
were promulgated on November 27, 1971 (36 F.R. 22716) and became
effective on January 1, 1972.
2. by the appropriate subpart of the interim supplemental regulations for
state and local assistance grants (40 CFR, Part 35), which were promul-
gated on June 9, 1971 (37 F.R. 11650), and became effective on July 1,
1972. The regulations supplementing the general grant regulations are
set forth in subparts A, B, and C, respectively, of these Part 35 regu-
lations.
A manual has recently been published by the Grants Administration Di-
vision which provides supplementary grant administration materials and
guidance.
EPA GRANT PROGRAMS
While all EPA grants are awarded subject to the requirements of NEPA
(see 40 CFR § 30. 401 (a), each of the three types of state and local assist-
l/ For purposes of discussion in this memorandum, EPA demonstration
~ grants to state and local governments, the regulations for which will
soon appear as Part 40 of Title 40 CFR, are considered identical
with respect to NEPA review procedures, to the construction grants
covered by the regulations in subpart C of 40 CFR, Part 35.
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ance grants requires a different analysis of appropriate NEPA review pro-
cedure. 2j
PLANNING GRANTS
Regional offices award water quality management planning grants (see 40
CFR § 35.200 et seq.) and solid waste planning grants (see 40 CFR §
35. 300 et seq). iTEPA review would usually not be required or even feas-
ible at the time of award of such grants, but should be effected as a part
of the performance and evaluation of the planning project, particularly in
conjunction with the submission to the Regional Administrator of the in-
terim or final plan (see 40 CFR §§ 35.225 and 35.330-3). It should be
noted that EPA water pollution control planning requirements for basin
planning (40 CFR § 35.150-2) are applicable even when EPA does not fund
the planning process, insofar as compliance with an effective basin and
metropolitan or regional plan is a precondition to award of a wastewater
treatment plant construction grant (40 CFR §§ 35.835-2 and 35.835-3).
PROGRAM GRANTS
Generally, NEPA review would not be required in conjunction with the
award of an EPA program grant (Subpart B of 40 CFR, Part 35). Such
grant provide assistance from year to year to state and local air pollu-
tion control agencies (40 CFR § 35.501 et seq.) and to state and interstate
water pollution control agencies (40 CFR" § 35.551 e_t seq.). However,
regional office personnel can seek to assure better state and local co-
ordination with NEPA procedures applicable to the planning and construc-
tion grant programs by reviewing the state and local procedures essential
to NEPA review which are reflected in the program plans submitted for
approval by the Regional Administrator (see 40 CFR § 35.525 for air pro-
gram and §35. 575 for water program plan requirements).
It should also be noted that grants awarded to interstate planning agencies
pursuant to §106 of the Clean Air Act, as amended, 42U.S.C. §1857c-l,
are essentially planning grants, and should be administered for purposes
of NEPA review in the same manner as the water and solid waste planning
grant programs previously discussed.
"NEPA review" refers to either the preparation of a final environ-
mental impact statement plus the passage of thirty days or the filing
of a negative declaration.
Factors which govern the decision to prepare an EIS for a particular
project are not discussed in this memorandum. Specific policy and
legal determinations are being developed in conjunction with the issu-
ance of final NEPA regulations. Interim guidance was furnished to
regional personnel in § 6.21 of the proposed regulations published on
January 20, 1972(37F.R. 881).
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CONSTRUCTION GRANTS
In the case of construction grants, including demonstration projects in-
volving construction, compliance with NEPA requirements must be obtained
in conjunction with the review of applications for such projects and must
be completed prior to the award of such grants. Inasmuch as this con-
stitutes EPA's largest state and local assistance grant program, the ensuing
discussion will center upon the construction grant program.
PRE-AWARD NEPA REVIEW
NEPA review must be initiated and completed at the earliest possible time
during the application review period, in order to comply with the statutory
requirement (42 U. S.C. 4322(2)(c)) that "Copies of such statement and
the comments and views of the appropriate Federal, State and local agen-
cies . . . shall accompany the proposal through the existing agency review
process. " Accordingly, either the negative declaration or the EIS must
accompany the grant application through the agency review process, to
the maximum feasible extent.
Construction grant applications which are received without an adequate
environmental assessment must either be returned to the applicant or
placed in suspense until an adequate environmental assessment is re-
ceived. While review of EPA grants is to be completed within ninety days
after submission of an application, provision is made (40 CFR § 30.302-1)
for the suspension of this time period when the applicant is requested to
furnish necessary supplemental information, such as the furnishing of an
environmental impact assessment or supplemental analyses of environ-
mental impact.
Generally, NEPA review must be completed prior to the award of an
EPA grant. Only in exceptional circumstances, such as where an award
must be made prior to the expiration of a state's allocation of construction
grant funds, an award may be made for fiscal purposes (cf. 40 CFR § 30.
305-2) if a special condition is incorporated into the grant agreement (pur-
suant to 40 CFR § 30.400 and with the assistance of Regional Counsel) to
assure that no project work will be performed after the award until the
Regional Administrator notifies the grantee that EPA review procedures
have been satisfactorily completed. (Suggested language for such a special
condition is furnished in the response to Question No. 7, infra.)
NEPA review must be conducted once for each "grant" or "continuation
grant". 3/ In addition, when applications for seemingly minor grants
which areTTn reality key or irreversible elements of larger schemes are
received, regional personnel must determine whether NEPA review is re-
3/ EPA assistance is given for a "project" "budget period^ through a
" "grant", a "continuation grant", or a "grant amendment , as these
terms are defined in Part 30 of 40 CFR. However, practice varies
among the various EPA regions, as well as among the state agencies
which must certify projects, with respect to the allowable scope of a
construction grant project.
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quired for the entire "project" or sewage treatment plant, and not just for
the grant for which the application has been received. 4/ With respect
to requests Jior additional EPA assistance subsequent fo~ NEPA review,
Sec. 10(a) of the CEQ Guidelines requires that "when actions being con-
sidered differ significantly from those that have already been reviewed
pursuant to Section 102(2)(C) of the Act, an environmental statement should
be provided." In any event, responsibility for the determination whether
to conduct NEPA review, and concerning the extent of such review, rests
with EPA and cannot be relegated to either the applicant or the state agency,
in effect, on the basis of a project's scope as defined in a grant appli-
cation. In short, it is the responsibility of EPA regional personnel to
determine whether the scope of any required NEPA review relating to a
sewage treatment plant, or any part thereof, should be coextensive with,
or greater than, the scope of a project for which a grant application has
been received.
In the event that pre-award NEPA review indicates that changes would be
made in the project which would increase the cost of the project or result
in any changes (as defined in 40 CFR § 30. 900) in the plans, specifica-
tions or other technical project data submitted with the application, the
applicant should submit an amendment to its application or a revised appli-
cation so that such changes will lie within the scope of the project approved
at the time of the grant award, or they must subsequently be reflected
as approved project changes through a grant amendment (40 CFR § 30. 901),
so that the costs of such project changes may be considered as allowable
project costs for which payment may be made within the dollar ceiling of
the grant.
If an applicant proceeds with construction prior to an EPA grant award,
whether or not an EPA request to defer construction until completion of
NEPA review has been made;
1. Construction costs incurred during the period of NEPA review, prior
to award, would not be allowable project costs under any grant subsequently
awarded (see the final sentence of 40 CFR § 30. 305-2), unless a deviation
is granted under 40 CFR § 30.1001.
2. In addition, work performed by a grantee under such circumstances
may have to be abandoned or changed as a precondition to subsequent EPA
grant support on the basis of findings made through the NEPA review pro-
cess.
4/ The construction of a sewage treatment plant may be "split" pursuant
to principles discussed in a December 3, 1971 memorandum from this
office and in Program Memorandum No. 72-15 dated June 2, 1972
from the Director, Division of Municipal Wastewater Programs.
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Refusal by the applicant to cooperate with NEPA review could by itself
constitute a basis for disapproval of a grant award by the Regional Ad-
ministrator, at least where EPA concludes in its review that the project
is environmentally unsound. If a grantee proceeds with construction after
SS^!10n ° an aPPlication and prior to grant award during the process
of NEPA review and no grant is ultimately awarded, based on NEPA grounds,
any failure of the applicant to comply with pre-award NEPA procedures
could be the basis for an adverse responsibility determination upon any
subsequent grant application (see 40 CFR § 30. 307). In summary, an appli-
cant who proceeds with construction of a project prior to notification that
NEPA review has been successfully completed does so at a considerable
risk.
POST-AWARD EIS'S
While NEPA review of construction grants must generally be accomplished
prior to grant award, it will sometimes be necessary to prepare an EIS
after an award of a construction grant--for example, where an injunction
halts project work on NEPA grounds, or where the Regional Administrator
concludes, upon the initiative of third parties or as a result of internal
EPA decision, that a project for which a negative pre-award declaration
was filed warrants preparation of a post-award EIS.
Where post-award NEPA review is voluntarily initiated, all or a portion
of the project work should usually be stopped pending completion of the
NEPA review. This should be done because of the risk inherent in elect-
ing to allow project work to continue concurrent with post-award NEPA
review, that is, substantial project costs may be incurred for work which
may have to be abandoned or substantially changed as a result of findings
made through the NEPA review. Where it is necessary or prudent to stop
further project work, the appropriate grant action would be the issuance
of a stop-work order to suspend project work or a bilateral agreement
to suspend project work, effected through a grant amendment, or, in some
cases, the issuance of a termination notice.
It should be noted that withholding of payment of EPA grant funds is not
authorized, except for the provision in 40 CFR §30.602-1 for retention
of up to ten percent of grant payments, which retention must be based
upon a good cause determination inasmuch as retention of grant payments
due for costs already incurred by the grantee on project work would be
punitive. Where post-award NEPA review is required, retention of grant
funds would usually not be appropriate, except in the case of violation of
a special condition precluding further project work pending completion of
NEPA review.
Project work supported by an EPA grant may be suspended pursuant to
40 CFR §30.902 and General Condition No. 4 of the General Grant Con-
ditions (Appendix A to Subchapter B of 40 CFR) and may be terminated
pursuant to 40 CFR §30.903 and Article 5 of the General Grant Con-
ditions (Appendix A to Subchapter B of 40 CFR). These provisions are
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quite explicit and contain substantial safeguards for both the grantee and
the Government--for example, the requirement of consultation with the
grantee prior to initiation of either a suspension or termination action, of
prior approval of the suspension or termination action by an EPA official
at a level above that of the personnel actually administering the grant, and
for the payment of costs incurred by the grantee prior to the suspension
or termination action.
Obviously, the clear intent of the suspension and termination provisions re-
quires that a maximum effort be made to arrive at a course of action by
bilateral agreement with the grantee. However, where agreement is not
possible, unilateral action by EPA is authorized under both the suspen-
sion and termination provisions. Careful analysis should be made to deter-
mine whether all or only a part of the project need be affected inasmuch as
both the suspension and termination procedures are applicable to all or any
part of an approved project. Action under these procedures in any instance
of project delay or stoppage is in the best interests of the grantee, since
the costs of the delay or work stoppage, which normally would not be in-
cluded in the approved project budget or grant amounts may be recognized
in the suspension or termination agreement as allowable project costs.
In any case where a project is changed as a result of post-award NEPA
review, it is essential to incorporate any changes in the previously approved
project into a grant amendment pursuant to 40 CFR § 30.901, so that the
costs of such changes will be allowable project costs (40 CFR § 30. 602, as
amended, 37 F.R. 11650). If an increase in project funds is required as a
result of NEPA review, the approval of the state should be obtained, both •
to assure that such funds are available from the state allocation for con-
struction grants and to assure payment of required state matching funds.
If NEPA review results in substantial project changes (e.g., project cost,
site, method of treatment), as originally certified by the state agency and
approved at the time of grant award, it will generally be necessary to
terminate the original grant and obtain a new state certification and a new
grant for the revised project; grant amendments may only be entered into
for changes which do not substantially alter the objective or scope of a pro-
ject (40 CFR § 30. 901). We note that in some states any project change
requires prior approval, in addition to EPA requirements"!
A partial termination of a grant, which may be issued with an explicit pro-
vision that it is without prejudice to a subsequent grant amendment or a
new grant application, may be in the best interest of the grantee and its
state, and the more prudent course of action for all parties concerned, in
cases where substantial NEPA questions are raised concerning one aspect
of a project subsequent to award, but prior to initiation of construction for
that portion of the project, since, if that portion of the project fails to sur-
vive NEPA administrative review or judicial action and a final determination
is not obtained until after the expiration of the allocation period for the project
funds, such funds may be lost to the grantee and to its state, due to the
statutory reallocation requirements.
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RESPONSES TO OFA QUESTIONS
Our comment upon the specific questions asked in your June 30, 1972,
memorandum is as follows:
QUESTION No. 1
May EPA construction grants be awarded prior to completion of NEPA
review (e.g.. to prevent expiration of a state's allocation)?
ANSWER
Grant awards may not be made until NEPA review procedures have been
completed, that is, until a negative declaration has been filed or until
thirty days after the filing of a final environmental impact statement.
In exceptional circumstances, where the Regional Administrator deter-
mines that a grant award must be made (for example, to prevent expi-
ration of a state's allocation under the construction grant program), an
award may be made upon condition that the applicant/grantee will not pro-
ceed with all or specified portions of the project unless and until it has
been satisfactorily completed. (A suggested form for such a condition
is furnished in the response to Question No. 7.) The applicant and the
state should be advised that this course of action (award prior to comple-
tion of NEPA review) may entail considerable risk, since the grant may
have to be terminated subsequently and the funds awarded under the orig-
inal grant may be subject to reallocation to other states if deobligated after
the allocation period as a result of NEPA post-award review.
QUESTION No. 2
What grounds can be used to refuse to award a grant for a project on the
State's priority list?
ANSWER
State certification of priority for a project is one precondition to EPA
consideration of an application for a construction grant award. In the
course of such consideration the Regional Administrator must determine
that the proposed project complies with a number of statutory and sub-
statutory requirements which are reflected in the general grant regula-
tions (specifically, Subpart C of 40 CFR, Part 30) and in the supplemental
state and local assistance grant regulations (40 CFR §§ 35.830 and 35.835).
Compliance with NEPA is one such condition (see 40 CFR § 30.401 (a)).
A determination by a Regional Administrator as a result of NEPA review
that a proposed project is environmentally unsound would, by itself, con-
stitute an adequate basis for disapproval of a construction grant for award.
QUESTION No. 3
When an impact statement must be prepared on an on-going project how
can work stoppages be used on all or part of the project to ensure EPA
does not continue to commit itself to an action that the EIS may show
must be changed? What financial liability may EPA incur and what are
the risks?
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ANSWER
Post-award suspension procedures are discussed in the introductory por-
tion of this memorandum. The grant suspension provisions (40 CFR § 30.
902 and General Condition No. 4 in Appendix A to Subchapter B of 40 CFR)
set forth in considerable detail the ramifications of a unilateral suspension
action by EPA. Bilateral suspension agreements should address the
parties' respective liabilities in comparable detail. It should be noted
that, in addition to EPA and the grantee municipality, the grantee's state
has an important role with respect to both distribution and use of the state
FWPCA allocation and to any state matching share of project costs. The
state agency must be consulted on all important construction grant actions.
QUESTION NO. 4
If an impact statement indicates significant changes must be made in a pro-
ject, but the grantee refuses to make the necessary changes, what re-
course does EPA have ? What liabilities may it incur under the various
actions it may take, and what are the risks ?
ANSWER
See the detailed discussion, supra, concerning post-award grant adminis-
tration aspects, including project changes, grant amendments, suspension,
termination, and allowable costs. More detailed discussion of these sub-
jects is contained in the grant regulations and in the grant manual. It
should be noted that action under the pending or current grant is not the
exclusive remedy. An applicant/grantee can be found non-responsible with
reference to future grant awards (40 CFR §30.304). Also, EPA or the
state may initiate enforcement action to stop a grantee from proceeding
with a project unilaterally. The cooperation of the state agency may be
obtained for remedies available under state laws.
QUESTION NO. 5
If the grantee does agree to make changes, what liabilities does EPA incur?
ANSWER
See the discussion, supra, concerning both pre-award and post-award pro-
ject changes, particularly the requirement for amendment or revision of
an application or for the issuance of a grant amendment to insure allow-
ability of project costs. Generally, EPA does not incur liability unless
the changes are reflected prior to award in the grant agreement or after
the award through a grant amendment. It should be noted that in some
instances, project changes could result in a decrease in project costs.
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QUESTION NO. 6
If EPA, because of issues brought to its attention by the public or other
sources, determines without an EIS that a grant it has made is environ-
mentally unsound, can it stop the project? What can it do and what li-
abilities may it incur?
ANSWER
All projects funded under EPA grants are subject to suspension or termi-
nation for any rational reason, as previously explained in this memoran-
dum. Generally, in such circumstances, EPA will be liable for payment
of its share of the project costs incurred up to the issuance of a stop-work
or termination notice, and for standby suspension costs, in accordance with
the provisions of the suspension and termination grant articles.
QUESTION NO. 7
What standard clauses should be included in grant agreements to protect
EPA in all of the above instances?
ANSWER
Published grant regulations contain suspension, termination, grant amend-
ment, and project change provisions which provide an adequate mechanism
for most post-award NEPA problems. In cases where exceptional cir-
cumstances require award of a grant prior to completion of NEPA review
a special condition must be inserted in the grant agreement, with the as-
sistance of EPA Regional Counsel, to assure compliance with NEPA prior
to performance of any further project work or incurrence of additional
obligations other than standby costs. Suggested language for such a special
condition is as follows:
"This grant is subject to completion of a review required by the
National Environmental Policy Act of 1969, 42 U.S. C. 4321 et
seq. The grantee hereby agrees to furnish information and
otKerwise cooperate with EPA regional office staff in the NEPA
evaluation and further agrees that no additional project costs or
other obligations will be incurred unless and until the Regional
Administrator notifies the grantee and the state in writing that
the NEPA review has been satisfactorily completed. The Re-
gional Administrator may annul this grant if he determines as
a result of the NEPA review that the project for which this grant
has been awarded is environmentally unsound."
In other cases where the Regional Administrator decides to prepare an EIS
after an award on the basis of a negative declaration, a similar clause should
be inserted through a grant amendment, with the assistance of Regional
Counsel, except that the sole remedy should be termination, if prior pro-
ject costs were incurred in good faith by the grantee.
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CONCLUSION
The foregoing discussion should make it abundantly clear that NEPA pro-
cedures cannot be thought of as separate or distinct requirements; they
must be interwoven with EPA grant award and administration requirements.
In fact, considerable benefit can be obtained from interrelating NEPA pro-
cedures with the various EPA grant programs. For example, emphasis
upon NEPA factors in the development and approval of basin plans should
minimize NEPA problems on ensuing construction grants; regional per-
sonnel responsible for administration of planning and construction grants
should interrelate their respective NEPA and program requirements. Sim-
ilarly, some problems encountered in the administration of the construction
grants program may be best resolved in conjunction with negotiation of the
state program grant (for example, ensuring that a state agency will not
certify a construction grant project unless an adequate environmental as-
sessment has been prepared). The end result of careful attention on the
part of each regional office to the interrelationship between NEPA and
each of the EPA grant programs should be better administration of these
grant programs, as well as an improvement in compliance with NEPA re-
quirements.
Similarly, and for the same reasons, an effort should be made to coordinate
NEPA review with the procedures required by,
(1) The Intergovernmental Cooperation Act of 1968, 42 U.S.C. 4201
et seq., as implemented by OMB Circular A-95 (Rev. February 9,
1971, as revised through transmittai memo No. 2 March 8, 1972);
(2) Section 204 of the Demonstration Cities and Metropolitan Develop-
ment Act of 1966, 42 U.S.C. 3301 et seq., as amended, as imple-
mented by OMB Circular A-98 (June 5, 1970);
(3) Title VI of The Civil Rights Act of 1964, 42 U.S.C. 2000a et
seq., as amended; and
(4) The Uniform Relocation Assistance and Land Acquisition Policies
Act of 1970, 42 U.S.C. 4621 et seq., 4651 et seq., and the EPA
regulations issued thereunder, 40 CFR, Part 4.
Materials concerning these requirements will be found in the EPA Grants
Manual. We understand that the Grants Administration Division will soon
propose amendments to the grant regulations which will provide more de-
tailed assistance to applicants and to EPA personnel concerning these in-
terrelated review requirements.
The advice of the Regional Counsel should be obtained prior to the initia-
tion of any action by regional personnel which may result in the amend-
ments, suspension, termination, or annulment of a grant. Our Grants
and Procurement Division is available to advise your office and the Grants
Administration Division concerning the legal aspects of your respective
responsibilities under NEPA in the administration of the EPA grant pro-
grams.
§§§§§§§
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TITLE: Applicability of NEPA to "Four Corners Project"
DATE: October 4, 1971
BACKGROUND
Six privately owned fossil-fuel power plants, collectively referred to as the
Four Corners Project," are currently in various stages of planning and de-
velopment. The six plants include the Four Corners Plant near Farmington,
New Mexico, which is presently operating, and the Mojave Plant, which is
completed but which is not yet transmitting power, due to start-up problems.
Three other plants (Navajo, San Juan and Huntington Canyon) are under con-
struction. The Kaiparowits Plant, the largest plant envisioned for the area,
is only in the planning phase.
All the foregoing plants are to be owned by private utilities companies, and
all have required, or will require, one or more federal administrative ac-
tions in connection with their construction and operation, or in connection with
provision for their fuel and water supplies. (For example, the coal-burning
plants will obtain coal under leases with Indian tribes, subject to the approval
of the Secretary of the Interior, or with the Department of the Interior itself.)
5
Both the Four Corners and Mojave Plants were substantially completed prior
to January 1, 1970, (the effective date of NEPA), and no federal action was
taken after that date with respect to either of them. Since the effective date of
NEPA, however, Interior and the Corps of Engineers have filed a total of five
environmental impact statements, none of which has dealt with all the environ-
mental aspects of any one of the six plants; rather, each has dealt with only
one aspect of one of the six plants (e. g., granting a right of way for a coal
slurry pipeline across federal lands).
QUESTIONS
1. Does section 102(2)(C) of NEPA require a comprehensive impact state-
ment to be filed with respect to the entire Four Corners Project (that is, all
six plants), or at least with respect to all the plants subject to federal admin-
istrative action on or after January 1, 1970?
2. Does section 309 of the Clean Air Act impose upon the Administrator an
affirmative obligation to evaluate the Four Corners Project as a whole, and to
comment on it?
CONCLUSIONS
1. Although it is extremely difficult to predict future developments under
section 102(2)(C) of NEPA, it is felt that NEPA will not require an impact
statement to be prepared with respect to all six plants.
In addition, it seems clear that NEPA will not be applied retroactively to either
the Four Corners or Mojave Plants. Accordingly, even if a federal court were
to rule that Interior must file a statement encompassing all future actions
with respect to the Four Corners Project, such a statement could accept
ex hypothesis the environmental effects of the Four Corners and Mojave Plants.
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2. No.
DISCUSSION
1. It is true that there are already judicially imposed restrictions on the
freedom of a federal agency to define an activity narrowly for purposes of
section 102(2)(C). For example, in the very recent case of Conservation
Society v. Texas. 2 ERG 1873 (5th Cir., August 5> 1971) which arose under
a similar provision of the Department of Transportation Act of 1966, the court
held that the Secretary of Transportation could not give piece-meal considera-
tion to a highway, for purposes of approving construction grants. In that case,
the Department of Transportation approved construction grants for three "seg-
ments" of a highway in San Antonio. Prior to that time, state and federal
officials had considered the highway to be a single project, planned to run
through a public park. The taking of parklands, however, gave rise to special
legal problems under the Department of Transportation Act; accordingly, the
Department of Transportation approved the two "segments" of the highway on
each side of the park. The third "segment," it was argued, was the only one
subject to the special statutory provision relating to the taking of parklands.
The Fifth Circuit rejected the Government's contention. It is clear from the
opinion that the court was influenced by the fact that the federal authorities had
for a decade viewed the three "segments" as a single project. Moreover, the
piecemeal decision-making which the Department of Transportation attempted
to justify in this case is an extreme example, and obviously evidenced a con-
temptuous view of the policy underlying the relevant statute.
It may be, therefore, that Interior will not be permitted to file piecemeal im-
pact statements, as it has in the past. (In fact, its lawyers have informally
indicated that its future impact statements will deal with all the environmental
issues raised by the construction of one power plant.) It is far from clear,
however, that Interior would be required to consider all six power plants as
one project for purposes of section 102(1)(C). First, its unwillingness to do
so seems far less cynical than the position taken by the Department of Trans-
portation in the Texas case. Second, the six power plants involve different
owners, different water and fuel sources, and serve different markets, etc.
It is difficult to say that the six plants are in reality one project, as the seg-
mented highway was.
It so happens that the Secretary of the Interior has announced a suspension
in the schedule for the development of the Kaiparowits Plant, pending a study
of the present and projected power needs in the Southwest. While that fact
may help the conservation groups (several of which have already instituted
litigation concerning the Four Corners Project) in arguing that Interior views
all six plants as a single project, it would hardly dispose of the issue.
The foregoing conclusion would be greatly weakened if it were shown that
Interior has in fact historically regarded all six power plants as one project,
particularly if the earlier plants were built only on the assumption that con-
struction of the later ones would proceed. But there are no such facts at our
disposal at this time.
Finally, it should be noted that the recent case of Calvert Cliffs Coordinating
Committee v. AEC (No. 24, 839, D. C. Cir., July 23, 1971) does not alter the
above conclusion concerning the non-retroactive applicability of NEPA. Calvert
Cliffs held that the AEC must apply NEPA to proceedings involving nuclear
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power Plants, even in cases where construction permits had been granted prior
xfJ^l Tl u6 °f theAct- The c°«rt expressly noted that decisions hold-
ing NE PA not to be retroactive had not faced situations involving two distinct
stages of federal approval. Id. at 39 n. 43 (slip opinion). Accordingly,
Calvert Cliffs would only be Helpful to a plaintiff arguing that Interior must
file an impact statement with respect to a whole plant, where only one of
several federal actions remained to be taken after January 1, 1970. But it
does not alter the above conclusion concerning the applicability of NEPA to the
Four Corners and Mojave Plants, unless the conclusion concerning the scope
of the Project is erroneous.
2. Section 309 of the Clean Air Act appears to impose duties on the
trator with respect to the Four Corners Project only to the extent that a state-
ment is required under section 102(2)(C). It is true that section 309 is not
precisely congruent with section 102(2)(C). The former calls for review and
comment by the Administrator on three enumerated classes of federal activ-
ities, if they have an environmental impact on any matter relating to his
statutory duties. Proposed legislation and regulations constitute two of the
three classes of federal activity set forth in section 309. The third is "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
[NEPA] applies. ..." Since nothing in the Four Corners Project constitutes
a federal construction project, the Administrator's responsibility under sec-
tion 309 of the Clean Air Act appears to be congruent with Interior's respon-
sibility under section 102(2)(C), as far as the Four Corners Project is con-
cerned.
v
§§§§§§§
TITLE: Four Corners -- application of NEPA to Interior's review of
air pollution control equipment
DATE: December 21, 1971
The Secretary of the Interior, under various agreements with the Indian tribes
and the power companies, has authority to review the installation of air pol-
lution control equipment at the Four Corners Generating Station. Interior
expects to review proposed plans for such equipment to be submitted by the
company, and has asked our "concurrence in waiving the preparation of an
environmental statement on this review." Interior points out that the delay
incident to preparation of an environmental statement "would allow the con-
tinued use of the less efficient equipment."
We have drafted the attached response for your signature, stating that while
our air pollution control staff is ready to review the proposals and indeed is
presently doing so, we have no legal power to wave the requirements of NEPA.
Before you sign this letter, however, you should be aware that an alternative
response is possible, although I do not recommend it. Section 5(b) of the CEQ
Guidelines under NEPA states that "environmental protective regulatory activ-
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ities concurred in or taken by the Environmental Protection Agency are not
deemed actions which require the preparation of environmental statements."
Under this language, we could take the position that Interior would not have
to comply with NEPA if EPA concurred in their approval of the proposed
equipment.
I recommend that we not adopt this approach, for two reasons. First, it
would involve considerable legal risk. At the present time, our position that
permits under the Refuse Act do not require environmental impact statements
is being challenged in two suits. In those cases, in order to buttress our
position that "environmental protective regulatory activities" do not require
Compliance with NEPA, we have argued that the permit program establishes
a fornial procedure in which the public has a chance to participate, and public
airing of environmental issues is thus guaranteed. I would not want to see the
question tested in the context proposed here, where EPA review would be en-
tirely ex parte, without any public airing of the environmental issues. This
would b~e~ especially unfortunate in view of the public controversy which sur-
rounds the Four Corners plant.
Secondly, I think that informal EPA review of other agencies' activities, as
a basis for avoiding NEPA, would be an unfortunate precedent. It seems to
me that if other agencies are going to make it a practice to obtain EPA con-
currence for their environmental regulatory activities, they should make to us
a fairly complete presentation. And if such a presentation is to be made, it
might as well be done in the form of a draft environmental impact statement.
I recognize, of course, that the response I recommend to Interior's request
may involve delay in the installation of control equipment at Four Corners.
However, I think the problems involved in the request are such that we should
not comply with it.
§§§§§§§
TITLE: Air Pollution Control Equipment -- Four Corners Generating Station
DATE: December 27, 1971
Dr. William T. Pecora
Under Secretary
U.S. Department of the Interior
Washington, D. C. 20240
Dear Dr. Pecora:
I have your letter of November 5, concerning the Department of the Interior's
review of plans for the installation of air pollution control equipment at units
4 and 5 of the Four Corners Generating Station.
Our air pollution control experts would be pleased to provide any assistance
we can in your review of proposals for pollution control equipment. Our
staff have recently received the plans referred to in your letter, and are pre-
sently analyzing whether the plans are likely to result in the reduction of
emissions proposed by the Department of the Interior.
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EPA is unable, however, to wave any possible legal requirement that the De-
partment of the Interior prepare an environmental impact statement. Each
Federal agency proposing to take a major action is responsible for determining
whether a statement is required; if one is required, EPA is not empowered
to grant an exemption.
Under the National Environmental Policy Act, a public disclosure of environ-
mental issues is an essential purpose of the environmental impact statement
procedure. Where the Act requires that procedure, EPA is not in a position
to substitute its own review of the environmental issues for the public review
which the Act contemplates. The decision of the Court of Appeals in the
Calvert Cliffs case demonstrates that where a NEPA review is required in
connection with federal agency action, the agency may not delegate its duty to
conduct such a review to a regulatory agency such as EPA.
Sincerely yours,
Donald Mosiman
Assistant Administrator
For Air and Water Programs
§§§§§§§
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ENVIRONMENTAL IMPACT STATEMENTS
TITLE: CEQ's Guidelines for Preparation of Environmental Impact Statements
DATE: November 30, 1971
FACTS
Section 5(d) of CEQ's April 23, 1971, Guidelines issued tinder section 102(2)
(C) of the National Environmental Policy Act conclude that "environmental
protective regulatory activities" taken by EPA, or taken with its approval,
are not the sort of federal actions which require impact statements.
QUESTIONS PRESENTED
1. What is an "environmental protective regulatory activity?"
2. Do the registration of economic poisons under section 4(a) of FIFRA and
the issuance of temporary permits under 7 CFR §2762.17 constitute such activ-
ities?
ANSWER
1. There is no clear-cut definition of "environmental protective regulatory
activity," as the discussion below indicates. There are, however, several
criteria to which EPA should look in deciding on an ad hoc basis which of its
activities fall within the scope of the exception contained in the Guidelines.
2. No.
DISCUSSION
1. There is nothing in NEPA, in its legislative history, or in the CEQ Guide-
lines to illuminate the question of what is an "environmental protective regu-
latory activity." The most pertinent comment from the legislative history of
NEPA appears in a document published at page S 17453 of the Congressional
Record for December 20, 1969:
"Many existing agencies such as the National Park Service, the
Federal Water Pollution Control Administration and the National
Air Pollution Control Administration already have important re-
sponsibilities in the area of environmental control. The pro-
visions of section 102 (as well as 103) are not designed to result
in any change in the manner in which they carry out their environ-
mental protection authority."
Given such a cryptic expression of intent, the phrase in question will be de-
fined in large measure by administrative practice in the coming months. I
believe there are four considerations to which we should look in deciding
whether or not an EPA activity falls within the scope of the "exemption":
a. The "exemption" is not contained in the statute, but must be inferred,
if it exists at all, only from a sparse legislative history (albeit one rein-
forced by CEQ's own reading of NEPA). The exemption should therefore
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be read narrowly, for at least two reasons. First, failure to file an im-
pact statement may result in embarrassment to the Agency. Second -- and
of more substantive concern --is the possibility of an injunction against
the implementation of an EPA decision, as a result of a law suit brought
by polluters who have borrowed a page from the book of the conserva-
tionists.
b. On the other hand, there will be situations, as noted below, in which
the requirements of NEPA would impose an intolerable administrative bur-
den on the Agency. Admittedly, that fact alone does not govern the mean-
ing of a statute, but I think it is entirely proper to take it into account, in
view of the fact that we will, for all practical purposes, be making new
law.
c. In any case in which it is tentatively decided to forego the NEPA pro-
cess on the grounds that we are about to engage in an "environmental pro-
tective regulatory activity," careful thought should be given to the ques-
tion of what our position would be if some other agency had made an anal-
agous decision with respect to its own activities. You will note that the
above-quoted excerpt from the legislative history does not specify pre-
cisely which agencies have the sort of responsibilities which the Senate
had in mind. While EPA was clearly included to the extent its activities
follow in the footsteps of those of NAPCA and FWPCA, it is not clear that
the exemption applies to all of the EPA activities included in Reorganization
Plan No. 3 of 1970. Accordingly, we should be wary of claiming an exemp-
tion for our own purposes, and then having our arguments thrown back
in ourcollective face by some other, less environmentally conscious agency.
d. We have a strong argument that we are operating under cover of the
. exemption to the extent environmental concerns are built into EPA's
decision-making process with respect to the activity in question.
2. Applying the foregoing considerations to the questions you have raised
under FIFRA, I conclude that neither the registrations of pesticides under
section 4a, nor the issuance of temporary permits for the experimental use
of such pesticides should be subject to the NEPA process. In the first place,
it is difficult to conclude that these two activities should be treated differently.
We could probably argue for different treatment, if we so desired, on the
grounds that a registration of a pesticide represents regulatory activity, while
the granting of a temporary permit merely involves waiving the regulatory
authority we have under FIFRA. But in view of the fact that both activities
have the result of permitting the regulated interests to transport pesticides
over state lines, subject to regulatory restrictions, I conclude that their treat-
ment under NEPA should be the same.
Second, and in spite of the desirability of construing the exemption narrowly,
I think that the task of filing some 12,000 environmental impact statements
every year would be an intolerable administrative burden.
Third, I am unaware of any comparable program of another federal agency
with respect to which we have claimed, or wish to claim, that 12,000 impact
statements should be prepared annually.
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Finally, the consideration inherent in the decision to register a pesticide,
and in the decision to grant a temporary permit for experimental use (as
described in the undated memorandum from William M. Hoffman to Douglas
Lobell, a copy of which you have provided us) both entailed the sort of balanc-
ing process which NEPA attempts to ensure.
§§§§§§§
TITLE: Comments on Draft Environmental Impact Statements -- Legal
Consequences of Request for Additional Information
DATE: January 18, 1972
A draft letter from EPA trasmitting comments on the draft EIS for the Oconee
Nuclear Station contains a paragraph requesting additional information. This
paragraph raises certain legal problems which I have discussed with you over
the telephone. Since the problems involved are likely to be recurring, I
thought it best to summarize my thoughts in writing.
The paragraph in the draft letter with which I am concerned reads as follows:
We appreciate the opportunity to review the information
so designated before the final impact statement is filed
with the Council on Environmental Quality. This infor-
mation and the remaining requested data, wherever possi-
ble, should be included in the final statement. We rec-
ognize, however, that some of the data may not be currently
available and will take sometime to develop. In such cases,
a definite commitment to provide the information, support-
ed by a timetable, should be made.
This paragraph raises two separate problems.
1. The first sentence in the paragraph requests an opportunity to review
additional information before the final impact statement is filed with CEQ.
As a legal matter, I do not think we should make this request. The request
assumes that the information necessary in order to make an adequate environ-
mental evaluation must be available before the final impact statement is filed.
This is inconsistent with NEPA and the CEQ guidelines, under which the final
impact statement is the vehicle for setting forth all the information required
for an environmental evaluation.
Moreover, if EPA is entitled to have additional information before the final
impact statement is filed, it is very easy to conclude .that this additional
information should be made available to the public and all interested parties,
by means of an additional draft environmental impact statement. After all,
neither NEPA nor the CEQ guidelines contemplate that EPA is in any special
position from the standpoint of obtaining information from the lead agency--
and I do not think we should ask for any such special position. Any information
that EPA needs in order to make a complete environment assessment should
also be made available to any other group that wants to make such an assess-
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merit. This means that the information ought to be in either the draft or the
final statement, which are publicly circulated documents. Thus, if we take the
position that the information be made available before the final impact state-
ment is filed, we would have to support the argument that the additional infor-
mation should be in the draft statement.
Environmental groups are now starting to make the argument that draft en-
vironmental statements--as well as final statements--must meet certain stand-
ards of adequacy and completeness. The argument, if accepted, could have
important practical consequences. For instance, it might mean that in many
cases several draft statements would have to be circulated before the final
statement is filed, so that the lead agency is certain that its final draft state-
ment meets all legal standards. I do not think we should support this position,
since it would make NEPA procedures unduly cumbersome. I think that the
request in our Oconee Letter for additional information before the filing of
the final statement does support the environmentalist position in this respect,
and for this reason I think it should be stricken.
2. The Ocones letter also suggests that certain information required for an
environmental evaluation might be supplied after the final impact statement
is filed with CEQ, according to a definite time table. I have no legal objection
to this sentence, but I think you should realize that it does increase the prob-
ability that the final statement for the Oconee Nuclear Station will be held to
be inadequate. In the Tennessee-Tombigbee Waterway case, the plaintiffs are
attacking an environmental statement which left some of the environmental
questions open for further study. Basically, the plaintiffs there are contending
that the Corps must complete its environmental studies before filing the final
statement, so that an environmental evaluation can be completed before the
project is started. The district judge apparently accepted this position since
he has granted a temporary injunction against the Tennessee-Tombigbee pro-
ject.
Of course, if the information presented by AEC is inadequate, we must point
this out, even though the necessary data may not be obtainable before the AEC
wishes to file its final impact statement. However, you must realize that a
commitment by the AEC to supply the additional information at a later date
will not necessarily protect the AEC from the duty of defending its final EIS
against the charge that it is inadequate.
§§§§§§ §
TITLE: Necessity of Environmental Impact Statement when Issuing a
Discharge Permit to a "New Source"
DATE: September 28, 1973
You have asked, in effect, whether a State which is operating an NPDES per-
mit program approved by the Administrator under Section 402 of the FWPCA
Amendments of 1972 (the Act), must prepare an environmental impact state-
ment when issuing a discharge permit to a New oource.
The answer is no.
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Section 102 of the National Environmental Policy Act of 1969 (NEPA) provides,
in part, that environmental impact statements are to be prepared by "all
agencies of the Federal Government" on "major Federal actions significantly
affecting the quality of the human environment."
Thus, by its terms, NEPA applies only to federal agencies and imposes no
duties upon the States. See, e. g., Ely v. Velde (4th Cir. 1971) 451 F 2d 1130;
Miltenberger v. Chesapeake and dEo Railroad (4th Cir. 1971) 400 F 2d 271.
Section 402 was apparently deliberately drafted to avoid an inference that the
States were receiving a delegation of,federal permit issuance authority, there-
by arguably subjecting them to other federal laws, including NEPA. The
House Report declares that "permits granted by States under section 402 are
not Federal permits -- but State permits." (H. Rep. 92-911, 92nd Cong.,
2ndSess., 121). Rep. Wright, a conferee stated:
In the event [EPA approval of the State permit program], the
States, under State law, could issue State discharge permits.
These would be State, not Federal, actions, and thus, whether
for existing or new sources under section 306, such permits
would not require environmental impact statements.
(Cong. Rec. daily ed., Oct. 4, 1972, at H 9129).
Moreover, I cannot agree with the statement in your memorandum that EPA
retention of veto power, pursuant to section 402(c), over State issued permits
constitutes federal action requiring an environmental impact statement.
Section 511(c) of the Act creates a limited exception to the rule under which
the Agency is presently operating; that the requirements of NEPA, at least
insofar as impact statements are concerned, do not apply to its regulatory
program. I/
This section, while expressly exempting most of the Agency's actions under
the Act from the purview of NEPA, extends the obligation to prepare impact
statements to certain actions of the Administrator, namely: (1) issuance of a
permit under section 402; and (2) provision of Federal financial assistance for
the construction of publicly owned treatment works authorized by section 201.
Issuance of a permit by a State is not an " ction of the Administrator" and
hence is not covered by section 511(c) anymore than is State provisions of
financial support to a municipally owned treatment works. Similarly, a de-
cision by the Administrator not to veto a State issued permit is not "issuance
of a permit" and is equally outside the scope of section 511(c).
The Agency's position has been upheld by the Third, Fourth, Sixth,
Tenth and D. C. Circuits.
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NEPA — SUMMARY OF MAJOR DECISIONS
TITLE: Summary of Major Decisions
DATE: February 14, 1972
The National Environmental Policy Act requires every Federal agency in con-
nection with)( major actions significantly affecting the quality of the human
environment , to prepare environmental impact statements. Prior to pre-
paring the statement, the agency must obtain comments of any Federal agency
which has jurisdiction by law or special expertise with respect to any en-
vironmental impact involved. " The statement is required to flaccompany the
proposal through the existing agency review processes. "
Calvert Cliffs Coordinating Committee v. AEG held that the AEC, in dis-
charging its responsibilities under NEPA wTEn~respect to water quality con-
siderations, could not rely on a state certification that a proposed nuclear
power plant would comply with water quality standards. While water quality
standards would serve as the minimum, the AEC was nevertheless obligated
to independently reconsider water quality factors to determine whether higher
requirements should be imposed in light of the over-all cost benefit balance
of the particular plant.
Calvert Cliffs also rejected the AEC's contention that its consideration of en-
vironmental issues under NEPA could be confined to points that were raised
and disputed by the parties. It is this holding which raises the possibility
that NEPA will become impossibly cumbersome, since itmeans that an agency
must consider all possible, relevant environmental issues in every case, rather
than confining itself to issues raised by the parties in contested cases -- which
would be a much more manageable task.
A second major decision is the Greene County Planning Board v. FPC. There
the Second Circuit held that the FPC must prepare an environmental impact
statement before its hearing examiner holds a hearing on the merits of a pro-
ject. The prior practice of the FPC had been to append an environmental
impact statement to its final opinion. The Second Circuit relied on the language
in NEPA requiring a statement "to accompany the proposal through the existing
agency review processess. " The hearing before the examiner, in the Second
Circuit's view, is part of the "existing agency review processess."
The Greene County decision emphasizes the need for preparing the environ-
mental impact statement at an early stage of the planning for a project, how-
ever, is that the environmental impacts of a particular project may not be
known or fully investigated while the proposal is at an early stage. Indeed,
as a proposal is being reviewed, it seems likely that there will be considerable
investigation of its environmental impacts. Thus, for example, an FPC hear-
ing is likely to produce considerable information on environmental impacts --
information which may make an earlier filed environmental impact statement
look inadequate. Thus agencies are now faced with the problem of preparing
their statements early enough in their review process to satisfy Green County,
but late enough so that all the important environmental impact information can
be developed for inclusion in the statement.
-577-
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There have been several key decisions on the contents of environmental im-
pact statements. In Natural Resources Defense Council v. Morton, the Court
of Appeals for the District of Columbia Circuit recently held up the leases for
off-shore drilling on the ground that the statement did not adequately consider
all sources of oil supply. Specifically, the statement did not consider abolition
of the oil import quota system or the easing of the quotas. The court rejected
Interior's contention that it did not have to consider alternatives which are
beyond its power to effectuate. The court pointed out the environmental impact
statements are designed not only for the particular agency taking the action,
but also for the President, the Congress, and the general public; therefore,
alternatives which could be effectuated by legislation should be discussed.
Committee for Nuclear Responsibility v. Seaborg (the Amchitka case), also
considered the contents of environmental impact statements. That case held
that a statement should mention and discuss all responsible conflicting views
on the environmental impact of a project, even where the agency disagrees
with some of the views. In other words, the statement should not simply be
a brief for the project, but instead it should set forth the full range of respon-
sible opinion concerning the impact of the project.
A significant pending case is Sierra Club v. Sargent, in the Federal district
court in Seattle. There the Sierra Club is challenging a permit issued to an
Arco refinery on the ground of failure to file an environmental impact state-
ment. One contention being made is that, even if no statement is required for
water quality considerations, there should still be a statement with regard
to the impact of the new refinery on the character of the area, including the
probability that it will attract future industry and create an industrial complex
where none previously existed. The implication of this contention is best under-
stood in light of the Fifth Circuit1 s decision in Zabel v. Tabb. There it was
held that, under NEPA, the Corps of Engineers was empowered to deny a
dredge and fill permit on environmental grounds, despite an absence of effect
on anchorage or navigation. In other words, NEPA not only is a requirement
to discuss environmental issues; it is also a grant of power to act on the basis
of environmental consideration. (This is also implicit in theTTalvert Cliffs
decision, which rules that the AEC may stop construction or operation of
nuclear power plants on the basis of environmental consideration.)
In short, if the plaintiffs in Sierra Club v. Sargent are right, then EPA will be
empowered to deny or condition discharge permits on the basis of the general
environmental impact of the plant, including its impact on land use in the area
and possibly also the impact of the product which it manufactures. This would
mean a very broad grant of power to EPA (or to any other federal agency which
issues licenses required by businesses). It would put EPA in the position of
an industrial zoning board, and also require it to assess the general economic
and environmental utility of new manufacturing plants in order to balance the
environmental and costs. This raises the question of whether NEPA was in-
tended to grant such broad powers to any federal agency. If not, there will
have to be some limitation placed on the scope of environmental impacts that
the licensing agency must consider. However, so far the courts have tended
to expand, rather than contract, the scope of the NEPA process.
§§§§§§§
-578-
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TITLE: Calvert Cliffs Decision
DATE: August 4, 1971
In its decision involving the Calvert Cliffs nuclear plant, the Court of Appeals
for the District of Columbia Circuit has required the AEC to conduct pro-
ceedings evaluating the environmental impact of nuclear power plants presently
under construction. Calvert Cliffs Coordinating Committee, et al. v. AEC,
et al., (D.C. Circuit Nos. ^4«S9, 24871, July iS, 1971). The Administrator
asked Mr. Eardley for advice on what position EPA should take with respect
to the AEC proceedings that will beheld pursuant to the Calvert Cliffs decision.
In the Calvert Cliffs case, a citizens' group challenged the granting of a con-
struction permit for the Calvert Cliffs nuclear plant on several grounds. One
ground was the AEC's refusal to consider the environmental impact of the
plant. The AEC took the position that where water quality certifications had
been provided under section 21(b) of the FWPAC, no further environmental
consideration was required on the AEC's part. The Court of Appeals disagreed,
holding that the National Environmental Policy Act required the AEC to engage
in an independent re view of environmental factors as they relate to construction
and operation of the plant. The Court of Appeals stated:
As to water quality, section 104 [of NEPA] and [Section
21(b) of FWPCA] clearly require obedience to standards
set by other agencies. But obedience does not imply total
abdication. * * * [Section 21(b)] does not preclude the
Commission from demanding water pollution controls from
its licensees which are more strict than those demanded
by the applicable water quality standards of the certifying
agency.* * *
* * * Water quality certifications essentially establish a
minimum condition for the granting of a license. But that
need not end the matter. The Commission can then go
on to perform the very different operation of balancing the
overall benefits and costs of a particular proposed project,
and consider alterations (^bove and beyond the applicable
water quality standards) which would further reduce en-
vironmental damage. [Slip opinion 29-31] (Emphasis in
original).
Under this opinion, AEC must respect water quality standards, and there is
nothing in the opinion permitting the AEC to scond-guess EPA as to what the
standards are and what they require. However, the opinions clearly precludes
AEC from delegating to EPA or any other agency its obligation under NEPA to
consider whether protective measures in addition to those called for by water
quality standards must be required.
Accordingly, when the AEC holds its "environmental impact" proceedings pur-
suant to Calvert Cliffs, EPA must continue with whatever administrative or
judicial proceedings it may be engaged in at the time with respect to the power
plants involved, since it is EPA's proceedings which will set the minimum
level below which AEC must not permit its licensee to fall. However, under
Calvert Cliffs, we cannot dictate to the AEC whether or not it should take
-579-
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additional protective measures beyond what water quality standards require.
Accordingly, all we can do in connection with the AEC proceedings themselves
is to intervene and present our views whenever the particular circumstances
of the case make such intervention advisable.
§§§§§§§
TITLE: Environmental Impact of Nuclear Power Plants --
Relationship between AEC and EPA
DATE:
A recent decision of the Court of Appeals for the District of Columbia Circuit
requires the Atomic Energy Commission to consider the environmental impact
of any nuclear power plant in connection with the granting of construction and
operating licenses. The AEC's position had been that in any case where water
quality certifications had been obtained from either State agencies or EPA
pursuant to Section 21(b) of the Federal Water Pollution Control Act, there
are no need for further environmental consideration by the AEC. The Court
of Appeals rejected that position, holding that AEC had an independent ob-
ligation under the National Environmental Policy Act to consider the environ-
mental impact of the licenses it grants. Calvert Cliffs Coordinating Com-
mittee, et al. (D. C. Cir. 24839, 24871, decided July 23, 1971).
The Calvert Cliffs decision raises an immediate problem with respect to the
nuclear power plants under construction on Lake Michigan.
Calvert Cliffs holds that AEC is obligated to conduct proceedings in cases of
plants now under construction, to determine whether additional requirements
should be imposed during construction to alleviate environmental effects. As
you know, we are presently involved in litigation challenging the thermal
standards adopted for Lake Michigan by the Lake Michigan enforcement con-
ference. The question presented is what position EPA should take with respect
to AEC proceedings on the environmental impact of the nuclear power plants
on Lake Michigan.
As we read the Calvert Cliffs decision, the AEC must consider whether it
should require nuclear power plants to take protective measures in addition
to what water quality standards require. However, the decision does not
authorize AEC to relax water quality standards. Thus, for example, if water
quality standards specify that there shall be no thermal discharges except
those required for blowdown, AEC could require that there be no thermal
discharges at all, but could not allow thermal discharges exceeding those
required for blowdown.
Accordingly, I believe that the following three points should define our position:
1. The AEC must at a minimum require its licensees to comply with either
water quality standards or enforcement conference recommendations, and in
this connection it must respect EPA's jurisdiction to establish the standards
and/or make the enforcement conference recommendations.
-580-
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2. As noted, EPA water quality standards and/or enforcement conference
recommendations establish a minimum below which the AEC licensees cannot
go. Accordingly, where administrative or judicial proceedings in connection
with standards or enforcement conference recommendations are pending, these
proceedings will not be held up pending the outcome of the AEC proceedings.
Indeed, if there is to be any delay, it should be in the AEC proceedings, since
until the EPA proceedings are completed, the AEC does not know what mini-
mum level has been set for it.
3. Where an AEC proceeding is in progress, EPA will be permitted to in-
tervene. In the course of AEC proceedings, EPA's advice with respect to
what water quality standards and/or enforcement conference recommendations
require will be conclusive on the AEC. But, as the Calvert Cliffs decision
establishes, AEC may impose additional requirements under the National
Environmental Policy Act. As to any such proposed additional requirements,
EPA's advice will be given serious consideration.
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SECTION IX FREEDOM OF INFORMATION ACT
RELEASE OF INFORMATION
TITLE: Release of information in Regional Office files
DATE: August 5, 1971
In your memorandum of July 8, 1971, you asked generally what information
in the Regional files concerning individual dischargers must be released, what
must not be released, and what is within your discretion under the law to re-
lease or withhold. Your inquiry had particular reference to requests for in-
formation from the Businessmen for the Public Interest, a conservationist
group with which we are currently engaged in litigation over the permit pro-
gram.
With respect to the request for information made by Businessmen for the
Public Interest, you were correct in referring all inquiries which might in
any way relate to the permit program to me. I will in turn have to refer to
the Department of Justice any inquiries which that group may make to me. As
a general rule, whenever a person or organization with which we are in liti-
gation requests information, you should refer the request to this office or
directly to the United States Attorney, so long as the information requested
has some possible relevance to the lawsuit. The Justice Department simply
cannot represent us adequately in court unless they are aware of, and can
monitor the release of information to the opposing party.
Assuming that the request comes from a person or organization with which
we are not in litigation, the following ground rules may be followed:
1) Any information which has been accorded confidential treatment under
the procedures specified in permit program regulations must not be dis-
closed to a member of the public. In addition, public disclosure must not
be made in violation of 18 U. S. C. 1 905. That statute prohibits public dis-
closure, "to any extent not authorized by law, " of trade secrets, pro-
cesses, operations, style of work, or apparatus, " as well as the "identity,
confidential statistical data, amount or source of any income, profits,
losses, or expenditures of any person, firm, partnership, corporation or
association. " However, an opinion of the Attorney General, 41 Op. Atty
Gen. 166, states that a disclosure is "authorized bylaw" within the meaning
of 18 U. S. C. 1905 if it is necessary or proper in the discharge of the
agency's functions, even though there is no statute specifically authorizing
disclosure. In my opinion, a disclosure of information of the type speci-
fied in 18 U.S.C. 1905 to an organization that wished to utilize the in-
formation to participate in permit program hearings would be necessary
or proper in the discharge of this Agency's duties under the permit pro-
gram regulations, and thus would not be prohibited by 18 U.S. C. 1905, as
interpreted by the Attorney General. This, of course, does not authorize
you to disclose any information that has been accorded confidentiality under
the provisions of the permit program regulations.
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2) The question of what information you may withhold under the law is
governed by the exemptions to the Freedom~67 Information Act, 5 U. S. C.
552. There are two exemptions which describe information in your files
that may be withheld under the law, but which we are not required to
withhold. These are the exemptions for investigatory files (5 U. S. C. 552
(b)(7)) and the exemption for internal communications (5 U. S. C. 552(b)(5)).
The exemption for investigatory files would include the first five items in the
list set forth in your July 8 memorandum. However, this exemption would
apply only so long as EPA is actively considering enforcement action against
the discharger in question. If the file is kept open only to monitor results or
to keep track of compliance with a schedule, it would probably not be considered
an investigatory file for purposes of the exemption. Moreover, any material
in the file which constitutes a public document must be released, even though
it is part of an investigatory file. Thus any material designated by the permit
program regulations as being available for public inspection, as well as items
6 and 7 in your July 8 memorandum, would have to be disclosed even though
it is part of an investigatory file.
The Freedom of Information Act also exempts "interagency or intraagency
memorandums or letters which would not be available by law to a private
party in litigation with the agency". (5U.S. C. 552(b)(5)). This exemption
has been interpreted to cover only communications within the Federal govern-
ment which contain policy advice and recommendations. On this basis, com-
munications which discuss enforcement strategy and tactics, may be withheld.
But factual memoranda or letters would not be within the exemption, although
they may fall within the investigatory files exemption, depending on the cir-
cumstances.
3) If a single file contains material which must be released together with
material that must not be released or which you determine you will not
release, it will be necessary to separate the file or to make copies of the
material to be released.
4) I would emphasize that the general policy of this agency is to be as
open as possible in its disclosure of information to the public. Accordingly,
material need not be withheld from public disclosures simply because the
Freedom of Information Act would permit us to withhold it. Generally
speaking, apart from the information that must under the law be withheld
(see paragraph 1, supra), you should not withhold information from public
disclosure--even when the law permits you to do so--unless you determine
that public disclosure would severely hamper your operations.
5) We expect shortly to publish regulations covering the procedures for
requesting disclosure of documents from this agency under the Freedom
of Information Act. These regulations should be of some help to you in
handling requests from the public for information.
§§§§§§§
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TITLE: Requests for Information from Members of Congress
DATE: December 19, 1972
Alan Kirk has advised me that you and the Administrator questioned an oral
opinion of his to the effect that the exemptions contained in the Freedom of
Information Act do not apply to requests from a. member of Congress. Alan
has asked for my considered opinion on the correctness of his views.
I think it is clear that the exemptions in the Freedom of Information Act,
5 U.S. C. §552(b), do not apply to congressional requests. This is so because
subsection 552(c) provides in pertinent part:
"This section [5 U.S. C. §552] is not authority to withhold
information from Congress."
That is not to say, however, that there are no restraints on the legal power
of a Congressman to extract information from the executive branch. There
appears to be two:
1. When a Congressman writes a letter to an official of the executive
branch requesting information, his letter may not be legally sufficient to
invoke the full powers of Congress to demand information from the exec-
utive. Mink v. EPA, 1 ELR 20527 (Oct. 15, 1971), necessarily means
that the exemptions listed in 5 U. S.C. §552(b) are indeed applicable to a
congressional request if it was made under the Freedom of Information
Act, and if the Congressman thereafter brings suit under that Act. In
other words, if a Congressman wishes to resort to the Freedom of Informa-
tion Act, he has no greater rights than a private citizen. As a corollary,
if a Congressman wishes to assert his congressional prerogatives to re-
ceive information from the executive branch, he cannot bring a lawsuit
under the Freedom of Information Act, or under any other statute of which
I am aware. (It is the position of the Justice Department, as I understand
it, that a request is from the Congress within the meaning of the saving
clause in the Freedom of Information Act, only if it comes from a com-
mittee or subcommittee chairman. Frankly, I do not understand the basis
of this position, which seems to derive from custom and usage. The legal
sufficiency of a particular request from Congress has never been litigated.)
2. Assuming that a particular request from Congress is legally sufficient
to assert all available congressional prerogatives to receive information
from the executive branch, the information may be denied only on grounds
of "executive privilege." Executive privilege maybe asserted with respect
to any document internal to the executive branch, although no court has yet
reviewed the precise scope of the privilege in connection with a congres-
sional request. In any event, President Nixon's memorandum of March 24,
1969 (a copy of which John Dean's office is sending me), provides that
executive privilege may be claimed in response to a congressional request
only with the personal approval of the President.
§§§§§§§
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TECHNICAL INFORMATION
TITLE: Status of Technical Information Provided EPA by
Private Companies
DATE: January 29, 1973
I. -BACKGROUND
I have been informed by Alan Kirk that your office has requested, through
Lee Attaway, advice on when to accord confidentiality to technical information
generated by a private party, particularly when furnished EPA pursuant to
a grantor contract. I understand that there have been several cases in which
R & M personnel have refused to turn such information over to EPA's own
enforcement personnel. lam assuming, however, that the guidance requested
would be applicable to requests under the Freedom of Information Act, 5
U.S. C. §552, from members of the public as well.
II. GENERAL
It is extremely difficult for me to imagine a situation in which EPA would
be legally entitled to withhold the sort of data in question from any member
of the public who request it. As you probably know, the Freedom of Infor-
mation Act establishes the general rule that all documents in the possession
of the government are available on request to any member of the public, irre-
spective of his need for the information. There are, to be sure, several
exceptions to the general rule just stated, although only one of them would
normally be of any relevance to the data in question -- namely, the exemption
in section 552(b)(4) for "trade secrets and commercial or financial infor-
mation obtained from a person and privileged or confidential. "
EPA has promulgated regulations establishing procedures for making deter-
minations as to the applicability of the language just quoted. 40 CFR §2.107a,
effective June 12, 1972. You will note that that regulation distinguishes be-
tween "trade secrets" and other information which may fall within the scope
of the exemption.
(a) Trade Secrets. The law of trade secrecy is extremely complex,
r and its greatest complexity lies in the definition of "trade secret". Be
that as it may, a good rule of thumb to follow is that a trade secret must
meet three criteria:
(1) It must be secret, in that the company owning it must reveal it
., onlyxto employees having a need to know it, or to persons outside the
company only in circumstances constituting "privileged disclosures
(i.e., attorneys, potential customers, etc.).
(2) It must be of commercial advantage to one who knows the secret.
(3) It must not be generally known in the industry.
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As the foregoing indicates, "trade secret" is a fairly limited concept, and
a company's claim that has one should not be lightly accepted. In any event,
the attached regulation provides for procedures whereby this office will issue
a legal determination as to whether or not information requested by a member
of the public in fact constitutes the trade secrets of any other person.
(b) Other ''Confidential'' Information. When we undertook the task of
writing EPA regulations for the implementation of the Freedom of Infor-
mation Act we discovered that there was very little useful precedent as
to what "confidential" commercial information, other than trade secrets,
Congress intended to cover with the exemption in section 552(b)(4). We
have attempted to respond to that lack by defining such "confidential" in-
formation very narrowly, in conformity with the Administrator's ex-
pressed desire to pursue a generally liberal policy with respect to the
Freedom of Information Act.
By drafting the attached regulation as we did, we probably waived some
latitude that EPA may have had under the statutory provision. 40 CFR
§2.107a(b) provides, in effect, that there is no such thing as "privileged"
or "confidential" commercial information in this agency's files, unless
it was received from a third party pursuant to an advance written under-
taking to keep it confidential; moreover, no agency employee is authorized
to enter into such art undertaking unless the agency has no available legal
means of compelling disclosure of the information involved. Thus, for
example, non-trade secret data which must be submitted to the agency in
connection with an application for certification under Title II of the Clean
Air Act can never be subject to such an agreement. On the other hand,
data in a technical proposal submitted pursuant to an RFP can be subject
to such an agreement, since the party submitting the data does so volun-
tarily.
III. DATA RECEIVED UNDER GRANTS AND CONTRACTS
If it is generally difficult to withhold from the public technical data in our
files, it is doubly difficult to do so when that information has been provided
to us pursuant to a contract or grant paid for out of public funds. A trade
secret must either be a patentable device or a compendium of information
that satisfies the criteria listed in paragraph II(a), above. If it is patentable,
and is developed, say, in the course of some sort of demonstration grant, it
would be subject to the provisions set forth in Appendix B to Subchapter B,
Title 40, CFR. Although individual grant instruments may provide otherwise,
the general rule is that all right and title to patentable developments arising
from a federal grant become government property.
Trade secrets which are not patentable devices, and other information which
is not trade secrets, would be subject to disclosure at the government's dis-
cretion pursuant to Appendix C of Part 45. The Environmental Protection
Procurement Regulations in Title 41, CFR, contain analogous principles.
Thus, although certain grants and contracts may from time to time include
special provisions on confidentiality, information provided EPA pursuant to
a grant or contract wiU usually be subject to mandatory public disclosure
under applicable regulations.
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IV. EPA EMPLOYEES
It should be unnecessary to state that agency personnel, e.g., enforcement,
officials, acting within the scope of their duties have rights at least as great
as members of the general public to technical data in EPA files.
R&M personnel should be aware of the foregoing principles since it would be
highly embarrassing to the agency to be forced to renege on a verbal pledge
of confidentiality extended by scientific personnel not familiar with our regu-
lations. I would therefore suggest that Alan Kirk and Bob McManus meet with
your key assistants to expand on the above and to try to answer any questions.
§§§§§§§
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AUDIT REPORTS
TITLE: Public Availability of Audit Reports
DATE: July 25, 1973
I have your memorandum of July 11, 1973, requesting my views on the
Freedom of Information ramifications of draft EPA Order 2750.1A. Speci-
fically, you have asked whether audit reports are public documents, and if
so, at what point they become such.
As I understand section 4 of the draft, there are six kinds of "reports of
audits". Each of those six categories may be further subcategorized as
"draft reports", "action reports" and "final reports".
The Freedom of Information Act provides that all^"identifiable agency records"
must be made available to the public on request, unless they fall within one of
the nine exemptions. Exemption No. 8 deals with audit reports prepared by
or on behalf of "an agency responsible for the regulation or supervision of
financial institutions. By inference, then, Congress consciously decided not
to differentiate EPA's audit reports from other agency records.
The "reports of irregular conduct" described in section 4.a(6) of the draft
order are probably entitled to Exemption No. 7 ("investigatory files compiled
for law enforcement purposes. . . "). Beyond that, it seems to me that any
decision to refuse a public request for an audit report must be based on
Exemption No. 5. Roughly speaking, this exemption covers those portions
of internal memoranda consisting of policy advice and recommendations, as
opposed to "facts".
Although Exemption No. Sis probably the most frequently invoked exemption,
it is surely the most confusing, and the Agency is presently involved in sev-
eral lawsuits concerning its scope. For the time being, we are willing to
argue that draft document--notwithstanding they may consist wholly or partly
of 'facts"--actually represent the author's recommendations to higher au-
thority. On this basis, therefore, we would argue that "draft reports" may
be withheld. "Action reports", on the other hand, are defined in the draft
order as "factually-correct positions of the Office of Audit. ..." Although
EPA may withhold those portions of action reports which contain recommenda-
tions, it is my opinion that their factual portions would have to be disclosed
on request. For purposes of FOIA, "final reports" would be regarded no
differently than "action reports".
In sum, it is my opinion that the agency may elect to withhold
(1) reports of irregular conduct;
(2) draft reports;
(3) non-factual portions of action reports and final reports.
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It should be noted that FOIA does not prohibit the release of documents; it
merely exempts certain documents from mandatory public disclosure if the
agency chooses to invoke an exemption.
Section 10 of the draft order should be revised in light of the foregoing.
Finally, I have two editorial comments:
(1) "Exit conference" should be defined.
(2) The references to "factually-correct" are unfortunate, in that they
suggest there are documents which are "factually-incorrect". I think
the distinction that should be drawn relates to the finality with which EPA
has embraced a given fact, and not whether that fact is 'correct".
§§§§§§§
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INTERPRETATION OF THE FREEDOM OF INFORMATION ACT AND THE
FEDERAL ADVISORY COMMITTEE ACT
TITLE: Applicability of the Freedom of Information Act and the Federal
Advisory Committee Act to Meetings of Subcommittees
DATE: May 4, 1973
I have your memorandum of April 30, 1973, in which you ask several ques-
tions concerning the applicability of the Freedom of Information Act and the
Federal Advisory Committee Act to meetings of subcommittees of the En-
vironmental Radiation Exposure Advisory Committee.
Your specific questions and my answers are as follows:
QUESTION 1.
Is it appropriate to establish informal subcommittees to carry out the tasks
assigned?
ANSWER.
Based on the information contained in your memorandum, it seems both
appropriate and lawful to establish informal subcommittees along the lines
set forth in your memorandum. The definition of "advisory committee" in
the Federal Advisory Committee Act (Public Law 92-463) includes "subgroups"
of any other advisory committee. However, OMB (which has authority under
the statute to prescribe administrative guidelines and management controls)
has published Circular A-63 in the Federal Register, and has drawn a dis-
tinction between "formal" and "informal subgroups". According to OMB's
interpretation, only formal subgroups fall within the definition of advisory
committee set forth in the statute. As I read subparagraph 4(a)(4) of Cir-
cular A-63, it is my impression that the subcommittees referred to in your
memorandum are "informal". It would follow that they need not have been
established in the charter which the parent advisory committee has filed with
OMB.
QUESTION 2.
Is it required that informal subcommittee meetings be announced in the Federal
Register for work in progress?
ANSWER.
Paragraph 4(a)(4) of OMB Circular A-63 suggests that notices of meetings
of an informal subgroup need not be published in the Federal Register. And
subparagraph 10(a)of the Circular points out that the provisions of paragraph
10 apply to all advisory committee meetings, including those of formal sub-
groups, and states further that application of the paragraph to informal sub-
groups is determined by the parent committee. "subject to review by the
agency head or the OMB secretariat to ensure that there is no use of informal
subgroups to evade the requirements of the Act. " This language suggests
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that a parent advisory committee may decide to treat the subcommittees--
even though they may be "informal subgroups" -- just as the parent com-
mittee itself is treated for purposes of the Federal Advisory Committee Act.
Whether or not the parent committee chooses to do so appears to be a matter
within its discretion, at least until such time as somebody claims that the
purpose of the statute is being evaded.
QUESTION 3.
For work in progress on a specific task as defined above do subcommittee
meetings have to be open to the public ?
ANSWER.
Subcommittee meetings need not be open to the public as a matter of law,
for the same reason that their meetings need not be noticed in the Federal
Register. It should be noted that the notion of "work in progress" has no
legal relevancy. Even under the Federal Advisory Committee Act, certain
meetings of advisory committees, and therefore of subgroups, can be closed
to the public for reasons enumerated in the statute and in OMB Circular A-63,
but none of those reasons has to do with whether or not the meetings is con-
sidering "work in progress".
QUESTION 4.
Do draft internal working documents which are used or prepared by a sub-
committee have to be made available to the public upon request ?
ANSWER.
It is impossible to answer this question in the abstract. The relevant statute
here is the Freedom of Information Act. There are exemptions to the Act's
general requirement of mandatory public disclosure, but each of those ex-
emptions depends for its applicability on particularized consideration of the
document in question. I would assume that the working documents of an ad-
visory committee, or a subgroup thereof, would constitute intra-agency memo-
randa within the meaning of Exemption No. 5 of the Freedom of Information
Act (although the issue is not entirely free from doubt, and has not yet been
resolved by the courts). If so, they would be exempt from mandatory public
disclosure only to the extent they contained policy advice or recommendations;
factual material in such documents would be subject to the disclosure require-
ment, unless it is "inextricably intertwined" with policy advice and recom-
mendations.
It should be noted that the notion of a "draft" is legally irrelevant to the
applicability of the Freedom of Information Act. Nonetheless, it may be that
we could argue that the wording of a draft document, and the choice of its con-
tents, constitute in essence the advice and recommendation of the drafter to
a superior or a parent body as to the final dimensions of the document, and
that a draft should therefore qualify for Exemption No. 5.
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QUESTION 5.
You have also asked whether the National Radiation Protection Program
Strategy and Plan, a document prepared by ORP can be sent to the subcom-
mittee members without making it available to the public at the same time.
ANSWER.
The public availability of this document, as I understand it, does not depend
on whether or not ORP makes it available to the members of an advisory com-
mittee. The issue is whether or not it is an identifiable agency record not
eligible for one of the exemptions in the statute. The fact that the document
is looseleaf and subject to change does not distinguish it, in my view, from
the United States Code. And the fact that some of the information contained
in it maybe "inappropriate" does not make it a secret document. While there
may be portions of the document which are eligible for withholding on the
grounds that they constitute policy advice and recommendation, or perhaps
even on national security grounds, my initial reaction is that any court in the
country would immediately order disclosure of this document in toto, whether
or not it had first been distributed to members of an advisory committee.
§§§§§§§
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CONFIDENTIALITY OF INFORMATION
TITLE: Tapes of Advisory Committee Meetings
DATE: April 4, 1973
DISCUSSION
This memorandum is to confirm the substance of our telephone conversa-
tion of March 26, 1973, pertaining to the public availability of tape recordings
of a meeting of an EPA advisory committee.
As I understand the facts, the meeting of the advisory committee in question
was convened in accordance with the procedural provisions of the Federal
Advisory Committee Act, and advance notice of the meeting was duly published
in the Federal Register. In addition, I further understand that the meeting
was not closed to the public, and that members of the public in fact attended.
You have now received a request for inspection of the tapes of the meeting
from an attorney representing a company that was personally represented
at the meeting in question. 1 /
It is my opinion that the tapes in question constitute "identifiable records"
within the meaning of the Freedom of Information Act, 5 U. S. C. §552(a)(3),
that none of the exemptions set forth in 5 U.S.C. §552(b) is applicable,
and that the tapes must therefore be made available for inspection by the
person requesting them.
As I explained to you on the telephone, no published judicial opinions are
squarely on point. But if EPA were sued to compel disclosure of the tapes
in question, I would predict with a high degree of confidence that any federal
district judge would rule in favor of the plaintiff. I recognize, of course,
that a highly technical argument can be made to the effect that a tape is
not a "record. " I strongly believe, however, that any judge confronted
with a decision in this case would fall back on the dictates of common sense.
Such a judge would surely point out that the meeting in question was open to
the public, that the remarks recorded on the tape were presumptively made
for public consumption, and that the Federal Advisory Committee Act itself
requires the Agency to prepare publicly available written minutes of a meet-
ing. Such a judge would reason, I believe, that it would constitute an ele-
vation of form over substance for the Agency to argue that a tape in this con-
nection was not a "record. " And, since there is no conceivable argument
that an exemption in the Freedom of Information Act is applicable, such a
judge would order disclosure.
11 John Adams, the attorney making the request in this case, has advised me
that the person representing his client at the meeting was unable to hear all
of the proceedings.
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I am aware of the arguments earnestly advanced by Mr. Linde of your staff
to the effect that (1) members of the advisory committee would prefer that
their raw remarks be sanitized by the Agency prior to being made available
to the public, and (2) to the effect that the tapes in this case are functionally
no different from notes that any of us might take for the purpose of pre-
paring written summaries of oral proceedings. To respond to those points
in order:
(1) While certain internal memoranda are exempted from the disclosure re-
quirements of the Freedom of Information Act, on the theory that people will
not always be candid if they know their remarks may be publicly available,
that philosophy cannot apply to remarks made in a public forum. And, in
my view, it violates the spirit of both the Federal Advisory Committee Act
and the Freedom of Information Act for an agency to say that it is willing
to make a record of public proceedings publicly available only after they
have been edited to delete matters that may tend to embarrass the speakers
in question.
(2) I agree that a court would probably treat our handwritten notes differ-
ently than the tapes now in issue. Such ephemeral work products as hand-
written notes, however, are by nature highly selective and subjective. Even
if it is kept for essentially the same purpose, a tape is different in that it
is the closest approximation of objective truth that modern technology has
yet been able to devise for the recording of words. To the extent a tape
may be unintelligible in part, or may fail to make it clear which of several
people in a room was speaking, those defects of medium are manifest to
any person listening to a tape. I therefore believe that a court would dis-
tinguish tapes and handwritten notes on the basis of the presumed objectivity
of the latter.
§§§§§§§
TITLE: Confidentiality of Trade Secret Information Obtained under Sec-
tion 211 ("Regulation of Fuels") of the Clean Air Act
DATE: February 24, 1971
DISCUSSION
1. This is in response to your oral request of February 22, 1971, for our
opinion whether the "Clean Air Amendments of 1970" require modification
or deletion of the regulation (42 CFR 479. 3) relating to the confidentiality of
trade secret information obtained pursuant to the Clean Air Act. Specifi-
cally, you asked about information obtained under Section 211, "Regulation of
Fuels. "
2. Prior to the enactment of the 1970 amendments, Section 210(c) read, in
part:
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"All information reported or otherwise obtained by the Secretary or
his representative . . . [for the purpose of fuel additive registration]
which information contains or relates to a trade secret or other matter
referred to in section 1905 of title 18 of the United States Code, shall
shall be considered confidential for the purpose of such section 1905. .. "
3. The "Clean Air Amendments of 1970" repealed this subsection. More-
over, these amendments altered similar provisions in other sections of the
Act (see §114(c) and 208(b) to effectuate a general policy of making infor-
mation obtained under those sections available to the public, except for infor-
mation determined by the Administrator to relate to trade secrets. Ordinar-
ily, in the absence of an express exemption from 18 U.S. C. 1905, that section
would apply even without reference to it in the Clean Air Act. Thus, the
question is whether, in light of the repeal of section 210(c) and the other
changes, the confidentiality requirement of 18 U.S.C. 1905 becomes inappli-
cable to information obtained pursuant to section 211 of the Act.
4. While the changes in the 1970 amendments provide some support for the
view that even information which "concerns or relates to" a. trade secret
and which is obtained pursuant to section 211 should not be considered con-
fidential, we think the intent of Congress was to retain the requirement of
confidentiality as applied to section 211, with two exceptions.
5. First, section 211(b)(2) expressly states, "The result of ... tests
[to determine public health effects of a fuel or additive under subparagraph
(A)] shall not be considered confidential. " Second, in obtaining information
pursuant to section 211(c)(3)(A), the subpoena power of section 307(a) is
applicable. Section 307(a)(l) provides that 18 U. S. C. 1905 applies to trade
secret information obtained by subpoena, "[e]xcept for emission data. "
Emission data which is submitted not in response to a subpoena under sec-
tion 211(c)(3)is not expressly exempted from 18 U.S.C. 1905 and, therefore,
should be afforded confidential status, if the Administrator determines that
such data relate to a trade secret.
6. In addition to spelling out the exceptions to the confidentiality require-
ment, these provisions demonstrate Congressional intent to have 18 U.S.C.
1905 apply to section 211 information, except where expressly made inappli-
cable. Had Congress intended to exempt section 211 from 18 U.S.C. 1905,
it could have so stated.
7. In the absence of such an express exemption, we believe information
obtained pursuant to section 211 must remain confidential if it relates to a
trade secret, except for test results under section 211 (b)(2) and emission data
subpoenaed under section 211 (c)(3).
8. It should be pointed out that only that information which the Administrator
determines "concerns or relates to" trade secrets (18 U.S.C. 1905) is to be
considered confidential. Some information, such as the public health effects
resulting from use of a known additive, would not be expected to concern or
relate to" a trade secret.
§§§§§§§
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TITLE: Confidentiality of Fuel Additive Information
DATE: September 29, 1971 >
FACTS
Pursuant to regulations issued under the 1967 Clean Air Act, fuel additive
manufacturers and fuel manufacturers have submitted certain information re-
garding the chemical composition of additives, the use of additives in fuel,
and the effect of additives in fuel as a condition of registration of each additive.
Representatives of Ralph Nader have contacted the Office of Fuel Additive
Registration (AQC) and asked for disclosure of this information. The specific
information requested is that contained in the Fuel Additive and Fuel Manu-
facturer Notification forms which accompany each registration. Certain items
of that information have been designated by the manufacturers to be trade
secrets or otherwise protected from disclosure underthe terms of 18 U.S. C.
section 1905.
QUESTIONS
1. Do the exemptions in the public Disclosure Act prevent EPA from releas-
ing the information requested which is designated a trade secret or other-
wise protected information?
2. Does 18 U. S. C. section 1905 prevent disclosure of the information?
3. What factors determine whether an item of information is protected, either
as a trade secret or otherwise ?
4. What procedure should EPA follow in determining what may be disclosed
in this case and in future situations ?
ANSWER
The exemptions in 5 U. S. C. section 552 permit the information to be withheld
from disclosure but do not prohibit the disclosure. The information is, how-
ever, subject to the prohibitions contained in 18 U.S.C. section 1905 against
disclosure of trade secrets. The agency may, therefore, disclose only that
information which is not, as a matter of law, a trade secret or otherwise
protected. Determination of what is a trade secret will depend on an analysis
of the facts, using as a guideline the factors contained in the discussion be-
low. The knowledge of analytical chemists familiar in the field will be
required. Since final designation of the information as a trade secret or not
depends on a variety of facts, the manufacturers who have designated their
fuel or additive information as trade secrets should be given the opportunity
to substantiate their claim before any disclosure is made.
DISCUSSION
1. Section 552 of Title 5 of the United States Code states a general policy
of disclosure of information obtained by the Government. A specific exemp-
tion to this obligation is contained in 5 U. S. C. section 552(b)(4) which applies
to trade secrets and commercial or financial information that is privileged
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or confidential. Thus, the Administrator is not required to divulge the in-
formation in question which is a trade secret or which is commercial or
financial information that is privileged or confidential. However, this exemp-
tion does not prohibit the disclosure of such information; it merely authorizes
the withholding of the information and does not require the Administrator to
keep the information confidential. There have been no cases holding dis-
closure of such information is prohibited under this exemption. The Attorney
General's office has indicated that disclosure may be made of information
covered by the exemption !_/ and Professor Davis has been even more explicit
in his interpretation of the Public Information Act: "The Act never forbids
disclosure. It never protects privileged or confidential information from
disclosure; it protects only from required disclosure. "_V Section 552(b)(3)
contains an exemption for information that is specifically exempted from
disclosure by statute. Therefore, reference must be made to statutes such
as 18 U.S. C. section 1905 before any disclosure is made. Thus, the effect
of 5 U. S. C. section 552 is neither to require nor to prohibit the disclosure
of trade secret or confidential information. The disclosure of such informa-
tion remains within the discretion of the official, subject to any other perti-
nent laws.
2. Section 211 of the Clean Air Act does not contain any language relating
to the disclosure of information obtained from manufacturers under that sec-
tion. This is in contrast to other sections of the Act such as section 208(b)
which enunciate a policy of disclosure unless the information is entitled to
the status of a trade secret under 18 U. S.C. section 1905. The predecessor
section of 211 contained language protecting trade secrets or other matter
referred to in 18 U.S.C. section 1905,3/ but this was deleted by the 1970
amendments. The effect of this omission is not clear. Whether information
which does not contain or relate to a trade secret obtained under section
211 should be disclosed has not yet been determined. But it appears that
information obtained pursuant to section 211 should be held confidential if
it relates to trade secrets as provided in 18 U.S.C. section 1905, except
for test results under section 21 l(b)(2)(B) and emission data subpoenaed under
section 211(c)(3) and section 307(a).
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3. The provisions of 18 U. S.C. section 1905 are as follows:
Whoever, being an officer or employee of the United
States or of any department or agency thereof, pub-
lishes, divulges, discloses, or makes known in any
manner or to any extent not authorized by law any in-
formation coming to him in the course of his employ-
ment or official duties or by reason of any examination
or investigation made by, or return, report or record
made to or filed with such department or agency or offi-
cer or employee thereof, which information concerns
or relates to the trade secrets, processes, operations,
style of work, or apparatus, or to the identity, confi-
dential statistical data, amount or source of any income
return or copy thereof or any book containing any ab-
stract or particulars thereof to be seen or examined by
any person except as provided by law; shall be fined
not more than $1, 000, or imprisoned not more than one
year, or both; and shall be removed from office or em-
ployment.
4. This section prohibits the disclosure of any information obtained from the
manufacturers which "concerns or relates to the trade secrets, processes,
operations, style of work, or apparatus, ... of any person, firm, partner-
ship, corporation, or association." The determination of what items of infor-
mation obtained from the manufacturers may be disclosed therefore depends
on an interpretation of what items are in fact trade secrets or secret pro-
cesses. The manufacturers have designated that information which they be-
lieve is a trade secret or otherwise confidential. Information not so desig-
nated has already been disclosed. However, treatment .of information by the
manufacturer as a trade secret is not the determining factor. It is the
ultimate responsibility of the official in possession of the information to make
the final decision as to what should or should not be considered a trade
secret, based on information received from the manufacturers and knowledge
of the industry. Clearly, the decision of the official is not immune from
attack and the final determination of the status of any of this information
would have to come from a court of law. By using past judicial guidelines,
the official can consider the same factors the court would use in reaching
the decision.
5. Unfortunately, judicial interpretation of 18 U.S.C. section 1905 has not
been extensive. It is therefore necessary to consider trade secrets in other
areas. Obviously, the problem is more difficult in view of the wide range
of information that EPA has been asked to disclose. Since there is no
specific item which we can specifically discuss, this memorandum can only
suggest general guidelines and considerations to apply to each particular
item of information. 4/
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6. An exact definition of a trade secret does not exist since courts interpret
each case on its facts and often define the trade secret in terms to reach
the conclusion the court feels is warranted in the particular case. 5/ The most
often cited definition of a trade secret is found in the Restatement of Torts
(1939), section 757 (comment b): —™
A trade secret may consist of any formula, pattern,
device, or compilation of information which is used in
one's business, and which gives him an opportunity to
obtain an advantage over competitors who do not know
or use it. It may be a formula for a chemical compound,
a process of manufacturing, treating, or preserving
materials, a pattern for a machine or other device,
or a list of customers ... A trade secret is a process
or device for continuous use in the operation of the busi-
ness. Generally, it relates to the formula for the pro-
duction of an article. It may, however, relate to the
sale of goods or to other operations in the business
such as a code for determining discounts, rebates or
other concessions in a price list or catalogue, or a list
of specialized customers or a method of bookkeeping
or other office management.
Some courts have provided their own general definitions which contain essen-
tially the Restatement language. Q_l
7. The range of information which may be considered a trade secret is,
therefore, quite broad. However, everything which could be a trade secret
will not necessarily be entitled to protection. Final determination in each
case rests with an analysis of the item in light of the various factors which
have been judicially determined to be a consideration in finding trade secrets.
8. First, it is essential that there be some element of secrecy involved and
that the information not be generally known in the trade. 1] For example,
in one case, the ingredients in a cake food mix which were common know-
ledge in the baking industry could not be a trade secret. 87 In Pretexol Cor-
poration v. Koppers Company, 229 F. 2d 635 (2d Cir. 1956), the plaintiff
had a formula for a fire retardent for wood. The elements in the composi-
tion were generally known in the trade but the specific proportions were
not. The defendant marketed a similar product using the same elements but
in different proportions than used by plaintiff. The court refused to pro-
hibit defendant's sale of the similar product since it found that the combina-
tion of the chemicals was not new and plaintiff's only claim for a special pro-
perty right could be based on the proportion or percentage of the chemicals
in the product. Since the new product had different proportions, there was
no infringement on the secret process of the plaintiff. Also, a system or
arrangement of components may be the subject of a trade secret, even though
each component is known and a part of the public domain, when the unified
process, design and operation of the system is a unique combination and is
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not known in the trade so that a competitive advantage is provided. £/ Even
though a process is not complicated, itcanbe atrade secret when no one else
has it and it is not possible to discover the process by examination of the
finished product. 10/ To be a trade secret, a product need not reach the
status of an inversion, but it must represent some considerable independent
efforts on the part of the claimant. 11 /
9. If a device or process has in fact been patented, it cannot be a trade
secret. 12/ Because the patent discloses the process or device to all who
wish to "examine it, the element of secrecy is gone and protection is not
necessary. If discovery occurs by independent research of other compan-
ies, there also is no basis for protection. In Drew Chemical Corporation
v. Star Chemical Company, 258 F. Supp. 827 (W. D. Mo. 1966), a company
sought protection of its formula for a beaded stabilizer-emulsifier used in ice
cream which was being produced by former employees in competition with
the plaintiff. The court refused to enjoin the use of the product since it
found that, while at one time the process was unique and conferred a compe-
titive advantage thus deserving protection as a trade secret, other compan-,
ies had discovered the process by independent research and were using it.
It had, therefore, become public property and the defendant company could
not be prevented from using it. If disclosure occurs by other means, secrecy
will likewise no longer exist and require protection. For example, if an
examination of an item sold in the open market would reveal that which
is alleged to be secret, courts will not protect the item by designating it
atrade secret. 13J If inspection of the components of a device, however,
still does not reveal the essence of the secret, protection would be in
order. 14/ While some courts have stated that the possibility of "reverse
engineering" should not eliminate the protection of trade secret status, the
basis for such decisions is the desire to protect against or punish for a breach
of a confidential relationship. 15 / Where there is no reprehensible conduct
involved in the disclosure, tEe" need for protecting a process or device that
could be reverse engineered should not be as great.
10. Having in mind the general nature of a trade secret and the policy rea-
sons for its being protected, we must have some tests to utilize in making
a final determination. The following factors have been used by courts to
reach their conclusions: 16/
A. To what extent was it treated as a trade secret? This involves ex-
amination of several factors such as what measures were taken by the
manufacturer to safeguard the secrecy of the information and how widely
known was the information among the employees and others connected
with the business.
B. To what extent was the information known outside the manufacturer's
own business? This depends on an analysis of the particular industry
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to see what other manufacturers know about it. As discussed above, if
it is well known in the industry, protection will not be provided.
C. Has the item or process been duplicated by anyone else while it was
on the open market? If other manufacturers have similar processes or
products, there is not as great an interest in protecting the confidentiality
of it.
D. What is the value of the information to the manufacturer and to its
competitors ? If the information is of only minimal value, it should
probably not be afforded protection; something that confers a great
competitive advantage deserves protection from disclosure to com-
petitors. We must determine the amount of damage the manufacturer
would suffer from disclosure. If it is a single non-recurring item,
it would probably not deserve protection while something used in an
ongoing business and of some continuing value to that business would.
E. How much money and effort was expended by the manufacturer in
developing the process or product?!7/ One consideration here is
whether the manufacturer has had~~sufficient opportunity to reap an
adequate return on its investment.
F. What is the ease or difficulty with which the information could be
properly acquired or duplicated by others ? If, in fact, from the sale
of the product competitors could examine it and discover what is al-
legedly a trade-'secret, it should not be protected. Items will vary
greatly in the degree of difficulty to "reverse engineer" to discover
secret processes or ingredients. It will be necessary to make a value
judgment at some point that other manufacturers should not be given
the information and avoid the exertion of money and effort. We will
also have to consider the reasons the other manufacturers have not
"reverse engineered" before or whether they have done so and have
rejected the use of it.
G. What benefit will flow from the disclosure? This includes analysis
of to whom the benefit will accrue along with consideration of the public
need for disclosure and whether the need can be satisfied in any other
way.
11. Answering the above questions about each item of information desig-
nated a trade secret will require extensive effort on the part of individuals
knowledgeable in the field. We can say what a court would look to in making
its determination but it will take a scientist familiar with the development
of fuel additives to provide answers to the questions. Even then, the problem
is not resolved. Once we know the answers to questions such as how well
it is knowtf in the trade and how much effort would be required to reverse
engineer the product, someone must make the decision on cases that are
between the extremes. It is impossible to determine from case law where
the line should be drawn. Each case is decided on its own particular facts.
The same will have to be done here.
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12. Since with each item of information one of the two interested parties will
be dissatisfied, decisions should be made conservatively. If disclosure is
made, it cannot be retracted and the provisions of 18 U. S. C. section 1905
become effective if a court were to decide that the information was in fact a
trade secret. If disclosure is withheld in each case where there is some
possibility that it would be declared a trade secret, the worst result, aside
from publicity, would be a court order determining that it was not a trade
secret and compelling disclosure.
13. Any attempt by EPA to determine whether an item of information is in
fact a trade secret must necessarily be only an educated prediction of what
a court of law would decide. There is no specific definition we can apply and
therefore a trade secret only exists when a court says it does. EPA should
therefore attempt to consider all factors a court would and then make its
decision. For this reason, all pertinent information should be obtained from
the manufacturers upon which they would rely in sustaining their position.
Upon comparing this data with knowledge of EPA's own scientists and other
technical persons, a decision can be reached. If manufacturers have not
presented their reasons for claiming protection, they should be notified of
the request for disclosure prior to final determination. This procedure
should apply in this situation and in future cases involving requests for infor-
mation that could be considered a trade secret.
§§§§§§§
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FOOTNOTES
^ ^ Ti alS° keep in mind that in some ^stances the public
interest may best be served by disclosing, to the extent permitted by other
laws, documents which they would be authorized to withhold under the exemp-
tl.°Sf' Attorney General's Memorandum on the Public Information Section
of the Administrative Procedure Act (June. 1JJ871 pp. 2-3.
2/ K. Davis, Administrative Law Treatise, 1970 Supp.. p. 171.
3/ "All information reported or otherwise obtained by the Secretary or his
representative pursuant to subsection (b), which information contains or re-
lates to a trade secret or other matter referred to in section 1905 of title 18
of the United States Code, shall be considered confidential for the purpose of
such section 1905, ..." Clean Air Act of 1963 as amended by the Air
Quality Act of 1967, section 210(c).
4_/ These guidelines must necessarily come from cases not precisely in
point with the situation under discussion, insofar as the facts are concerned.
Most of these cases deal with the protection of trade secrets from disclosure
by former employees or businesses to whom a confidential disclosure had
been made during business negotiations. These are generally tort cases
and as such focus upon the accountability of the person making the informa-
tion public. The disclosure under discussion here must be based on a dif-
ferent premise since there is no tortious conduct involved in the disclosure.
As with cases involving disclosures in open court, the decision rests with
a determination of whether the "need for confidentiality outweighs the un-
desirability resulting from the protective treatment. " Gellhorn, Business
Secrets in Administrative Agency Adjudication, 22 Ad. LJ. Rev. 515 (1970);
Smith v. Dravo Corp., 203 F. 2d 369 (7th Cir. 1953J7~
5/ For one view of the problem see Note "Trade Secret Protection of Non
Technical Competitive Information," 54 Iowa L. Rev. 1164(1969) at 1169:
A trade secret is often defined as anything which is
secret and which confers a competitive advantage.
However, examination of the cases demonstrates that
protection is not afforded to all information which pre-
sumably falls within this broad definition. Rather the
term "trade secret" is applied only after the deter-
mination has been made that the information deserves
protection. If protection seems justified, the court
will emphasize employee misconduct, wrongful acqui-
sition or unjust enrichment .... If, however, the
court decides that the information does not warrant
protection, the court will apply a more restrictive
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definition, such as requiring a minimal amount of
uniqueness" of the information. Therefore, the term
"trade secret" seems purely conclusory and without
value as a means of determining the extent of protected
information.
6/ "What is a trade secret is difficult to define. However, on the whole,
•ft must consist of a particular form of construction of a device, a formula,
a method or process that is of a character which does not occur to persons
in the trade with knowledge of the state of the art or which cannot be evolved
by those skilled in the art from the theoretical description of the process, or
compilation or compendia of information or knowledge. " Sarkes Tarzian, Inc.
v. Audio Devices, Inc. , 166 F. Supp. 250, 257-58 (S.D. Cal. 1958).
7/ "The subject matter of a trade secret must be secret. Matters of public
knowledge or of a general knowledge in an industry cannot be appropriated by
one as his secret. Matters which are completely disclosed by the goods which
one markets cannot be his secret. Substantially, a trade secret is known only
in the particular business in which it is used. It is not requisite that only
the proprietor of the business know it. He may, without losing his protection,
communicate it to others pledged to secrecy. He may likewise communi-
cate it to employees involved in its use. Others may know of it independently,
as for example, when they have discovered the process or formula by inde-
pendent invention and are keeping it secret. Nevertheless, a substantial ele-
ment of secrecy must exist, so that, except by the use of improper means,
there would be difficulty in acquiring the information. " Restatement of Torts
(1939), section 757 (comment b).
8/ Henning v. Kitchen Art Foods, 127 F. Supp. 699 (S.D. 111. 1954).
9/ Water Services, Inc. v. Tesco Chemicals, Inc. , 41 OF. 2d 163 (5th Cir.
T969); Imperial Chemical Industries, Ltd, v. National Distillers Chemical
Corp., 342 F. 2d 737 (2nd Cir. 1965).
10/ Water Services, Inc. v. Tesco Chemicals, Inc. , 410F.2dl63 (5th Cir.
-
11 / Ferroline Corporation v. General Aniline and Film Corporation, 207 F. 2d
I9T2 (7th Cir. 1953),
A trade secret may be a device or process which is
patentable; but it need not be that. It may be a device
or process which is clearly anticipated in the prior art
or one which' is merely a mechanical improvement
that a good mechanic can make. Novelty and invention
are not a requisite for a trade secret as they are for
patentability. These requirements are essential to
patentability because a patent protects against unli-
censed use of the patented device or process even by
one^ who discovers it properly through independent re-
search. The patent monopoly is a reward to the
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inventor, but such is not the case with a trade secret.
Its protection is not based on a policy of rewarding or
otherwise encouraging the development of secret pro-
cesses or devices. The protection is merely against
breach of faith and reprehensible means of learning
another's secret. For this limited protection, it is
not appropriate to require also the kind of novelty
and invention which is a requisite of patentability. "
Restatement of Torts (1939), section 759 (comment b).
12./ Ferroline Corporation v. General Aniline and Film Corporation, 207
F- 2d 912 (7th Cir. 1953); Midland-Ross Corporation v. Sunbeam Equipment
Corporation, 316 F. Supp. J.YI (W.D. Pa. lb)7U); F^restT^Boratories, Inc.
v. Formulations, Inc., 299 F. Supp. 202 (E. D. Wise. 1969); Painton and
Company v. Bourns~Inc. 309 F. Supp. 271 ( S.D. N.Y. 1970).
13/ Midland-Ross Corporation.v. Sunbeam Equipment Corporation, 316 F.
Supp. 171 (W.D. Pal 1970); The Court in Midland-Ross found that even
though ascertaining all of the facts about the item from an inspection would
take some time and effort, the sale still defeated the claim that it was a
secret. See also, Midland-Ross Corporation v. Yokana, 293F.2d411 (3rd
Cir. 1961). "
14/ Water Services, Inc. v. Tesco Chemicals, Inc., 410 F. 2d 163 (5th
CTr. 1969).
15/ Sperry Rand Corporation v. Rothlein, 241 F. Supp. 549 (D. Conn.
T9"64); See also, Water Services, Inc. v. Tesco Chemicals, Inc., 410 F. 2d
163 (5th Cir. 1969); "Its [trade secret] protection is not based on a policy
of rewarding or otherwise encouraging the development of secret processes
or devices. The protection is merely against breach of faith or reprehensi-
ble means of learning another's secret. " Cataphote Corporation v. Hudson,
422 F. 2d 129, 1294 (5th Cir. 1970); In Smith v. Uravo Corp., 203 F. 2d 369
(7th Cir. 1953), the court observed that in Pennsylvania, the test was not
whether the design could have been obtained through inspection but how in
fact did the other party learn the design. The court was concerned with
condemning the employment of improper means to procure the trade secret.
The court at 375 cited Nims, Unfair Competition and Trademarks, section
148; "The fact that a trade secret is of such a nature that it can be dis-
covered by experimentation or other fair and lawful means does not deprive
its owner of the right to protection from those who would secure possession
of it by unfair means. "
16/ See Restatement of Torts (1939), section 757; Gellhorn, supra, note
I3~ in the Gellhorn article, the author points out that many of the factors
discussed here are used by examiners in Federal Trade Commission hear-
ings when determining whether to allow the testimony in open court. Lehigh
Portland Cement Co., 3 Trade Reg. Rep. paragraph 18,475 at 20,832-33
(FTC 1968).
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177 "The real test is: Is the process, formula, etc. one which requires
a considerable amount of time, effort, and/or money to obtain? It is the
work and effort required, not the quality of the mental operations needed
to produce the final result. Many things can be worked out by anyone of
reasonable intelligence provided they spend the requisite amount of time and/
or money to do so. Whether or not the results are protectable as trade
secrets depends on how much time and for money is required to work them
out. Obviously, it would do more harm than good for every trifling fact to
be protectedas atrade secret." R. Ellis, Patent Assignments and Licenses,
2nd Ed. (1943) at 17.
§§§§§§§
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TITLE: Confidentiality of Information Obtained Pursuant to §210
of the 1967 Clean Air Act -- Federal Employees Not
Concerned with Carrying out the Act
DATE: June 7, 1971
QUESTION
This is in response to your memorandum of March 15, 1971, inquiring whe-
ther the Administrator is authorized to release trade secret information ob-
tained pursuant to §210 of the 1967 Clean Air Act to Federal employees not
concerned with carrying out that Act.
ANSWER
Trade secret information obtained pursuant to §210 of the 1967 Clean Air
Act maybe released by the Administrator to other Federal employees if such
employees are concerned with carrying out the Clean Air Act "or when
relevant in any proceeding under Title II of the Act. " The only other situa-
tion in which trade secret information may be divulged to other Federal
employees is if an employee, acting in his official capacity, seeks this infor-
mation for an authorized purpose on behalf of an agency which is empowered
to issue subpoenas to another Federal agency to obtain such information.
The information should be released upon the condition that it will be treated
as confidential by the receiving agency.
DISCUSSION
1. Section 210(c) of the Clean Air Act of 1967 ("Registration of Fuel Addi-
tives") provides,
(c) All information reported or otherwise obtained by the Secre-
tary or his representative pursuant to subsection (b), which in-
formation contains or relates to a trade secret or other matter
referred to in §1905 of Title 18 of the United States Code,
shall be considered confidential for the purpose of such §1905,
except that such information may be disclosed to other officers
or employees of the United States concerned with carrying put
this Act, or when relevant in any proceeding under this title
. . .." [Emphasis added. ]
2. Pursuant to that section, regulations were issued:
"All information reported to ... the Secretary or
his representatives pursuant to this part, which infor-
mation contains or relates to a trade secret or other
matter referred to in §1905 of Title 18 of the United
States Code, shall be considered confidential for the
purpose of such §1905, except that such information
may be disclosed to other officers or employees of the
United States concerned with carrying out this Act or
when relevant in any proceeding under Title II of the
Act. "I/
II 42 CFR 79. 3
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3. While the "Clean Air Amendments of 1970" eliminated §210(c), 2/ §16(b)
of the amendments provided that "[Regulations . . . issued under Title II
of the Clean Air Act prior to enactment of this Act shall continue in effect
until revised by the Administrator. " Since the regulations remain in effect
there is no authorization for voluntary disclosure of any trade secret infor-
mation to any Federal officer or employee, except: (1) "to other officers
or employees of the United States concerned with carrying out this Act, "
or (2) "when relevant in any proceeding under Title II of the Act. " We
note, however, that the Administrator would be authorized to release trade
secret information in response to a subpoena validly issued by a Federal
agency or in response to a request by a Federal agency with authority to
issue a subpoena to another Federal agency to obtain such information. 3/
4. More specifically, in regard to the request by the National Bureau of
Standards for certain information, we agree with your letter of February 19,
1971, to Mr. James R. McNesby, that you are unauthorized to release
trade secret information for purposes not contemplated by the Clean Air
Act. However, if a particular chemical compound is widely known and used
in the industry, its identity would not constitute a trade secret and may be
disclosed. 4/ Furthermore, the legislative history of the "Clean Air Amend-
ments of 1T570" indicates Congressional intent that those who subm.it infor-
mation which they wish to have kept confidential bear the burden of proving
27 Section 210 of the 1967 Act became §211 as a result of the 1970 Amend-
ments.
3j It is clear that information may be subject to subpoena by a Federal
agency notwithstanding the fact that it contains or relates to a "trade secret. "
Menzies v. FTC. 242 F. 2d 81 (4th Cir., 1957); FTC v. Tuttle, 244 F. 2d
605 (2d Cir.~~T9"57); FTC v. Hallmark, Inc., 170~FT Supp. 24 (N.D. 111.
1958); FTC v. WalthaSTWatch Co., 169 F. Supp. 614 (S.D. N.Y. 1959).
Since a Federal employee may not lawfully resist a valid subpoena issued
by another agency, Congress must have intended to create an implicit excep-
tion to 18 U.S. C. 1905, which prohibits the release of trade secret informa-
tion, in the case of such subpoenas. Moreover, it would seem that one
agency of the executive branch would not have to insist on a subpoena when
it has a request in writing from a sister executive agency with subpoena
power.
4_/ "The subject matter of a trade secret must be secret. Matters of ...
general knowledge in an industry cannot be appropriated by one as his se-
cret. " Restatement of Torts, §757; Speedry Chemical Products. Inc. v.
Carter's Ink Co., 306 F.2d 328 (2nd Cir. 1962); Cataphote Corp. v. Hudson,
422 F.2d 1290 (5th Cir. 1970). ~
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that such information constitutes a "trade secret. "5/ The mere assertion
by a manufacturer that certain information contains~trade secrets does not
constitute proof. Manufacturers of fuel additives claiming confidential status
for specified information should be notified that unless proof is supplied which
satisfies the Administrator that the information contains a trade secret, such
information may be disclosed to the public. If insufficient evidence is forth-
coming, the information in question may be divulged to Government employ-
ees not charged with carrying out the Clean Air Act, as well as to the
public.
5. Finally, in regard to the request by the Department of the Army, a
telephone conversation with Mr. Ammlung, Acting Director of the Coating
and Chemical Laboratory, indicates that the Laboratory is charged with set-
ting standards for fuels to be used in Federal motor vehicles. In addi-
tion, the Laboratory is responsible for assuring that fuels procured by the
U. S. Army comply with applicable Federal and State standards. Since these
functions are concerned with carrying out §118 of the Clean Air Act
("Control of Pollution from Federal Facilities"), trade secret information
submitted to your office may be released to the Laboratory upon the under-
standing that the information will be considered confidential by the Labora-
tory as expressed in Mr. Ammlung's letter of February 26, 1971.
§§§§§§§
TITLE: Protection of Process Data as Trade Secrets
DATE: October 6, 1972
MEMORANDUM OF LAW
FACTS
William Johnson of Region X has recently raised the issue of the confiden-
tiality of process data submitted by a source to EPA pursuant to §114 of
the Clean Air Act. In order to provide substitute regulations for a disapproved
State implementation plan, EPA proposed an emission regulation applicable
to the source involved; the regulation was expressed in terms of pounds of
pollutant per ton of materials processed. Responding to EPA's request
under §114 of the Act, the source supplied the process data, but requested
that they be kept confidential by the Agency.
QUESTION
Is EPA obligated to protect from public disclosure process data which are
obtained pursuant to §114 of the Clean Air Act?
5/ 5 Rep on & 4abU (No. 91-1196), September 17, 1970, p 31: "The
g^^r^^^
18 of the United States Code . . .
-609-
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ANSWER
In general, process data submitted to the Administrator under §114 of the
Act are entitled to confidential treatment if a source satisfies the Adminis-
trator that the data consitute trade secrets. However, if such data are sub-
mitted following the proposal or promulgation of an emission standard ex-
pressed in terms of process values, the process data may become emission
data which cannot qualify for confidential treatment under §114, even if they
constitute trade secrets.
DISCUSSION
1. Section 114 of the Clean Air Act provides the Administrator broad author-
ity to gather information from sources --
"For the purpose of (i) developing or assisting in the
development of any implementation plan under section
110 or lll(d), any standard of performance under sec-
tion 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. "
Process data are obtainable by the Agency under section 114.
2. Under §114(c), the person submitting the information may obtain con-
fidential treatment for such information in accordance with 18 U.S. C. 1905
if such person can satisfy the Administrator that the information, "if made
public, would divulge methods or processes entitled to protection as trade
secrets of such person. " The section provides further, however, that emis-
sion data cannot qualify for such confidential treatment. The issue, then,
is whether process information constitutes or could ever constitute emis-
sion data.
3. The Congress1 purpose in providing for disclosure of emission data in
the hands of EPA (§114(c)) or a State or local agency (§110(a)(2)(F)) was
to insure that the public would have access to the information necessary
to determine whether sources are in compliance with applicable emission
limitation regulations. !_/ In our view, any information which is necessary
to that determination must be characterized as emission data.
Ty The language of §114(c), which originated in the Senate bill (S. 4358),
was discussed by the Senate Committee on Public Works as follows:
"In this section the bill also would incorporate provi-
sions designed to acquire and make available to the pub-
lic information regarding compliance with the applicable
emission standards. The Committee believes that the
public right to know what is being emitted overrides the
proprietary character of such information. " (S. Kept.
No. 91-1196, 91st Cong., 2d Sess., p. 19)
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4. Any interpretation of "emission data" which would tend to frustrate pub-
lic surveillance is inconsistent with the legislative purpose in §304, the pro-
vision for enforcement suits by citizens. 2/
5. Until the Administrator or a State or locality proposes or promulgates
a specific emission regulation which incorporates process values, process
data in the hands of the public is not directly relevant to any emission limi-
tation, and therefore can serve no public surveillance purpose. While the
confidential status of process information is more critical following the pro-
mulgation of an emission regulation which incorporates a process value,
we believe that the availability of this information to the public at the pro-
posal stage is essential to informed public involvement in the standard-setting
process, upon which the Act places much importance. Prior to such pro-
posal or promulgation, trade secret process data in the possession of the
Agency are of potential benefit only to the competitor of the person who sub-
mitted the data. Accordingly, we think that the chronology of the develop-
ment of standards is important under the Act in determining whether public
disclosure of process data is required.
2~7The importance of public disclosure of emission data to the implementa-
tion of §304 is emphasized in the legislative history. (S. Kept. No. 91-
1196, 91st Cong. 2d Sess., p. 38)
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SECTION X TAX AND ANTI-TRUST
TAX
TITLE: EPA Guidelines Under I. R.C. Section 169
DATE: June 8, 1971
In light of your recent separate memoranda, I have taken another look at the
legislative history of Section 169 of the Internal Revenue Code. I am of the
opinion that paragraphs 3(d) and 4(b)(3) of our guidelines should remain in
their present form. Naturally, it is understood that the effect of the para-
graphs in question may sometimes be to discourage the use of a "cleaner"
process, in favor of the addition of hardware which is less efficient but
which is eligible for certification as a pollution control facility.
I think it is clear that Section 169 is not intended to apply to the choice of a
cleaner production process. Senate Report No. 91-552 states at page 249:
"Since the cost of modifying an existing plant for pollution con-
trol purposes generally is substantially in excess of the cost of
incorporating pollution control facilities into a new plant, the
committee has limited the scope of the amortization deduction
to facilities which have been added to existing plants. "
A similar thought is found in House Report 91-413. I think the intent was
generally to deny the rapid write-off where management installs new pro-
ductive facilities which meet applicable standards, and to grant the write-off
where it retrofits older productive facilities which would not otherwise meet
the standards. Congress presumed the latter would generally be more costly,
and therefore deserving of the de facto subsidy in Section 169. In addition,
several witnesses at the Senate hearings argued unsuccessfully for a change
in the statute to permit certification of cleaner processes (Statement of the
American Natural Gas Company, at page 4910 of the Senate hearings; state-
ment of Stroock & Stroock & Lavan, at page 6545).
I concede that we have already stretched the legislative history, in that our
regulations provide for partial certification of a facility which performs a
function in addition to pollution abatement. But the language of the statute
itself supports the position we took in that regard. And, had we taken that
position, we would have been driven to the absurd length of refusing to certify
a facility that was 99% devoted to waste removal.
In connection with the point you raise, on the other hand, I find it difficult to
end-run the legislative history. I also believe it would be unwise to do so. I
disagree that the allocation problem would be no more complicated than it
already is if we were to certify some portion of the cost of switching to a
"cleaner" process.
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There may be three alternative procedures which management could have cho-
sen at different costs, and I do not see how one can reasonably allocate some
portion of the chosen facility's cost to pollution abatement.
If a plant makes a process change, where does the "facility" begin and end?
Does it include all equipment purchased in connection with the cleaner pro-
cess and all incremental costs?
Must we certify something whenever management opts for a productive pro-
cess that is "cleaner" than any one of the existing alternatives ?
If you both remain unhappy, I might point out in conclusion that the foregoing
discussion is irrelevant whenever a taxpayer replaces more than 20% of his
productive facilities; under the Treasury regulations, he has a "new" plant,
and so cannot qualify for the rapid write-off anyway.
§§§§§§§
TITLE: Certification of Pollution Control Facilities Eligible for Accelerated
Amortization Under Section 169 of the Internal Revenue Code
DATE: May 19, 1971
1. GENERAL
Final EPA regulations governing certification of pollution control facilities,
both water and air, which qualify for favorable tax treatment under Section 169
of the Internal Revenue Code have just been published in the Federal Register.
You have received a copy of these regulations. They are complementary to
regulations recently published by the Treasury Department. The purpose of
this memorandum is to offer guidance in handling the many inquiries from in-
dustry which the Regional Offices will probably soon receive.
Section 704 of the Tax Reform Act of 1969, (P. L. 91-172, December 30,
1969), added a new Section 169, "Amortization of Pollution Control Facil-
ities", to the Internal Revenue Code. The new section provides for the
amortization of the cost of certified pollution control facilities over a sixty-
month period, if specific qualifying conditions are met.
The Act defines a "certified pollution control facility" as a "new identifi-
able treatment facility" which is:
(a) used in connection with a plant or other property in operation
before January 1, 1969 (that is, an "old" plant), to abate or con-
trol pollution by removing, altering, disposing or storing pollutants,
contaminants, wastes or heat;
(b) which is constructed, reconstructed, or erected by the taxpayer
after December 31, 1968; and
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(c) which is placed in service before January 1, 1975.
2. Policies reflected in the regulations. The Treasury Department's regu-
lations, as originally proposed, were generally restrictive, favoring admin-
istrative simplicity instead of encouraging the installation of pollution abate-
ment equipment. Such restrictiveness has been eliminated to a large degree.
You should be particularly aware of the following problem areas and of their
respective resolutions in the final regulations:
a. Multiple-pur pose facilities. While the statute defines a "certified pol-
lution control facility", it is silent as to whether a facility can qualify for
favorable tax treatment if it serves a function other than the abatement of
pollution. The final regulations make it clear that it canT Otherwise, the
effect might have been to discourage installation of sensible pollution
abatement facilities in favor of less efficient single-function facilities
which qualified for the deduction.
The thrust of the foregoing decision, however, is to place upon EPA the
burden of deciding what portion of a given facility's cost is properly allo-
cable to its abatement function. The regulations require the applying tax-
payer to make such an allocation in his application, and to justify his
grounds therefor. The function of the Regional Offices will be to review
those allocations on paper. It is not anticipated that on-site inspections
will be generally necessary or desirable for the purpose of such review,
except in cases involving large sums of money and unusual types of equip-
ment.
b. Facilities serving both old and new plants. As noted previously, the
statute requires that a pollution control facility must be used in connec-
tion with a plant or other property that was in operation prior to January
1, 1969. Several of the comments received on EPA regulations, as pre-
viously proposed, argued that a facility used in connection with pre-1969
properties as well as in connection with later ones, should qualify for
the deduction to the "extent it is used in connection with pre-1969 facilities.
The final regulations accept the reasoning of that argument.
Again, the taxpayer will submit his theory of the allocation of the cost of
the facility as between old and new plants or properties and the Regional
Offices will have to review the allocation. Such an allocation will result in
a percentage. We believe that the most appropriate method of making
such an allocation is to compare the capacity of the pre-1969 plant to
the capacity of the control facility. Assume, for example: the old plant
has a capacity of 80 units of effluent (but an average output of 60 units);
the new plant has a capacity of 60 units (but an average output of 20
units); and the control facility of 150 units. In such case, 80/150 of
the cost of control facility would be eligible for rapid amortization.
We have not chosen to make a binding rule of the foregoing however,
until some experience with the new regulations has been accumulated.
Should a taxpayer present a seemingly reasonable method of allocation
different from the foregoing, Regional Office personnel are invited to
consult with this office and with the Water Quality Office.
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c. Profit-making facilities. The statute denies favorable tax treatment
to facilities the cost of which will be recovered from, profits derived
through the recovery of waste, "or otherwise". The final regulations
reflect two decisions not expressly made by statute.
(!) Partial recovery of cost. If an abatement facility recovers mar-
ketable wastes, estimated profits on which are not sufficient to re-
cover the entire cost of the facility, the amortizable basis of the
facility will be reduced in accordance with the Treasury regulations.
The responsibility of the Regional Offices will be only to identify for
Treasury's benefit those cases in which estimated profits will in
fact arise; their amount, and the extent to which they can be expected
to result in cost recovery, will be determined by the Treasury Depart-
ment. Accordingly, the responsibility of the Regional Offices is, for
all practical purposes, only to notify the Treasury Department when
marketable by-products are recovered by the facility. Such noti-
fication will be included in EPA's form of certification.
(2) Leased facilities. The EPA regulations make it clear that a tax-
payer cannot qualify for rapid amortization under Section 169 if he
is in the business of storing, altering, or recovering pollution pro-
duced by others. In any such case, it is assumed that he will recover
the cost of his facilities through the fees he charges for their use.
The regulations, therefore, provide that EPA will not certify a facility
which is subject of a separate charge for its use.
3. Air pollution control facilities.
a. Pollution control or treatment facilities normally eligible for certifi-
cation.A new identifiable air pollution control and/or treatment facility
is a facility that is a part of, or associated with, the taxpayer's plant or
other property and which is used to abate or control air pollution by re-
moving, altering, disposing, or storing of pollutants, contaminants, or
wastes. Such a facility may include the following devices:
(1) Inertia! separators (cyclones, etc.)
(2) Wet collection devices (scrubbers)
(3) Electrostatic precipitators
(4) Cloth filter collectors (baghouses)
(5) Direct fired afterburners
(6) Catalytic afterburners
(7) Gas absorption equipment
(8) Gas adsorption equipment
(9) Vapor condensers
(10) Vapor recovery systems
(11) Floating roofs for storage tanks
(12) Combinations of the above
b Air pollution control facility boundaries. Most facilities are systems
consisting of several parts. The iaciiity need not start at the point
where the gaseous effluent leaves the last unit of processing equipment,
nor will it in all cases extend to the point where the effluent is emitted
to the atmosphere or existing stack, breeching, ductwork or vent. It
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includes all the auxiliary equipment used to operate the control system,
such as: fans, blowers, ductwork, valves, dampers, electrical equip-
ment, etc. It also includes all equipment used to handle, store, trans-
port, or dispose of the collected pollutant material.
c. Example of eligibility limits. The amortization deduction is limited
to any new identifiable treatment facility which removes, alters, or dis-
poses of contaminants or wastes. It is not available for all expenditures
for air pollution control and is limited to devices which actually remove,
destroy or store air pollutants.
(1) Boiler modifications or replacements. Modifications of boilers to
accommodate "cleaner fuels are not eligible for amortization: e. g.,
removal of stokers from a coal-fired boiler and the addition of gas or
oil burners. The purpose of the burners is to produce heat and they do
not qualify as air pollution control facilities. A new gas or oil fired
boiler that replaces a coal-fired boiler would also not be eligible.
(2) Fuel processing. Eligible air pollution control facilities do not
include pre-processing equipment which removes potential air pol-
lutants from fuels prior to their combustion. For example, a sulfur
recovery plant in a petroleum refinery where the desulfurized fuel
is burned in the refinery to produce heat would not be eligible, not
would a coal washing operation where the coal is sold to be'burned
elsewhere.
(3) Incinerators. The addition of an afterburner, secondary combus-
tion chamber or particulate collector would be eligible.
(4) Collection device used to collect product or process material.
In some manufacturing operations, collection devices are used to
collect product or process material and not for air pollution control.
Such would be the case in manufacturing carbon black. The baghouse
would be eligible for certification, but the certification would alert
the Treasury Department of the profitable waste recovery involved.
d. Replacement of manufacturing process by another non-polluting pro-
cess. An installation will not qualify for certification where it utilizes
a process known to be "cleaner" than an alternative, but where it does
not actually remove, alter or dispose of pollution; as, for example, a
minimally polluting electric induction furnace to melt cast iron which
replaces, or is installed instead of, a heavily polluting grey iron cupola
furnace. However, if the replacement equipment has an air pollution
control device added to it, the control device would be eligible while the
process device would not. For example, in the case where a primary
copper smelting reverberatory furnace is replaced by a flash smelting
furnace, followed by the installation of a contact sulfuric acid plant,
the sulfuric acid plant would qualify (since it is a control device not
necessary to the process), while the flash smelting furnace would not
qualify, as its purpose is to produce copper matte.
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4. Water pollution facilities.
a. Pollution control or treatment facilities normally eligible for certifi-
cation. A new identifiable water pollution control and/or trea-bnpnt fam'T
ity is a facility that is a part of, or associated with, the taxpayer's
plant or other property and which is used to abate or control water pol-
lution or contamination by removing, altering, disposing, or storing of
pollutants, contaminants, wastes or heat. The following examples of new
identifiable treatment facilities will be helpful:
(1) Included are pretreatment facilities such as those which neu-
tralize or stabilize industrial and/or sanitary waste, from a point
immediately preceding the point of such treatment to a point of dis-
posal to and acceptance by a metropolitan or a municipal waste
treatment facility for final treatment, including the necessary pump-
ing and transmitting facilities. Not eligible, however, is a waste
pre-treatment facility that will provide a degree of treatment less
than that necessary or required to provide an effluent that will comply
with established Federal, State and local effluent or water quality
standards, codes and/or regulations, and which is not included in
or a part of a final treatment system to provide an acceptable degree
of treatment meeting applicable standards.
(2) Included are treatment facilities such as those which neutralize
or stabilize in compliance with established Federal, State and local
effluent or water quality standards, industrial and/or sanitary waste,
from a point immediately preceding the point of such treatment to a
point of disposal, including the ancillary pumping and transmitting fa-
cilities.
(3) Included are ancillary devices and facilities such as lagoons,
ponds, and structures for the storage and/or treatment of waste -
waters or waste from a plant or other property.
(4) Included are devices, equipment or facilities constructed or in-
stalled for the primary purpose of recovering a by-product of the
operation (saleable or otherwise), previously lost either to the atmo-
sphere or to the waste effluent:
(a) A facility to concentrate and recover gaseous or vapor (HC1,
NHlj , P2 05 , Nitrogen or sulfur oxides, CO 2 , and CO3 , F,
etc.) by-products from a process stream for re-use as raw feed-
stock or for resale, unless the estimated profits from resale
exceed the cost of the facility. See paragraph 2(c)(l) above.
(b) A facility to concentrate and/or remove "gunk" or similar type
"tars" or polymerized tar-like materials from the process waste
effluent previously discharged in the plant effluents.
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(c) Devices used to extract or remove a soluble constituent from
a solid or liquid by use of a selective solvent: open or closed
tanks, vessels; diffusion batteries of tanks or vessels for coun-
tercurrent decoutation, extraction or leaching, etc.
(d) Skimmers or similar devices for the removal of greases, oils
and fat-like materials from effluent stream.
b. Examples of eligibility limits.
(1) Any device, equipment and/or facility which is associated with
or included in a disposal system for subsurface injection of untreated
or inadequately treated industrial or sanitary wastewaters or effluent
containing pollutants, contaminants or wastes will not be eligible.
(2) Any device, equipment and/or facility which is associated with,
included in, or a part of a system for the disposal of untreated or in-
adequately treated industrial or sanitary wastewaters or effluent con-
taining pollutants, contaminants or wastes by means of an outfall to a
lake, stream, estuary, the ocean, or a municipal treatment facility
will not be eligible.
(3) In-plant process changes which may prevent the production of
pollutants, contaminants, wastes, or heat, but which by themselves
cannot be said to remove, alter, dispose, or store pollutants, con-
taminants, wastes, or heat, will not be considered eligible for certi-
fication as a water pollution control facility.
5. Forms and Procedures.
The regulations themselves attempt to make clear how paperwork pertaining
to certification will flow. Application forms are presently being prepared
for certification of air and water pollution control facilities. These will be
cleared by the Office of Management and Budget, and the final version will
be furnished immediately to all Regional Offices.
Your attention is invited to the fact that certification by the cognizant state
agency is a prerequisite to federal certification. It is comtemplated that the
facts contained in the taxpayer's application, plus the certification from the
state agency, will form the basis for EPA certification. By heavily relying
on the state's certification, the administrative task of the Regional Offices
can and should be minimized. It is not contemplated that on-site inspection
will be necessary or desirable in the vast majority of cases. Exceptions
to the foregoing must of course depend on the exercise of sound judgment
by Regional Office personnel.
Of obvious relevance to the exercise of such judgment would be: the vol-
ume and toxicity of the discharge sought to be controlled by the facility in
question; the amount of money at stake; experience on the basis of which
it may be said that the certifying state agency is in fact ignoring obvious
violations of applicable water or air quality standards.
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Finally, it should be noted that certification of a facility does not constitute
the personal warranty of the certifying official that the conditions of the
statute have been met; as is the case with a ruling from the Internal Revenue
Service itself, EPA certification is only binding on the Government to the
extent the submitted facts are accurate and complete.
§§§§§§§
TITLE: Eligibility of Solid Waste Compaction Facilities for Rapid
Amortization Under section 169 of the I. R. C.
DATE: November 16, 1971
We have considered your memorandum of October 26, 1971, asking our opin-
ion as to the eligibility of solid waste compaction facilities for rapid amorti-
zation under section 169 of the Internal Revenue Code. Specifically, Metro-
politan Life asks for certification of its compactors installed as replacements
for incinerators in 122 apartment buildings in New York City.
We have concluded that such facilities are not eligible for rapid amorti-
zation, notwithstanding that their use may prevent air pollution which would
occur if the solid waste in question were incinerated. The question is a close
one and was resolved last spring only after exhaustive research and discus-
sion. We do not believe the Congress intended that facilities be certified
simply because they do not cause pollution that would be caused by the use
of a different process. For this reason, sections 2d and 3b(l) were in-
cluded in the guidelines published at 36 F. R. 19132 (September 29, 1971).
In taking this position, we were influenced by the fact that there is almost
always another, "cleaner" way of performing a particular step in a com-
merical process. As we read the legislative history of section 169, however,
it was not the intent of Congress to give the write-off to a facility whenever
its function might be performed by a different facility that creates more
pollution (or pollution of a different kind). To illustrate the complexities
that would arise were we to agree with the argument of Metropolitan Life,
we note that in the very case they raise, they would avoid the production of
air pollution whether or not they installed compaction facilities, as long
as they did not incinerate; if we accepted their argument, therefore, we
would also be required to certify the Dempster Dumpster, trucks, etc.,
that they used to handle the solid waste would otherwise be burned.
While we sympathize with the position of Metropolitan Life, we note in con-
clusion that the arguable unfairness to it and other companies similarly situ-
ated was pointed out to, and rejected by, the Congress. It has also been the
source of adverse commentary on section 169 in the academic literature.
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ANTI-TRUST
TITLE: Anti-trust Exemption for Pollution Control
DATE: November 5, 1971
We have considered the Commerce Department proposal contained in your
October 28 memorandum and have concluded that there is no need for legis-
lation authorizing waiver of antitrust laws to permit cooperative development
of pollution control technology.
The question at the heart of this matter is: Are efforts to control pollution
slowed by the dictates of the antitrust laws ? Our answer is that, with the
possible exception of automobile manufacturers, pollution control efforts are
not slowed - or, at least, not sufficiently to warrant any waiver.
We have failed to uncover any instance where it can be said with assurance
that cooperative research would accelerate the solution of pollution problems.
The one possible exception to this statement is the automobile industry,
which is probably sui generis because of unusually long manufacturing lead
tinte requirements"In the automobile industry, limited collaborative ar-
rangements have been-approved by the Justice Department pursuant to a con-
sent decree entered against the major United States manufacturers. At this
time, the process of ad hoc approval of limited arrangements under the
consent decree appears to provide an adequate legal basis for meeting the
industry's special problems.
With respect to other industries subject to environmental standards, com-
petition creates challenging incentives. This competition produces a desir-
able diversity in the assessment of business and engineering risks asso-
ciated with commercial application of scientific and technical knowledge.
Creation of a statutory procedure to allow collaborative arrangements
would, in our judgment, tend to diminish incentives and suppress diversity.
At the very least, we believe that the proponents of antitrust exemptions
must present the facts to support their proposals. Only then can serious
consideration be given to such a major adjustment in antitrust policy.
«WS. GOVERNMENT PRINTING OFFICE:1975 630-903/844 1-3 -62 0~
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