"Criteria for the Evaluation of
Candidate Mitigation Measures"
                                           c. massact             '>n. d.


"Criteria for the Evaluation of
Candidate Mitigation Measures"

CONTRACT NO.              68-01-4790
August 28, 1978
Prepared for:

Environmental Protection Agency
401 M Street, SW
Washington, DC  20460

Prepared by:

Urban Systems Research & Engineering, Inc.
1218 Massachusetts Avenue
Cambridge, Massachusetts  02138

Urban Systems Research & Engineering, Inc.
1218 Massachusetts Ave., Cambridge, Mass. 02138 (617) 661-1550

August 28, 1978
Mr. Jerry Kurtzweg
Transportation and Land Use Policy
Environmental Protection Agency - AW-445
Room 931 West
401 M Street, SW
Washington, DC  20460

Re:  "Criteria for the Evaluation of Candidate Mitigation

Dear Jerry:

Enclosed are twenty  (20) copies of the first deliverable required under
the scope of work of Contract No. 68-01-4790, "Procedural Guidelines
for Air Quality Assessments at Wastewater Treatment Facilities."  I
am also sending copies to several of the EPA Regional personnel who
have shown an interest in this project.

This deliverable spells out, in as much detail as possible, the criteria
we will use to evaluate mitigation measures for inclusion in the guide-
book to be produced under this contract.  I hope to meet with you as
soon as possible to hear your comments and reactions before actually
applying these criteria to the evaluation of those measures included  in
the second contract deliverable,  "Catalog of Candidate Mitigation

For your reference,  I am also including a copy of Peter Guldberg's
comments on the memos Tom McCurdy submitted to you on the use of the
GEMLUP model.

 Michael  R.  Alford
 Project  Director


                        TABLE OF CONTENTS




      2.1  Introduction 	  4

      2.2  Evaluation Procedure 	  6


      3.1  Introduction:  The Legal Context 	 13

      3.2  Legal Authority	15

      3.3  Form of Requirement	19

      3.4  Enforcement	20


      4.1  Introduction	22

      4.2  Evaluation Procedures	24


      5.1  Introduction	26

      5.2  Fiscal and Economic Impacts	26

      5.3  Political Feasibility	28

      5.4  Other Institutional Issues 	 29

      5.5  Social Impacts	30



     This is the first formal deliverable under Contract 68-01-4790
"Procedural Guidelines for Air Quality Assessments at Wastewater
Treatment Facilities."  Its purpose is to define criteria by
which the usefulness of various measures for_the mitigation of
secondary air quality impacts associated with wastewater projects
can be evaluated.  The original RFP listed five issues of
     o    Technical effectiveness;
     o    Implementability;
     o    Administrative Complexity;
     o    Social/economic costs and benefits;
     o    Enforceability.
     On the basis of what has been learned to date, we have re-
Organized these five concerns into four disciplinary or research
     o    Technical
     o    Legal
     o    Administrative
     o    Socio-economic
     This was done to facilitate distribution of the work to
our technical and legal consultants and also because certain of
the RFP's concerns — namely implementability, socio-economic,
and enforcement — have components that must be analyzed indepen-
dently and eventually be handled by different staffs in the field.
     Legal issues are to be evaluated in relation to three topic
areas of authority for implementation of a measure, the form in
which it is most effectively implemented, and methods by which
it might legally be enforced.  Technical issues are restricted
to the effectiveness of a measure in reducing air pollution and
the accuracy with which forecasting of reductions can be done.

Administrative issues involve all impacts of a measure on those
who must implement it:  the staff time and money required to
conduct necessary preliminary analysis, formulate and negotiate
its design, enforce it, and evaluate its effects.  Socio-economic
issues include the impacts of the measure on grantees and third
parties (all others) at all stages of its design and use.
     Table 1 outlines the four criteria areas, and arrays them
against categories of mitigation measures discussed in our
second report, which catalogues mitigation measures.  In our
research to date, we have discovered four basic types of mitiga-
tion approaches with distinctly different legal, technical,
administrative, and institutional contexts.
     The first three types are directly linked to the chain of
causality between changes in the construction of new wastewater
management facilities and changes in air quality:  Step one in
the chain is the construction of the facility itself; secondary
impacts hinge entirely on the ability of the facility to serve
additional population beyond jthji£^whlcji..is_ present in the commu-
nity on day one.  Step two is the arrival of new population,
and the development or redevelopment of land in the service area
to support it.  The operational link in the chafn~is~th-e-third
step, when, due  to increased vehicle use, the introduction of
new industry, etc., the_new population^ causes increased in air
pollution emissions that degrade air quality.  Mitigation mea-
sures therefore fall into three parallel groups:  those that
affect the plants ability to serve new population (namely sizing),
those that affect the pattern or timing with which_new population
and development will distribute itself, and those that place
performance controls on new development to reduce its air popula-
tion impacts.
     A fourth category of "mitigation" measure has also been
defined.  We put it in quotes here because it lies outside the
strict chain of causality that link project investment and air
quality changes:  some measure of interest to their contract do

not involve mitigation directly; they support it through aiding
in enforcement or evaluation.  There are not many of these, how-
ever.  Examples would include the New Hampshire method of distri-
buting state aid to wastewater facility, or the use of grant
monies to support local initiatives in air pollution monitoring.
     While we have not carried out the analysis of individual
mitigation measures, we have included on Table 1, some general
observations about the nature of the generic mitigation approaches
as they relate to the criteria for review.
     The rest of this deliverable is divided into four parts,
one for each of the criteria areas:  Section 2 discusses tech-
nical criteria; Section 3, legal criteria; Section 4, adminis-
trative criteria, and Section 5, institutional criteria.
     Application of the criteria will serve three purposes.
First, it will weed out any measures which should not be recom-
mended in the guidebook under any circumstances; we expect, how-
ever that very few if any will be deleted entirely.  Second, for
the measures that do have potential applicability  (most, if not
all of the candidate measures) it will specify when and where to
apply them, and how they should be modified and sharpened to im-
prove their performance.  Third and lastly, applying the criteria
to the candidate measures will reveal how part of the Guidebook's
content should be structured — what tests are necessary to
determine which mitigation measures are appropriate, what environ-
mental, social, institutional, or economic impacts should be
anticipated, and what enforcement techniques might be applied on
behalf of a given measure in a particular.

            SECTION 2



2.1  Introduction

     In order to define the technical effectiveness of a mitigation

measure, it is first necessary to understand the causal relation-

ships that lead to secondary impacts from construction and opera-

tion of a wastewater facility.  This sequence can be outlined

simply as Waste Facility—>-Land Use Change  (growth)—^-Air Pollu-

tion Emissions.  Emission sources are:

     o    residential complexes that appear along sewer
          lines;   ~~        '

     o    other service-oriented land uses  (commercial,
          industrial, office, government) that relate
          to residential development, arid

     o    motox—\teJbdcJLes used as transportation between
          developed areas.

     This view of secondary impacts allows  us to categorize mitiga-

tion measures into one of three categories:

     Mitigation Measure Category    Purpose of Mitigation Measures

                 1                  Limit the size, capacity, or
                                    usage of wastewater facilities

                 2                  Improve the efficiency of re-  .
                                    lated land use patterns or
                                    limit-jthe_ extent qf^-develop-

                 3                  Reduce_VMT, control emission
                                    rates of sources.. or~a-id
                                    removal/dispersion of emissions

     The fourth category of mitigation measures listed in Table 1

under "other" will not be evaluated for technical effectivenss,
since it includes such efforts as monitoring, participation of

grantees in regional planning efforts, and similar measures which

do not have a direct effect on air quality in themselves.

                                       TABLE 1

                             CRITERIA FOR EVALUATION OF
                               AIR QUALITY MITIGATION
                                   DIRECT MITIGATION
                                                                  I   I
  1)  Authority
  2)  Form
  3)  Enforcement
  1)  Demonstrated
  2)  Subjective
  3)  Accuracy of
  1)  Analysis
  2)  Specifications
  3)  Enforcement
  4)  Evaluation
  1)  Fiscal  &
  2)  Political
  3)  Other Institu-
       tional Issues
  4)  Social
               Land Use,
                             Air Pollution
More complex
                           ->• High


     A priori we might expect that mitigation measures applied
directly to the specifications of a new wastewater facility (re-
ductions in pipe sizes, shorter staging periods, etc.) will be
more positive in their effects than those applied indirectly to
growth or to new emissions sources several yearshenc"5r- While
the implementability of such measure is indeed more certain than
for the others, it does not follow that they have more positive
effects:  growth, for instance might proceed^using alternative
qn-site technologies funded 100% locally.  In fact, mitigation  I
measures that apply to growth itself or to new emissions sources
do, if implemented, have more easily predictable effects on air
quality, since they do not operate through such a long and un-
certain causal chain.
2.2  Evaluation Procedure
     Technical effectiveness may be defined objectively in terms
of percent reduction in air pollutant emissions, causally related
to a wastewater project, which will result from application of a
mitigation measure to the uncontrolled case.  This approach
assumes that:
     o    each mitigation measure is evaluated .
     o    the basis for evaluation is comparison
          with the "uncontrolled case" in which no
          mitigation measures are applied;
     o    costs and legal issues do not affect the
          estimate of technical effectiveness and are
          to be evaluated separately.
     The rules for estimating technical effectiveness are summa-
rized in the following procedure.
     STEP 1
     Assign the mitigation measure to one of the 3 mitigation
measure categories based on the description given in the previous
section.   (This has been done already in the second interim
project report, "Catalog of Proposed Mitigation Measures,")

     STEP 2

     Gather data on how the measure has been applied in the past

or on its expected performance when it is applied.  From the

data available, determine which of the following 4 bases for

objectively estimating effectiveness will be used (basis 3 is

better than 2, 2 is better than 1):

     Estimation Basis                     Description

            3               Experience - Measurements or estima-
                            tes of effectiveness are based on
                            actual application of the mitigation
                            measure sometime in the past.

            2               Research Opinion - Estimate of
                            effectiveness is based on research
                            reports in the literature that
                            address expected performance or
                            causal relationships  (e.g. the
                            GEMLUP-II model).

            1               Educated Guess - Estimate of effec-
                            tiveness is based on a series of
                            reasonable assumptions linking the
                            effect of the mitigation measure
                            on human behavior to air pollutant
                            emission rates.

            0               No Data - No data are available to
                            even make an educated guess.

     STEP 3

     If the Estimation Basis is 0, skip to Step 4.  Estimate the

percent reduction in air pollutant emissions associated with a

wastewater facility as follows:

     Technical Effectiveness Category 3

     The greatest impact on air quality from new wastewater

facilities is likely to be increased mobile source emissions

(CO, NO , NMHC) arising from greater VMT serving new land use

developments.   Thus, mitigation measures in this category will
be primarily motor vehicle oriented, e.g., measures to reduce
VMT through carpooling^__pub-l-are~teEaiisportation and measures to
reduce emissions such as inspection/maintenance.  Since motor
vehicle emissions are determined by the product of VMT and
characteristic emission rates, any percent reduction in VMT
passes directly through to an identical reduction in emissions.
The only exceptions are if a measure significantly changes the
light duty/heavy duty vehicle mix or average network speeds.
These factors maintain a complex relationship with emissions and
specific calculations using equations from an EPA publication
would be required.  Other mitigation measures that involve direct
emission controls on stationary and fugitive sources for S02 and
TSP are generally associated with a known percent reduction
     One further means of mitigation is the planning of open
space to act as a sink for various air pollutants.  For example,
use of open space next to a roadway reduces ambient levels of
motor vehicles pollutants downwind by both filtering out particles
and gases and serving as a buffer/ventilation zone to aid disper-
sion.  Since the effectiveness of open space planning is deter-
mined by the design employed, specific calculations using data
from EPA  is required.
      Guldberg, P. and D'Agostino, R., Growth Effects of Major
Land Use Projects  (Wastewater Facilities); Volumes 1 and II,
EPA-450/3-78-014a and b, Research Triangle Park, NC, March 1978.
      Office of Transportation and Land Use Policy, Mobile Source
Emission Factors, EPA-400/9-78-005, Washington, DC, March 1978.
      Cornsis Corporation, Open Space As An Air Resource Manage-
ment Measures, Volumes 1 and II, EPA-450/3-76-028a and b,
Research Triangle Park, NC, December  1976.

     Technical Effectiveness Category 2
     VMT can be estimated by the product of land use development,
trip generation rates, and trip lengths,
                             Trip Rate..Land Use.  I Trip Length.
          i = trip type  (work, other)
          j = land use category  (residential, commercial, etc.)
Since total land use is generally proportional to VMT, mitigation
measures that limit the extent of all development in an area
will produce an identical reduction in motor vehicle emissions.
If a measure limits only certain categories of development, a
different mix of land use will result.  The resultant impact on
air pollutant emissions will no longer be simple and proportional
calculations using the trip generation rates given in Table 2-6
of Volume II of GEMLUP  will be necessary.
     Mitigation measures that improve the efficiency of land
use patterns (e.g., cluster housing, PUDs, integrated local/
regional land use plans) will reduce emissions in three ways.
First by jredji^ jng-^fehp— number of trips per dwelling unit.  Data
from the GEMLUP-II case studies  indicates 1) an average of 53%
of all trips are related to residential land use, and 2) , that
total residential based trip rates decrease from 21 to 44% when
multiple family instead of single family detached housing is
built.  This range corresponds to everything from duplexes (21%)
up to large, high rise structures (44%) .  These data can be used
in conjunction with the percent of new housing that a measure
will convery to multi-family to estimate the .-percent reduction

in emissions.  The second effect is to reduce the length of the
average trip by planning the infra-structure of a community for
shorter travel distances.  Since trip length is generally pro-
portional to VMT, reductions in the average distance between
development areas will translate directly to reductions in
emissions.  If a measure only affects residential land use, then
shorter trip lengths will only occur on home-based trip.  Data
from the GEMLUP-II case studies indicates an average of 53% of
all trips are home-based.  The third effect is less significant
and involves reducing the pollutants emitted for space heating
of dwelling units.  Construction of high-density units can reduce
per unit emissions by up to 55%.
     Technical Effectiveness Category 1
     Mitigation measures in this category limit the available
capacity of a wastewater facility either directly through desman
of the plant or indirectly through limitations on hookup to the
                                 .	'	~)
system.  The net effect is the same — to^l-imit^ayailable, unused
capacity.  The statistical model developed in the GEMLUP-II
study  indicates that it is reserve capacity in the collection
network of a wastewater facility which is the most significant
causal factor for induced land use growth, principally in the
residential and manufacturing categories.  In addition, treat-
ment plant capacity was found not to be an important causal
factor.  The variable RECAPI in the GEMLUP-II model measures the
percent of reserve capacity of the collection system in the yeari
of construction  (defined as unused capacity in mgd divided by   J
     ygar peak flow in mgd) .  The variable RESERVE, measuring
      Real Estate Research Corp., The Costs of Sprawl, prepared
for the Council on Environmental Quality, Washington, DC, April

the percent of total capacity which, is unused and available, can
be computed from RECAPI as follows:

                RESERVE = RECAPI/(RECAPI+100)
A one standard deviation changed in RECAPI translated to an
increase/decrease in available, unused collection capacity of
18.7%.  The GEMLUP-II path analytic model  specifies that this
amount of change in RECAPI produces a 23.2% increase/decrease
in residential dwelling units 10 years later (the variable RES),

    (Net Causal Effect \  ^   /Standard Deviation\  ^  /Mean of \
    From RECAPI to RESJ      I       of RES       1     1   RES   I
    = 0.34 * 5945 T 8714 = 23.2%

Since residential land use is directly related to vehicle trips
and total VMT, it can be deduced that an 18.7% increase in-
available, unused collection capacity affects a jj.2% increase
in air pollutant emissions.  Or equivalently, a 10% increase
in capacity leads to a 12.4% increase in emissions.  This rela-
tionship can thus be used to estimate the percent reduction in
emissions associated with mitigation measures in this category.
    For example, if a wastewater collection network is planned
for expansion from 10 to 25 mgd and base year peak flow is
estimated to be 8mgd then,

    RESERVE = (25 - 8)/25 = 68% of capacity would be unused
                            and available
    If the design of the plant is later scaled down to 20 mgd,
                 RESERVE =  (20 - 8)/20 = 60%

    The decrease in available,  unused capacity due to redesign

                            .  u.8%
Thus, the reduction in emissions associated with the redesign

           11.8% X 1.24 = 14.6% reduction in emissions

    STEP 4
    Summarize the results for each mitigation measure in terms
of percent reduction in air pollutant emissions (if data are
availabe to estimate).  Otherwise, provide a subjective estimate
of its effectivevess based on other available information or
professional judgment.

           SECTION 3


     Every mitigation measure—whether it focuses on technical
design or configuration, staging of construction, SIP planning,
transportation management, land use controls, or other regulatory
provisions—will be tested by applying to it a number of legal
     o    Is EPA authorized by law to insist on the   I
     o    Is the grant applicant or another party
          authorized by law to promise and to under-
          take implementation of the measure?
     o    In what form should the undertaking be
          expressed, and what are the legal implica-
          tions of using one or another form?
     o    In order to guard against actual or threatened \
          failure to implement the measure, what reme-   I
          dial enforcement powers may EPA exercise?
     These issues constitute the major legal dimensions of assess-
ment for purposes of this project.
3.1  Introduction:  The Legal Context
     From a legal point of vi^w, the construction grant agreement
between EPA and the public management entity, together with an-
cillary promises or representations, will in most instances be
the critical focal point for programming mitigation measures.
The vehicle for dispensing Title II funds is called a "grant",
but in point of law the relationship between the parties is more
contractual than donative in nature, arid the extensive body of
law concerning federal contracts for subsidization of public
works will accordingly apply.  Federal agencies enjoy broad but
not unlimited Constitutional powers to condition monetary grants
upon undertakings by the grantee that go beyond the direct or
immediate purpose for which the money is awarded.  See, e.g.,
"The Federal Conditional Spending Power," 70 Northwestern Univ.

L.  Rev.  293 (1975).   This body of law may indicate outer limits
on EPA's power to demand and enforce mitigation measure.  While
we do not expect this issue to be of great prominence in this
project, it could be significant in evaluation planning—related
mitigation measures.  For instance, a grant condition requiring  I    '
the use of cluster zoning might be interpreted as an unwarranted I
override of local choice.
     A related question of Constitutional significance is    \ .
whether a federal agency may impose enforceable requirements
upon state or local governmental agencies to exercise their
regulatory powers or to commit their resources in furtherance 1
of a federal program.  EPA itself backed down from placing
this question properly before the Supreme Court for a definitive
holding on the enforceability of CAA/SIPs promulgated by EPA.
See EPA v. Brown, 431 U.S. 99 (1977), and cases cited therein.
The question has been answered in the negative by three out of
four circuit courts, but it remains for further legal research h
whether an affirmative answer would be given in the context
of grant agreements.
     For most mitigation measures, however, the principal sources
of legal evaluation will not be Constitutional law but federal
statutory law:
     o    The Clean Air Act, especially  § 316  ^^
          (conditioning mitigation measures on ^^
          absence of approved and adequate SIPs))v
          and §110(a)(5)  (posing possibility^of
          viewing sewage treatment facilities as
          indirect sources of air pollution).
     o    The Federal Water Pollution Control Act,
          especially  § 208  (requiring comprehensive
          impact assessments for 20-year regional
          wastewater management plants), and  § 204
          (a)(5) (conditioning eligible reserve
          capacity on defensible population esti-
          mates) .
     o    The National Environmental Policy Act,
          interpreted by the courts as being not
          merely an environmental full-disclosure

          law, but a law imposing on federal
          agencies the substantive obligation, in
          decision-making, to weigh environmental
          factors and to minimize environmental
          harm.  See, e.g., Conservation Council
          v. Froehlke, 473 F.2d 664 (4th Cir. 1973).
     Each of these laws has been interpreted and elaborated by
regulations of EPA, to which detailed reference will also have
to be made in assessing mitigation measures.  It is a familiar
principle of administrative law that an agency must observe its
own duly adopted regulations, which structure and constrain the
exercise of administrative discretion.
     These, then, are the major sources of Constitutional, statu-
tory, judicial and regulatory law by which issues of legal
authority, form and enforceability will have to be decided in
connection with particular mitigation measures.
3.2  Legal Authority
     There are two sources of law to which reference can nearly
always be made in tracing EPA's authority to demand a mitigation
measure as a condition for awarding a construction grant}
Constitutional principles of federal grant law, as evolved mainly
by the courts, and the overall mandates of NEPA with reference
to major federal actions affecting the quality of the environ-
ment.  In addition, it will be useful to construct a preliminary
correlation of types of mitigation measures with more specific
sources of legal authority:
     Principal Authority               Type of Measure
     FWPCA § § 204 (a)(5) and      Change in design, configuration
     212(2)(c); 40 CFR Pt.       or staging of project, so as to
     35 Subpt. E, as amended.    avoid excessive capacity.
     Ditto; also FWPCA  §208     Change in configuration to avoid
     and 40 CFR Pts. 130-131.    "hot spots" from localized

     FWPCA  §§ 201 (g) (.2) (A)
     and 208; 40 CFR Pts.
     .130-131, especially
     FWPCA  §208(b)(2)(c)
     (ii) in light of (b)
     (2) (E)

     FWPCA § 208 generally;
     40 CFR §130.34(a)(2)
     (iii) and  § 130.10  (3)
     Same provisions of 40
     CAA  §  110(a) (5)
Prior completion and approval
of relevant portions of 208
plans that take air quality
impacts into account, and con-
sistency of project with such

Commitment to regulate sewer  j
connections to meet, in part,
emission density limitations.
     CAA  § 316
Commitment to implement trans-  ]
portation control strategies,   \
such as public transit provision!
other VMT reduction, I&M program^

Commitment to divulge informa-
tion and plans to SIP planners,
and to engage fully in SIP
revision process.
Commitment to adopt mitigation
measures to keep air pollution
induced by indirect source
from thwarting attainment of
air quality standards.

No_particular commitment, when
S*tate nas in effect
                                 carrying Out gn~adeauate SIP.
     Numerous questions may have to be addressed concerning the

meaning and application of these legal authorities.  For example,

does CAA  § 316(b) constitute an independent source of authority
to condition construction—grants on mitigating measures, or does

it only serve to restrict the exercise of such authority, which
is presumably to be found in some other source?  Section 316(c)
preserves the applicability of NEPA to construction grants.
Does this mean that NEPA can be used to justify stricter mitiga-]

tion measures than even an approved SIP for a PSD area might
require?  We will review the Senate, House, and conference reports

on the Clean Air Act amendments and, if necessary, will go back
to transcripts of the Congressional hearings to define, as
closely as possible, how Congress intended §316 to adjust water

and air planning to each other.  For instance, the section as

written appears not to have resolved the question of what power

the administrator may hav^ to impose grant conditions on 201

projects if he decides that the approved SIP does not meet the

full requirements of  § 316.
 ••• ™
     Another range of issues concerns the degree of discretion
still left for EPA -to exercise, under the new Cost-Effectiveness

Analysis Guidelines, 40 CFR Pt. 35 Subpt. E App. A, in deterrain-|

ing how much reserve capacity it will allow in any particular

project.  The formalities of choosing, disaggregating and appro-
ving population projections, set forth in Appendix A, would seem

to indicate that EPA has no right to demand the use of different
projections.  The provisions for staging of treatment plants and
interceptors are also quite specific.  On the other hand, some

room for discretionary decision-making does appear on the follow-

ing points:

     o    EPA can decline to fund any portion of a
          project that proposes to include additional
          capacity beyond^ thedetermined cost-effective
          capacity, or may decide to limit federal tund-
          ing to not more than would have been allowed
          if the project had not included such excessive
          capacity.    § 10.

     o    A staging period of upto 40 rather than 20
          years may be used for sizing interceptors,
          if the grantee can demonstrate that the
          longer period would reduce secondary effects
          on air quality (as, e.g., by taking pressure
          off a "hot spot" that would otherwise occur
          somewhere else).  Might not EPA demand, on
          its own initiative, that a grantee consider
          this possibility?   §8f(2).

     o    A muncipality may stage construction of a
          treatment plant for a shorter period than the
          designated maximum, in order to control ad-
          verse secondary impacts.  Might not EPA
          demand, on its own initiative, that such a
          shorter period be used?    §8e(2).

     o    Where extension of an interceptor through
          environmentally sensitive areas is necessary
          to interconnect two or more communities, the

          grantee must reassess the need for it, ana-     ^
          lyze its secondary environmental impacts, and
          provide for "appropriate mitigating measures."
          It will ultimately lie within EPA's discretion
          to determine whether such interceptors are
          needed and what mitigating measures will satisfy
          the purpose of this provision.   §8f(l).
     o    No precise numerical guidelines are set forth
          for disagcjregating_gstimates of substate
          regional populations among the service areas
          of particular facilities for which 201 grants
          will be sought.  Accordingly, EPA may have
          retained some discretion to decide that a
          populatiojL-fisjtimate for a particular project
          area is too high or too low.
     On the other side of the grant agreement, it will be necessary
to determine whether the grantee or other promisor has the legal
authority and capacity to carry out any specified mitigation
measure.  Municipalities and districts derive their legal powers
from provisions of State constitutions, enactments of State
legislatures, and local government charters, all as interpreted
ultimately by State courts.  It will not be possible, in the
course of this study, to trace all the relevant ways in which
these delegations of power may vary from one State to the next.
Rather, judicial case law will be searched for instances where"
a local government was held to lack the necessary legal power
to implement mitigating measures, and a checklist will be formu-
lated of questions to be answered by all contracting beneficiaries
as evidence of their legal capacities.
     Supporting legal research will also be undertaken on the
guestion whether, under the Supremacy Clause of the Constitution,
a grant agreement with the Federal Government may empower a munici-
pal grantee to pursue mitigation measures for which State law
alone furnishes no authority.  Cases under the Federal power act
have raised the issue of whether Federal grant law makes the
conditions of Federal grants supreme, particularly in areas where
state authority is silent on an issue, but conceivably extending
to circumstances where Federal and state laws are in conflict.
This issue is an important one for our purposes.

3.3  Form of Requirement
     The legal formalities of the contracting process may be of
critical significance in determining both the authority to under-
take a mitigating measure and its enforceability.
     For example, if the undertaking is not written down, or if
it appears only in a letter from some local official to which the
grant agreement makes no reference, it may not be a legally en-
forceable undertaking.  Nor will it be enforceable if the promise
is formulated in such a way as to require action beyond the power
of the promissor himself to take.  A local board of sewer commis-
sioners might promise, for example, to lay a proposal for emission
density zoning J3g^£ore the city council, but could hardly guarantee
that it will be adopted.  Moreover, even assurances given by city
councillors or executives may be of only symbolic effect, since
they usually have no authority to make binding commitments on
behalf of their successors.  See, e.g. NRDC v. EPA, 478 F.2d 875
(1st Cir. 1973), 5 ERC 891.  The ideal solution might be to re-
quire proof that the necessary local ordinance has already been
adopted, before concluding the construction grant agreement.  Such
an insistence might, however, unduly delay the 201 program.  A
suitable fall-back position might be to require 1), that the under-
taking to mitigate be clearly spelled out in the grant agreement
itself, and 2), that the parties signatory to the agreement include
all agencies responsible for implementing the mitigating measures.
But this approach also raises problems, especially where an
essential part is not also going to be a beneficiary of the treat-
ment services to be provided by the project.
     The foregoing analysis is intended merely to illustrate, in
a preliminary way, the importance of legal form as a criterion
for assessing any proposed mitigation measure.  In fact, the
measure to be undertaken must be defined by one or another
formulation.  Different measures may call for different forms,
and the forms may also vary according to whether EPA can and will

insist on a fully enforceable agreement, as well as according to
the manner in which it might be enforced (.discussed further below
in 3.4).
     Special difficulties may arise in cases where it is not
appropriate to tie mitigating measures to single grant agreements,
but where those measures should be undertaken on a broader scale
with reference to a number of 201 projects constituting the waste-
water management program for an entire metropolitan area.  Colla-
teral agreements might be one way of dealing with this problem.
These would be separate agreements between EPA and one or more
grantees (or even non-grantees who are interested parties to the
grant agreement) in which the parties^-concerned agree to mitiga-
tion strategies.  They would be entered into concurrently with
one or more construction grant agreements, but would free the
timing and scope of a mitigation strategy from any direct link
with a particular grant.  Finally, the mitigation program might
be divided into stages that are geared to the prospective sequence
of grant agreements.  These and other possible solutions will
be carefully explored.
3.4  Enforcement
     There are at least two major techniques that EPA could employ
to correct actual or threatened failures to^carrv out the contem-
plated mitigation measures after a construction  grant has been
     o    Sue for breach of contract, with a demand
          for specific performance or for return of
          the grant money.
     o    Withhold^further construction grants,
          either for succeeding steps of the same
          project or for succeeding projects, until
          such time as the violation has been corrected.
     The-aecond^of these methods might well be preferred, for a
number of reasons:  The expenses and delays of litigation, the
political sensitivity of suits by the Federal Government against

municipalities, the ease of simply withholding further funds.
Moreover, if the formal sequencing of grants is geared to the
progress and maintenance of mitigation^ measures, as_the_second
enforcement method contemplates, it may not matter much,.whether
those measures are incorporated in strictly enfgrceable_^orm_into-
the grant ageements themselves.
     For purposes of the present study, enforceability and modes
of enforcement will be considered as they bear upon the choice,
the formulation, and the sequencing of mitigation measures as
conditions to the award of one or more construction grants.

        SECTION 4


4.1  Introduction
     The 201 grants process is administered either by the
Regional offices, or in various degrees of cooperation with the
states.  In all cases, however, NEPA responsibility remains with
EPA.  The focus of the administrative criteria for the review
of air quality mitigation measures is on the NEPA process, and
how it relates to the administration of 201—whether that admin-
istration is primarily a state or federal function.
     The prime emphasis of the administrative evaluation criteria
should be in assessing the burden each places on the 201 program
in terms of staff time and other .resources that may have to be
committed to analyze, implement, enforce, and evaluate mitigation
     Various degrees of analysis must be undertaken in order for
a mitigation measure to be selected and specified.  A certain
part of the analysis will be conducted directly as part of the
NEPA evaluations of a given grant project, and will follow proce-
dures that are to be developed under Task 3 of this project, the
Guidebook design task.  An additional margin of analysis will,
however, be required to determine, for instance, how much capacity
must be subtracted from a given facility to achieve forecasted
results, how a project ought to be staged, or how a sewer tap
allocation program might be designed.  The staff time and other
resources* spent in such analysis must be considered explicitly
in  an evaluation of a mitigation measure.
     *Computer time, travel costs to site, etc.

     Staff resources must also be allocated to negotiate a parti-
cular measure's implementation with the grantee.  Where a measure
involves compliance by third parties (the general purpose govern-
ment, for instance, if the grant is to go to a special purpose
district), we would expect increased costs of implementation.
Also to be included in this stage of the evaluation are legal
costs of specifying grant conditions in the most appropriate
(enforceable) form.  Measures associated with the design of the
facility itself will probably be easier to administrate than
those that require the development and acceptance of grant con-
     Enforcement is critical to any mitigation measure's success,
but we recognize that, to date, enforcement of grant conditions
has generally ranged from minimal to non-existant.  Administra-
tive costs for enforcing a mitigation measure therefore cannot
be considered cut and dried, but general estimates of what would
be involved and necessary.  For each mitigation measure, potential
enforcement problems will have to be anticipated and the appro-
priate administrative response specified.  Burdens on the admin-
istrator could then be characterized in general terms with regard
to staff time (light to heavy), legal consultation (none to sub-
stantial) , coordination requirements within and outside of EPA
(none to substantial), etc.
     Questions as to whether or not a given measure is, in fact,
legally enforceable^wtth be evaluated separately, as discussed
in Section 3 above.  Measures that have to do with facility design
will, by definition, be enforced once the plant is constructed;
enforcement will be a significant issue only for categories 2-4.
     Another criterion that might be considered under administra-
tion is that of evaluating the performance of a given mitigation

measure after it is implemented and enforced.  This  evaluation  is,
of course, optional, but we  feel it is appropriate to consider
evaluation as one of the criteria  for reviewing potential measures.
Evaluation needs would have  to be  specified for each measure.
They would include one or more of  the following:
     o    monitoring of air_quality;
                  '    * ' '  "-
the design of the plant; other measures, in categories 2-4, can
be expected to pose somewhat fewer analytical burdens wherever
use of forecasting models  (such as GEMLUP) is not required, but
overall the level of analysis effort is expected to be variable.
     Following the legal evaluation, information will be available
on the level of effort required for drawing up necessary contract
documents, going through specified enforcement procedures and
negotiating both with all parties involved.  Measures associated
with the design of the facility itself  (category 1) can be ex-
pected to^jaose the fewest administrative burdens.
     Independent Evaluations
     The greater part of the administrative evaluation of mitiga-
tion measures will be to review literature, make further telephone
contacts, and independently assess the administrative requirements
for analyzing, implementing, enforcing, and evaluating each miti-
gation measure.  For each measure, we will seek specific findings
on administrative variations according to:
     o    EPA Region, State;
     o    type of grantee  (single purpose vs. general
          purpose government);
     o    who conducts the 201 program  (EPA or state);
     o    whether or not third parties are involved in
          the measure's implementation, enforcement,
          or evaluation;
     o    other administrative context  (whether grantee
          is in noja=-a-fefcainmen.t_a5ea, E§D__area, or other
          district which may pose coordination regulga-
          ments on the implementation or enforcement
          of a measure.)

       SECTION 5


5.1  Introduction
     Socio-economic impact assessment covers a wide and loose
array of issues.  The focus of our review of candidate mitigation
measures will be on three groups of socio-economic impacts—
grou.RS^_whichL_seein most critical to successful  implementation
and enforcement of various measures and whose analysis is feasible
within the resource and time constraints of this project.  The
groups are:
     o    Fiscal and economic impacts
     o    Political feasibility
     o    Institutional issues
     o    Social impacts
     Since socio-economic impact analysis can be complex and
open-ended, the focus here should be on practical issues.  Our
concerns here are roughly the obverse of those considered under
Administration:  the assessment should focus on the obligations
and responsibilities of those outside EPA—the grantees them-
selves, their related governments, interested third parties
(neighboring grovernments, business, other agencies and decision-
making bodies not involved in 201 grants), and the affected
communities at  large.
     Under a concurrent EPA-sponsored study, Development of an
Approach for Estimating and Ranking Socio-economic Effects of
Alternative Water Quality Management Strategies, USR&E is research
ing most of the same issues that are of concern here.  We have
drawn upon that study for guidance.
5.2  Fiscal and Economic  Impacts
     There are  two general areas of concern here which we feel
are appropriate to use as evaluation criteria:
     o    Direct costs of implementation;

     o    Impacts on public revenues and expenditures.
     Costs of Implementation
     For some measures, such as adjustments to the wastewater
facility's design (category 1 measures)  local costs of implementa-
tion will be small or non-existent.  For measures affecting land
use and growth (category 2), implementation costs will be higher—
they could include staff costs for designing ancTadminTstering
a sewer tap allocation plan, costs for writing and enforcing new
ordinances, etc.   Measures  that focus on controlling emissions
directly  (category 3) could involve these costs plus expenditures
for equipment and monitoring^  Costs of implementatiorPwiii
clearly vary from community to community.  We, therefore, will
not be able to go into much, quantitative detail on costs, but
will seek to identify and describe cost categories  (staff, legal
consultation, other direct costs), with anecdotal data concerning
past implementation taken into account as appropriate.
     Impacts on Public Revenues and Expenditures
     Impacts on public revenues will arise primarily out of the
effect a given measure exerts on the timing and extent of commun-
ity growth.  Thus, they will be associated mainly with category 1
and category 2 measures; category  3 measures, which regulate
emissions sources directly, are not expected to tie in directly
with the main sources of municipal revenues.  To be considered
     o    Property Tax Revenues; Measures which
          curtail growth will usually tend to diminish
          property tax revenues, although they may
          have either a positive or negative effect
          on property values.  The intervening variable
          of property value must be singled out for
          analysis in addition to  the measure' impacts
          on gross receipts.  With the CWA 1977 amend-
          ments, the property tax  increases in importance,
          since  it can only be used for O&M and capital
          amoritization costs.

     o    Sales Tax Revenues; This source is also
          contingent on population growth, but it
          also is affected by any constraints
          that might affect residential and
          commercial land use independently.
     o    Connection Costs and User Fees;  The issue
          here is not the ability of the community to
          meet its obligations, since all these costs
          are recoverable under the regulations, but
          rather the incidence of these costs on the
          community itself.  Downsized systems will
          often tend to have higher per capita costs
          for connection and use than the original
          design, due to economies of scale.
     These other measures that will be evaluated under category 4
which includes such approaches as New Hampshire' s system of allo-
cating state assistance monies on an annual rather than a lump-
sum basis, may also have indirect fiscal and economic  effects.
If a community cannot guarantee its bondholders all payments of
principal and interest when due because of a possible cut-off
of federal grant participation associated with a grant condition,
it may have difficulty finding buyers, which would in turn push
interest rates up.
     Other indirect costs associated with a mitigation measure,
such as multiplier impacts through local firms and business,
probably cannot be evaluated competently within the time and
budget constraints of this phase of the project.  Anecdotal
information in this area will be taken into account, however.
5.3  Political Feasibility
     Some measures may be politically feasible under all condi-
tions.  For instance, most category 1 measures  (modifications
to the wastewater facility itself) can be specified unilaterally
and are virtually self-enforcing.  For other measures, however,
political feasibility will be critical.  Some may be feasible
only where the grantee is a general purpose government, or where
the enforcement of the measure will be complete within the admin-
istration under which it is negotiated.  There  is no rigorous


method by which political feasibility, important as it is, can
be evaluated systematically.  The analysis will have to rely

heavily on past experience with a measure, or on suppositions

or comparisons.  Evaluation will hinge on the following issues:
     o    the degree to which the problem being
          resolved is perceived by the community
          as sufficiently important to do something

     o    the extent to which the measure conforms
          to local traditions and attitudes

     o    the extent to which the measure is perceived
          as having a high priority relative to other
          governmental activities

     o    the extent to which citizens have an appro-
          priate  input into  the choice, design, and
          administration of  the measure

     o    the extent to which the measure has sufficient
          visibility and direction to indicate that
          something is beong done about the problem

     o    the likelihood that the measure will receive
          voluntary compliance

     o    the extent to which implementation of one
          approach will foreclose opportunity for
          action in other areas Ce.g. will implementa-
          tion require diversion of public or private
          resources which will prevent the achievement
          of other more pressing public objectives

5.4  Other Institutional Issues

     The most critical institutional issue (determining if the
grantee has the authority to carry out the measure)  is a legal
one, and its analysis is covered above.   Other institutional
issues can also be highly important, however,  and concern both

the design of local institutions in relation to how the measure
must be carried out, as well as coordination between all institu-

tions involved.
     In relation to each mitigation measure,  the following

questions must be analyzed,  in terms as specific as possible to


the various types of grantees likely to be called upon to imple-

ment a particular measure:

     o    For each measure, are functions clearly
          defined and assigned; is the chain of
          command clear?

     o    Is there overlap or fragmentation of respon-
          sibilities between levels of government
          or among agencies?

     o    What is the minimum level of resources
          necessary to implement the measure, and
          how are they measured?

     o    Is there adequate coordination between
          related programs and agencies?

5.5  Social Impacts

     Social impacts associated with various mitigation measures

will be generally beyond the scope of the evaluation criteria,
but we intend to note any mention of impacts in the following areas:

if they are found:

     o    land use and housing

     o    public services

     o    recreational activities

     o    historic and cultural resources

     o    sensory quality  (visual quality, noise,
          odor, etc.)

     o    quality of life

     o    public health and safety

     We doubt that any measure will be eliminated from considera-

on grounds related to these areas, but it will be important
to discover if any of the mitigation measures have important

side effects which will have to be evaluated on a case by case
basis before the measure can be implemented in a particular