PB-235 331
EPA AUTHORITY AFFECTING LAND USE
Ross, Hardies, O'Keefe, Babcock and Parsons
Prepared for
Environmental Protection Agency
12 March 1974
DISTRIBUTED BY:
Knn
National Technical Information Service
U. S. DEPARTMENT OF COMMERCE
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2or
PHIC DATA
BICLIO
SHEET
4. Title and Subtitle
1. Report No.
£ pft
2.
-EEiL_Region VIII LIBF
DePcBColrSS"
331
EPA Authority Affecting Land Use
5. Report Date
March 12, 1974
7. Authors)
8. Performing Organization Rept.
No.
9. Performing Organization Name and Address
Fred P. Bosselman
Duane A. Feurer
David L. Callies
Ross Hardies, O'Keefe, Babock^
Parsons, One IBM Plaza, Suite
3100 Chicago, 111. 60611
10. Projecc/Task/Work Unit No.
BOA 68-01-1560
11. Contract/Grant No.
12. Sponsoring Organization Name and Address
Office of Planning & Evaluation
Environmental Protection Agency
401 M Street, SW
Washington,—D .C 20dfifl
13# Type of Report & Period
Covered
Final Report
14.
IS. Supplementary Notes
16. Abstracts This study examines existing UFA statutory aftd regulatory author 1
ty
which involve land use requirements or implications. There is a direct
relationship between land use control measures and environmental impacts
Many pollution problems can be prevented by implementing iand ttae control
with proper consideration of environmental impact. The study is^ designed
tothighlight issues which confront EPA regulatory efforts. It ^cAudes an
analysis of land use impact of programs implemented under the Clean Air
Act, the Marine Protection Research and Sanctuaries Act, the Noise Control
Act, and the Solid Waste Disposal Act. Those authorities are set forth in
context of influenc^land use making process. The discussion emphasiz
fce and local responsibility. The study concludes with a section on
.ating methods to coordinate agency programs having significant implica
tion for land use decisions including NEPA, the A-95 clearinghouse proces
and the IGA program (Integrated Grants Administration).
^s
5/
17. Key Words and Document Analysis. 17o. Descriptors
Land Use Control
Environmental Legislation
Environmental Protection Agency
17b. ldentifiers/Open-Ended Terms
PRICES SUBJECT TO CHANGE
17c. COSATI Field/Group
Reproduced by
NATIONAL TECHNICAL
INFORMATION SERVICE
U S Department of Commerce
Springfield VA 22151
18. Availability Statement
Release unlimited
19.. Security Class (This |21. No. of Pages
Report)
UNCLASSIFIED
20. Security Class (This
Page
UNCLASSIFIED
FORM NTIS-99 IREV. 3-721
USCOMM-OC I4932-P72
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EPA AUTHORITY AFFECTING LAND USE
PREPARED FOR OFFICE OF PLANNING
AND EVALUATION OF THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
UNDER CONTRACT NO. 68-01-1560.
BY
FRED P.. BOSSELMAN
DUANE A. FEURER
DAVID L. CALLIES
MARCH 1,2., 1974
ROSS, HARDIES, O'KEEFE, BABCOCK & PARSONS
One IBM Plaza, Suite 3100
Chicago, Illinois 60611
\.U
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TABLE OF CONTENTS
Summary of Report v
CHAPTER 1 1
Introduction
CHAPTER II 7
Land Use Impact of EPA Responsibilities For Control
of Pollution
A. Land Use Implications of Air Act Enforcement. . . 9
B. Land Use Implications of Water Act Enforcement. . 13
C. Land Use Implications of the Marine Protection,
Research and Sanctuaries Act of 1972 16
D. Land Use Implications of the Noise Control Act. . 17
E. Land Use Implications of the Solid Waste Disposal
Act . 19
Summary 21
CHAPTER III 22
EPA Authority to Impose Land Use Control Requirements
Under The Clean Air Act
A. Grants for Air Pollution Planning and Control
Frograms. 25
B. State Air Quality Implementation Plans 28
1 Statutory Requirements« 28
2. Indirect Source Regulations ......... 32
3. Legislative History . 35
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4. Possi ble Land Use Control Medium i sins 3')
a. Air Quality Districts
b. Emission Density Zoning 41
c. Loeational Performance Standards 45
d. New Source Review 46
e. Controls Over Waste Products From Ai;r
Pollution Control Technology 49
C. Performance Standards for New and Existing
Stationary and Hazardous Sources! 50
1. Current Regulatory Program. . 50
2. Loeational Factors in Siting of Sources ... 53
CHAPTER IV . 61
EPA Authority to Impose Land Use Control Requirements Under
the Federal Water Pollution Control Act and Ma:rine Pro-
tection, Research and Sanctuaries Act
A. Water Pollution Control Grants 62
1. Pollution Control Programs 62
2. Construction of Treatment Works . 64
a. Grant Conditions 65
b. Legislative 'History 68
B.. Areawide Waste Treatment Management Plans .... 73
1. Necessity of Areawide Plan 76
2. Content of Areawide Plan 77
3. Potential Control 'Mechanisms for Areawide
Plans 80
4. Section 208 and Nonpoint Source Pollution . . 83
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5. Section 208 Ayoncy
C. Water Quality Implementation Plans 87
1. Relationship of Water Quality and Land Use. . 93
2. Possible Land Use Control Elements in
Planning Process 96
a. Load Allocation Plans 96
b. Water Quality Segments ; 97
c. Overall Growth Plans 98
d. Land Use Proximity Regulations 99
e. Nonpoint Source Controls 100
D. Clean Lakes 104
1. Washington Shoreline Management Act of 1971. 105
2. Wisconsin Sh'oreland Zoning Law 1C6
J. Tahoe Regional Planning Compact 107
4. Alternatives for EPA Consideration 108
E. National Pollutant Discharge Elimination System . 109
1. Public Treatment Plant Permits Ill
2. Private Source Permits 118
F. Ocean Dumping 120
CHAPTER V. . . . 122
EPA Authority to Impose Land Use Control Requirements Under
Other Legislation
A. The Noise Control Act of 1972 . . . . 122
B. Solid Waste Disposal Act 128
C. Compliance with Environmental Controls by Federal
Agsncies 133
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.T.APTLOR VI ...... I i<>
Relationship Between EPA and State, Regional and Local
Land Use and Environmental Protection Agencies
CHAPTER VII 142-
Interrelationships Among.i EPA' Pollution Control Programs
Summary . . 155
Matrix - Impact of EPA Programs on Land- Use 159
CHAPTER VIII 166
Existing Coordination Methods
A. The Need for Coordination 166
B. National Environmental Policy Act 167
C. The A-95 Clearinghouse Process 171
D. Integrated Grant Administration (IGA) Program. . . 174
E. Limitations of Existing Methods 177
CHAPTER IX 180
Coordinated Environmental Planning
A. The Goal 180
B. Consolidated EPA Gr-ahts. 184
C. National Land Use Policy Legislation 188
D. Conclusion 193
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SUMMARY OF REPORT
I. INTRODUCTION
The purpose of this report is to provide an in-
dependent evaluation of the legislative basis for the in-
volvement of the United States Environmental Protection
Agency (hereinafter referred to as "EPA") with the land
use decision making and control processes of the various
states. Ways are suggested by which EPA can more ef-
fectively use land use control measures where necessary to
achieve EPA's statutory goals.
In its broadest terms, land use is the carrying
out of an activity or operation in, on, over or under
a parcel of land. Land use traditionally has been controlled
by a wide variety of direct and indirect control systems
of federal state and local governments. These include
such obvious direct systems as local zoning, subdivision,
public health, building and annexation controls and such
equally important and indirect systems as real estate
property taxation and state and federal highway and housing
policies.
In recent years these traditional systems have
been augmented by new programs to control the use of land
on a state and regional basis. For the most part the new
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systems. do. not replace but merely supplement, the traditional
systems of contro,l, thereby adding to the complexity of
the control network,. In addition, of recent origin are
statutes designed to control air and water pollution
and to regulate noise and. the. disposal of solid was.te
materials. Each of these, programs administered, by EPA, have
significant impact,, bo.th; direct and indirect, on land use
patterns.
The general nature^ of the impact of these five
major pollution control acts on land use patterns is. described
in Chapter II of this report. EPA' s authority under these
acts to exercise, or to require state and local agencies
to exercise land, use. controls, in the implementation of the
various environmental protection responsibilities is
described in Chapters. Ill through V together with sug-
gestions for types, of land,, use programs which might be
useful in attaining, environmental objectives and procedures
for implementing, such programs. While it is not the objective
of this report to reach definitive conclusions regarding
the extent to which, any particular land use program might
achieve statutory goals better than other regulatory
techniques, some evaluation of the relative merits of one
land use program as. against, others is included.
EPA's statutory authority provides some flexibility
to EPA to establish mechanisms for achieving the objectives
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of the various programs. Since it is clear Congress intended
state and local government to be a substantial partner
in the problem of environmental protection, Chapter VI
explores the relationship of EPA with state and local
environmental and land use control agencies. The question
of which agency determines which policy or mechanism shall
be implemented at a particular point in time is central
to each program.
While Chapter II examines some of the impact
these programs can have on the use of land and society,
Chapter VII examines the interrelationship between the
various programs as they impact on land use and how one
program can have an impact on the implementation of another
program. Many of EPA's programs and the state implementation
plans are still in the formative stage so it is difficult
to accurately judge what the eventual impact and inter-
relationship of these programs will be as they relate
to land use. However, some hypothetical examples based on
experience to date will illustrate some of the problems
of trying to implement a number of pollution control programs
without appropriate coordination.
Chapter VIII examines existing methods that are
available for attempting to coordinate government policies
to find the optimum solution to the problems and conflicts
posed by uncoordinated environmental control programs.
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It examines a variety of planning and management techniques
and concludes that while there are significant benefits to
be derived from these techniques, their ability to provide
the necessary coordination is quite limited.
Chapter IX suggests methods by which EPA could
encourage states to undertake comprehensive systems of
planning and regulations of land use that will help achieve
EPA goals in a manner consistent with other governmental
policies.
II. LAND USE IMPACT OF EPA RESPONSIBILITIES FOR
CONTROL OF POLLUTION-
The Environmental Protection Agency has been
charged with the implementation of the Clean Air Act and
the Water Pollution Control Act and a growing number of
other programs dessigned to control pollution in the form
of ocean dumping, noise, solid waste disposal and pesticides.
The various statutes under which EPA operates were enacted
at different times, each designed to remedy a single and
separate category of environmental damage. Each of the
statutes significantly affects the way land is used. But
none of the "statutes specifically provides a mechanism to
coordinate ,its enforcement and implementation with other
environmental standards and policies for which EPA is
responsible.
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standards of performance against which emission of pol-
lutants into the atmosphere could be measured, requiring
states to devise plans and programs by which the air quality
standards would be administered and enforced, and providing
funds for research and for programs to implement Clean
Air Act standards and objectives. Land use mechanisms may
be useful in implementation of the standards and objectives
of the Clean Air Act.
Grants for planning and control programs under
the Clean Air Act may be made on such terms and conditions
as EPA deems necessary and thus EPA may require air
pollution control agencies seeking grants to study the
possible application of land use control mechanisms and/or
the coordination of air pollution control agencies with
other state and local agencies dealing with matters of
land use planning and control. However, as the grant
program is a voluntary program, efforts to impose
conditions which are too restrictive or unfavorable may
result in agencies declining to use federal funds.
Thus, it does not appear the grant program can be effectively
used to footer direct land use control programs.
State Air Quality Implementation Plans. EPA is
charged with establishing two types of national ambient
quality standards: the national primary air quality standard
(the attainment and maintenance of which is necessary to
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protect the public health), and the national secondary
ambient air quality standard (the attainment and maintenance
of which is "requisite to protect the public welfare from
any known or anticipated adverse effects associated with
presence o; such air pollution in the ambient air.") EPA
is also required to protect against "significant deteriora-
tion" of existing a^ir quality where that air quality is
cleaner than the minimum prescribed by the national standards.
Implementation of -the national standards is to
be .undertaken by states which are to prepare implementation
plans to be approved by EPA. Plans may contain land , use
controls "as may be necessary" to achieve objectives of the
Act. Among other things, these plans must also take into
consideration appropriate regulations for control of in-
direct or complex .sources. Regulations promulgated by
EPA require that state implementation plans also contain
control strategies to guarantee that growth and development
in areas identified as having a potential for exceeding
any national standard within the next ten years will not
cause vair pollution levels to exceed the national standards.
The legislative history of the Act is clear that land use
controls were an element Congress expected to be utilized
in achieving air quality standards. Possible land use
control mechanisms which might be utilized in implementation
plans include the following^
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1. The establishment of more narrowly defined
air quality control regions or districts
taking into consideration such factors as
existing land uses, meteorological conditions,
topography, population concentrations and
other factors.
2. Implementation of the concept of "emission
density zoning" whereby various parcels of
land are assigned allowable levels of pol-
lution density. Development which cannot
meet the allowable pollution density limits
would not be permitted. Emission rights
could be transferrable from one parcel to
another.
3. Locational controls applicable to particular
kinds of sources which would coordinate per-
formance standards for particular sources
developed under the Act with the state
implementation plans. Sources subject to
such standards could be encouraged to
locate near types of development which
would be less affected by emissions, or to
scatter in particular directions because of
proximity to transportation networks, related
industries or meteorological or topographical
conditions.
4. A permit procedure with respect to all new
sources. The agency could issue permits on
a first-come, first-served basis until
application of national air quality standards
prohibited introduction of further pollutants
or the control agency could undertake some
degree of planning so that permitted new
sources are related to the anticipated
needs of the community.
Permits could also be conditioned to require
the operator of a source to comply with all applicable
pollution control requirements under the Clean Air Act
or other acis in disposing of any materials accumulated
through application of air pollution control technologies.
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Performance Standards for New and Existing
Stationary and Hazardous Sources. EPA is to develop
standards of performance and emission limitations for new
stationary sources and sources of hazardous air pollutants.
States may develop programs for implementing and enforcing
such standards which normally will include use of a permit
system.
EPA's current regulations for controlling emissions
deal generally with the removal of pollutants or limitation
of the amount of pollutants emitted into the atmosphere.
These regulations can have an impact on land use as they
may determine that a particular source may or may not be
built. However, factors affecting the location of particular
sources may also be worthy of consideration as differences
in meteorological or topographical conditions or the
proximity of population concentrations may affect the im-
pact a parcicular source may have on its environment.
Furthermore, the proximity of one source to another may
have an impaQt on the extent to which pollutants from in-
dividual sources may react with one another to cause other
harmful effects.
IV. EPA AUTHORITY TG IMPOSE LAND USE CONTROL REQUIREMENTS UNDER
THE FEDERAL WATER POLLUTION CONTROL ACT AND THE: MARINE
PROTECTION RESEARCH AND SANCTUARIES ACT
Implementation of the Water Pollution Control
Act involves the development of water quality standards
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However, environmental problems tend to be inter-
related with one another through a compLex network of
ecological connections. The more this network is understood
the more difficult it becomes to find a simple solution to
any single environmental problem without threatening new
problems in another sector.
EPA was created in an effort to integrate the
functions and activities of these various programs to avoid
the fragmentation which then existed. Nowhere is the
complex network of interrelationships more apparent than in
an examination of the .land use impacts of various EPA
programs.
Under the Clean Air Act development of new
sources in urban areas which do not meet national ambient
air quality standards may be limited even though the sources
themselves meet applicable standards of performance. Further-
more, location of new sources in rural and other areas of
the United States where air quality is substantially better
than the national standards may be inhibited by application
of standards designed to prevent significant deterioration
of existing air quality. Thus, development of new sources
is likely tc be concentrated on the fringes of urban areas
where air quality improves as air quality in the adjoining
urban areas improves. Concentration of development in such
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bands will be further complicated by the need to deal
with complex or indirect sources and the accumulation of
automobile exhausts which accompany such developments.
implementation of performance standards for new
sources will create problems in other media as utilization
of technological controls over emissions is likely to
result in the accumulation of large quantities of material
such as sulfur, sulfuric acid, flyash and other solid
materials which will have to be disposed of in some manner
consistent with Water Pollution Control Act or Solid
Waste Disposal Act programs.
As under the Clean Air Act, new pollution sources
are likely to be banned under the Water Pollution Con.trol
Act even where the best available pollution control tech-
nology is used if the sources would interfere with attain-
ment of applicable water quality standards. This means
development in many urban areas will be severely limited.
Development in areas where water quality is clean may also be
inhibited where existing pollution control technology would
be inadequate to prevent degradation of existing water
quality.
Permits under the National Pollutant Discharge
Elimination System ("NPDES") may be conditioned to assure
compliance with applicable water quality standards and
effluent limitations. Conditions with respect to publicly
owned waste treatment plants may include requirements that
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and limitations and guidelines with respect to permissible
effluents which may be discharged into the nation's
waters, establishment of state plans and planning processes
for administering and enforcing water quality and effluent
standards, the grant of funds for research, development
and implementation of Water Act programs and for the construction
of waste water treatment plants, and the creation of a
NPDES permr.t system for pollution sources.
Grants may be made to support water pollution
control agencies in the administration of their water
pollution programs and for the construction of publicly
owned treatment works. Grants for treatment works are
subject to a number of conditions including consistency
with areawide waste treatment management plans and state
continuing planning processes developed to implement
Water Act standards. In addition, EPA must determine
that the size and capacity of the plant relates directly
to the needs to be served by the plant including
sufficient reserve capacity. These requirements with
respect to grants when coupled with the requirement
that NPDES permits be obtained for operation of such
plants would appear to give EPA substantial authority to
require public agencies to implement and enforce growth
plans for their particular areas, or at the minimum to under-
take programs to analyse growth and development patterns.
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In addition, where operation of a treatment plant may
result in the collection of waste materials which must be
disposed of, a; treatment plant grant may be conditioned to
require the plant operator to comply with other pollution
control laws which would be applicable to the operation of
the plant and/or the disposal of any waste products col-
lected at the plant.
Areawide* Waste. Treatment-Management Plans.
Congress authorized an intensive regional planning -effort
to deal with water pollution problems in areas with serious
pollution control problems by directing EPA to develop
and publish guidelines for the identification of those
urban-industrial or other areas where substantial water
quality control problems may exist. (Section 208) A
regional planning•agency is to be established to prepare and
implement an areawide waste treatment plan. Where an area-
wide plan is adopted and approved, permits under the NPDES
system may nat be issued if the new source would conflict
with the plan. Furthermore, grants for construction of
municipal waste treatment works may not be made if- the
works are not included in the plan.
Although Sectio'n 208 indicates an areawide
plan "shall" be adopted, no penalties exist if such plans
aire not adopted and the failure to adopt a plan does
not prejudice the rights of any party under other provisions
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of the Act; Where a plan is adopted, it must, among
other things, identify necessary treatment works to meet
anticipated needs over a 20 year period with annual
updating, establish construction priorities for treat-
ment works, establish a program to regulate location,
modification and construction of any facilities which may
result in waste discharges, and include a process to
identify various nonpoint sources of pollution and
methods to control such sources to the extent feasible.
The power to regulate the location, modification and
construction of facilities which may result in any dis-
charge of pollutants within the area is perhaps the most
far reaching power and the legislative history indicates an
intent that the power be broadly exercised. Potential
land use control mechanisms which might be adapted to
Section 208 areawide plans include the following:
1. Coordination of traditional zoning,
subdivision and planning processes
with areawide planning process to
limit the amount and type of develop-
ment in an area so existing and
projected treatment works would not
be overloaded.
2. Development of a program of assigning
allowable effluent limits to each
parcel of land similar to an emission
density zoning program under the Clean
Air Act. Such rights could be trans-
ferable .
3. A permit program directed only to those
developments discharging directly
into waterways and requiring
NPDES permits.
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Sect.ion 208 plans are to contain "procedures and
methods (ai'.cluding land use requirements)" lor control
of nonpoint source pollution. This could be done by
establishing .performance standards for particular types
of nonpoint sources or by requiring the operator of such a
source to obtain a permit with appropriate conditions
before undertaking the .particular activity.
The agency administering the Section 208 plan
is to be designated by the-.governor of the state and
is to include elected officials (or their designees)
from local governments. The, agency must have appropriate
authority to carry out .portions of the areawide plan and
EPA is authorized to reject the designation of an agency
until deficiencies in such authority are corrected. Whether
an existing regional agency is utilized or some new, agency,
EPA could require some degree of coordination between the
agency and the existing land use planning agencies.
Water Quality Implementation Plans. Water quality
standards developed by states under laws adopted prior to
1-972 .are applicable under the 1972 amendments to the Water
Pollution Control Act, and, where states have not adopted such
standards, they are^directed to do so. Standards are to
be developed for all "navigable" waters in the United
States which in effect includes virtually all waters in the
country. States are also to identify those waters within
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their boundaries for which effluent limitations alone
would not be stringent enough to implement applicable
water quality standards. Maximum daily pollutant loads
are to be established for these waters with procedures
for limiting effluents to the maximum allowable load
consistent with protection and propagration of shellfish
and wildlife.
A state continuing planning process is to be
developed which will result in plans for all waters of
the state including effluent limitations as stringent
as those developed by EPA. Individual water basins are
divided into segments which are classified according to
water quality for purposes of administration of the plan.
The planning process is also required to be coordinated
with other applicable state and local land use and
natural resources plans for the water basin. If a state
fails to adopt a planning process, the state may not administer
a program for issuing permits under the NPDES system.
The legislative history of the Act indicated a Congressional
awareness- of the interweaving of land use questions and
water quality standards and Congress recognized that limiting
effluents through technological controls would not be
sufficient to implement water quality standards. Among
the possible land use control elements which might be
included in a planning process-are the following:
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1. Procedures for determining how the
maximum allowable daily pollutant
load wou.ld.be allocated among
various possible developments.
Priority .rankings and daily pol-
lutant loads would have the effect of
establishing.a ceiling on the amount
of new development which would be
permitted in a .particular area.
2. The procedure of classifying water
basins into two different classes
of segments could be further refined
by providing for a number of dif-
ferent classifications of segments
to which varying degrees of effluent
limitations and/or land use controls
might be required to achieve and main-
tain designated water quality standards.
3. Promulgation of overall growth plans
designed to deal not only with areas
where-water quality standards are not being
met but also areas where water quality
is not a-problem at the present time.
4. Development of guidelines with respect
to the proximity of particular sources
to assure that such sources are
separated by appropriate distances.
5. Development of programs and guidelines
for control of pollution from nonpoint
sources.
Clean Lakes. In addition to the continuing planning
processes, states are directed to classify lakes within their
boundaries by eutrophic condition and prepare procedures,
processes and methods (including land use requirements)
for the control of pollution of such lakes. A review of
experience under the Washington Shoreline Management Act
of 1971, the Wisconsin Shoreland Zoning Law and the Tahoe
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growth and development controls be adopted or utilized.
Where any such conditions are violated, court action may be
taken to prohibit any further introduction of pollutants
into publicly owned waste treatment plants. This will
effectively place a limit on the amount of development which
a particular waste treatment plant can serve with the
potential of effectively permitting EPA to determine the
quantity and possibly the type of development which may
take place in a given area.
Water Act standards affect not only point
discharges of effluents into waters but also the so-called
"nonpoint"' sources such as farming, mining, timber cutting
and other activities or developments which may result in large
accumulations of waste waters which may drain off the land
into adjacent surface waters or underlying ground waters.
The Marine Protection, Research and Sanctuaries
Act of 1972 will require many municipalities along ocean
coasts to re-examine their practices for disposing of wastes.
Utilization of alternatives such as sanitary landfills
or other techniques on land may be required in place of
ocean dumping.
Although much of the Noise Control Act is directed
at the technology for reducing noise emissions from
machinery £«nd products or interstate transportation equipment,
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the Act will have an impact on land use particularly
with respect to the location of airports and types of
developments surrouriding airports. In addition, Noise
Act guidelines with respect to noise levels may influence
the routing of highways and mass transit facilities and
other heavy noise emitting industries away from the fringes
of population concentrations.
Solid Waste Disposal Act guidelines will en-
courage location of solid waste disposal facilities at
places where such matters as geology and soil conditions
will be appropriate for waste disposal rather than to sites
which are simply convenient repositories for waste materials.
This may lead to substantial changes in waste disposal practices
of communities.
III. EPA AUTHORITY TO IMPOSE LAND USE CONTROL REQUIREMENTS
UNDEF THE CLEAN AIR ACT
Because of the inadequate response of state
and local governments to protect and preserve air quality
under previous air quality legislation, the Clean Air
Act'Amendments of 1970 Were adopted significantly increasing
the extent of federal authority in the control of air
pollution. In general, the fight against air pollution
under the 1970 amendments was to be undertaken by establishing
national ambient air quality standards necessary to -protect
the public health and welfare, establishing national
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Regional Planning Compact would provide some insight as
to three possible mechanisms for dealing with pollution
of lakes and control of development around lakes. In ad-
dition, since many lakes have a number of political juris-
dictions around their shores, it might be possible to
centralize all authority in a single agency to deal with
lake pollution and the development of all land surrounding
each lake. Another alternative would be to adopt a permit
program requiring that all development in the vicinity
of lakes comply with various performance standards relating
to such marters as runoff, soil permeability, beach erosion,
dune protection, farming or lumbering procedures as well
as other factors influencing pollution levels and lakes.
National Pollutant Discharge Elimination System.
The Water Pollution Control Act establishes a National
Pollutant Discharge Elimination System designed to require
permits for the discharge of pollutants into any waters
of the United States. States with permit programs approved
by EPA may administer the permit process. To date only
California, Oregon, Indiana, Connecticut and Michigan have
approved permit programs.
The NPDES system applies to publicly as well
as private]y owned pollutant sources. However it is
specifically provided that whenever any condition of a
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permit for discharge from publicly owned waste water
treatment plant is violated, EPA or a state with an
approved permit program may proceed in court to prohibit
the treatment plant from accepting any new connections
of polluting sources. Such act-ion may effectively
prohibit further development' in an area served by a
sewage treatment pla'rit.
Permits must, assure' compliance with effluent
limitations and standards of performance developed under
the Act and must be appropriately conditioned to insurie
such compliance. This would include compliance with
guidelines and requirements respecting control of nonpoint
source pollution.
While EPA- could choose" simply to impose conditions
on permits respecting the amount of waste water which
could be treated by a plant so as to assure that effluent
limitations can be adhered to, EPA could also require'
municipalities to undertake programs for the control o'f
development generally to assure' that allowable growth does
not exceed the capacity of sewage" treatment plants or
alternative waste disposal techniques. Thus, through the
NPDES'permit, EPA may effectively place a limit on the" amount
of growth which" can be permitted1 in a particular area'.
EPA maysimply permit'municipalities to grant permits' on a
first-come, first-served basis, or it may require municipalities
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to make adequate provision for various kinds of growth
and development necessary to meet the reasonably anticipated
needs of the community.
NPDES permits also are applicable to private
sources of pollution although the conditioning authority
would be substantially less extensive as a private source
would generally have little power to affect what kind of
development takes place on adjoining land.
Ocean Dumping. The requirement of the Marine
Protection, Research and Sanctuaries Act that a permit be
obtained before waste materials from the United States may
be dumped into any ocean waters, with the requirement that
EPA establish criteria considering, among other things,
whether alternative disposal techniques including land
dumping or recycling might be more appropriate, will have the
effect of forcing many municipalities on the ocean shores to
re-evaluate their sewage disposal procedures and may require
them to implement programs to provide some form of land dis-
posal of wastes previously dumped in the ocean. This may
require a degree of land use planning not previously exer-
cised by the relevant governments.
V. EPA AUTHORITY TO IMPOSE LAND USE CONTROL REQUIREMENTS
UNDER OTHER LEGISLATION
Noise Control Act. EPA is to develop guidelines
concerning the effect of noise on public health and welfare
which may lead to guidelines for location of industries
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omitting high noise love-Is. EPA's an t in>r i I y in this
area is raerely advisory as states are not required to
adopt "and enforce the published criteria. However, EPA
can be influential in assisting and encouraging states
to adopt appropriate noise regulations.
With respejst to airports, however, EPA has
greater authority to promulgate regulations respecting the
operations of airports in conjunction with the Federal
Aviation Authority. This may also extend to the
appropriate location of airports and to the control of
development surrounding airports as is necessary to protect
public health and welfare.
EPA is also responsible for developing, af.ter
consultation with .the Department of Transportation, noise
emission standards for railroad equipment and facilities
and interstate motor carriers. While there is nothing in
legislative history to indicate EPA is given authority to
impose land use restrictions on railroad equipment or
facilities or interstate motor carriers, EPA may be able to
influence fuch matters a.s routing of highways, railroads
and mass transit facilities.
Solid Waste Disposal Act. EPA has authority under
the Solid Waste Disposal Act to promulgate guidelines respecting
solid waste recovery, collection and disposal systems. Such
guidelines are to be "adaptable to appropriate land
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use plans." While these guidelines are not enforceable
regulatory standards as in the case of air quality standards
under the Clean Air Act, federal agencies having a juris-
diction over solid waste disposal activities are to comply
with the guidelines. States are not required to adopt or
comply with such guidelines but where the guidelines may
be dovetailed to regulations under the Clean Air Act or
the Water Pollution Control Act, EPA may be able to encourage
states to adopt appropriate guidelines to ease the general
problem of pollution control.
EPA is also authorized to make grants to state
and local agencies enabling them to make surveys of solid
waste disposal practices and problems and develop solid
waste disposal plans and demonstrate projects. Demonstration
project grants may be made only where consistent with
areawide solid waste disposal plans complying with EPA
guidelines which may permit EPA to influence the content of
areawide plans.
Compliance with Environmental Controls by
Federal Agencies. All five of the major acts previously
described require federal agencies to comply with all
applicable environmental standards developed under those
acts whether developed by EPA or state or local governments.
President Nixon issued Executive Order 11752 on December 17,
1973 which affirmed this requirement while establishing the
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procedure for exemption" because' Of nationai seenrky
or other extraordinary cases where the national interest
is paramount.
VI. RELATIONSHIP BETWEEN EPA AND STATE, REGIONAL AND
LOCAL LAND USE AND ENVIRONMENTAL PROTECTION AGENCIES
In some situations, as under the Noise and
Solid Waste Acts, the final, choice as to what kind of
land use controls may be imposed to implement environ-
mental standards will be left largely to state and local
governments as EPA has little effective control to
require state and local governments to adopt particular
programs. However, with respect to air and water quality
standards, EPA has more authority and can effect its
own requirements in states which do not comply with
provisions of those Acts. In addition, where grants are
being sought under the Solid Waste Act or in the case
of airport noise regulations, EPA is in a position to
require implementation of land use control processes.
EPA could simply adopt relevant environmental
quality standards with relevant emission or effluent
limitations or guidelines and performance standards.
With these standards and guidelines developed and published,
EPA could approve state implementation plans which assure that
no new sources of pollution will be permitted if the
standards developed by EPA are exceeded. The question of
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use plans." while these guidelines are not enforceable
regulatory standards as in the case of air quality standards
under the Clean Air Act, federal agencies having a juris-
diction over solid waste disposal activities are to comply
with the guidelines. States are not required to adopt or
comply with such guidelines but where the guidelines may
be dovetailed to regulations under the Clean Air Act or
the Water Pollution Control Act, EPA may be able to encourage
states to adopt appropriate guidelines to ease the general
problem of pollution control.
EPA is also authorized to make grants to state
and local agencies enabling them to make surveys of solid
waste disposal practices and problems and develop solid
waste disposal plans and demonstrate projects. Demonstration
project grants may be made only where consistent with
areawide solid waste disposal plans complying with EPA
guidelines which may permit EPA to influence the content of
areawide plans.
Compliance with Environmental Controls by
Federal Agencies. All five of the major acts previously
described require federal agencies to comply with all
applicable environmental standards developed under those
acts whether developed by EPA or state or local governments.
President Nixon issued Executive Order 11752 on December 17,
1973 which affirmed this requirement while establishing the
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procedure for exemption" because' o£ national securi-ty
or other extraordinary cases-where the national interest
is paramount.
VI. RELATIONSHIP BETWEEN EPA AND STATE, REGIONAL AND
LOCAL- LAND USE AND ENVIRONMENTAL PROTECTION AGENCIES
In some situations, as under the Noise and
Solid Waste Acts, the final choice as to what kind of
land use controls may be imposed to implement environ-
mental standards will be left largely to state and local
governments as EPA has little effective control to
require state and local governments to adopt particular
programs. However, with respect to air and water quality
standards, EPA has more authority and can effect its
own requirements in states which do not comply with
provisions of those Acts. In addition, where grants are
being sought under the Solid Waste Act or in the case
of airport noise regulations, EPA is in a position to
require implementation of land use control processes.
EPA could simply adopt relevant environmental
quality standards with relevant emission or effluent
limitations or guidelines and performance standards.
With these standards and guidelines developed and published,
EPA could approve state implementation plans which assure that
no new sources of pollution will be permitted if the
standards developed by EPA are exceeded. The question of
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which source will be built when and where would be left
to local agencies.
However, it is ultimately EPA which is responsible
under the various pollution control acts for developing
and assuring implementation of appropriate environmental
quality and performance standards. Thus it would also
be appropriate for EPA to undertake a program requiring
local agencies to take a more comprehensive look at
growth and development within their jurisdiction and coordinate
environmental quality enforcement with land use planning.
Such a program could require broad scale coordination of
all land use planning and environmental control programs which
affect all types of development or it could concentrate on
particular ^ypes of development or particular aspects of
pollution control programs deemed most important and most
in need of coordination with land use planning agencies.
EPA could require the local pollution control agencies to
have authority to implement land use controls EPA deems
necessary or it might approve a procedure whereby the pol-
lution control agency coordinates with the land use planning
agencies provided the land use agencies do not have the
authority to effectively override pollution control standards.
VII. INTERRELATIONSHIPS AMONG EPA POLLUTION CONTROL PROGRAMS.
VThile each of the separate pollution control programs
is directed toward one aspect of £ common goal (to attain
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and maintain a cVeaiier and nunc healthful envi romnonI ) ,
the various programs will not always operate in harmony
when two or more bear on a particular development. Many
of the EPA programs and the; state and regional implementation
procedures and plans are still in the formative stage (or
even in court) and it is difficult to judge at this point what
the real impact of these programs will be when fully fleshed
out and put into force. A few examples will illustrate
the possible interrelationships between pollution control
programs and the problems which may arise.
1. How can one dispose of solid waste
in Gotham, a major metropolitan area on the
coast of the United States. The Clean Air
Act's state implementation plan makes inciner-
ation difficult if not impossible as Gotham's
air quality does not comply with national
ambient air quality standards. Disposal in
a saaitary landfill — presuming a nearby
site can be found in the land-scarce metro-
politan area -- must be undertaken in a
fashion which guards against polluting
groundwater (via leaching) or surface water
.(via runoff) supplies, contrary to the ,Water
Pollution Control Act. Moreover, the state
has adopted guidelines preventing such .dis-
position under the Solid Waste Disposal Act.
Although.Gotham is on the Atlantic Ocean,
it is limited in its ability to dump its
garbage at sea by the Marine Protection,
Research and Sanctuaries Act. Presuming
the economic feasibility of removal and
disposition to a site far from the metropolitan
area (which, again, could not be an incineration
site in conflict with significant deteriora-
tion standards), the state's Solid Waste Act
guidelines indicate a number of places where
sanitary landfills would be appropriate, but
the local zoning regulations in most counties
and municipalities zone out landfills and even
solid waste disposal plants -- after all, what
community wants a "dump" in its backyard?
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2. The City of Centerville, a major,
metropolis in the center of the United
States, has found its existing airports
too busy or too small to meet air traffic
needs. Even if sufficient land were avail-
able to accommodate a jet airport in
Centerville, airport noise regulations
would prohibit a location so close to a high
population density. However, location of
the airport at a site consistent with Noise
Act standards would place the airport beyond
existing mass transit facilities requiring
reliance on automobiles for transportation
to the airport. This would mean develop-
ment of a substantial complex source in a
rural area where the air is clean. Further-
more, existing sewage plant capacity is
not sufficient to handle all the storm water
runoff from runways and parking lots.
3. The metropolis of Sparkletown has been
rapidly growing and faces increasing needs
for additional electric power. Existing
air quality is of such poor quality that
new fossil-fueled electric generators are
not permitted in the city limits. The lack,
of sufficient water and land for cooling
ponds limits the usefulness of nuclear
generating plants because of inability to
meet thermal pollution standards. Construction
of coal-fired generating facilities at
coal mines outside the city is inhibited
because of the significant deterioration
regulations applicable to the clean air
in the rural area of the coal mine.
The matrix following Chapter VII is an effort
to illustrate in a graphic form various types of
development as they are affected by the major pollution
abatement and control programs of EPA. While EPA has
some flexibility in establishing standards and issuing appropriate
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pexmits, this flexibility is limited. Furthermore,
the various pollution control acts do not provide a
mechanism for taking into consideration governmental
laws and policies other than pollution control policies.
The effort to administer the individual pollution control
programs of EPA without some form of coordination among
those programs and wrthout some consideration of the1
impact of those programs on other state, federal and
local policies could bring about a rational, chaotic
and very expensive result.
VII I. EXISTING COORDINATION" METHODS
The various pollution control statutes contain
no specific requirement that state implementation plans
consider more than a; single environmental problem. Further-
more. the requirement and preparation of plans does not
mean the environmental objectives will be attained. Various
plans are not necessarily- compatible and may lead to al-
together inconsistent results. The need to coordinate
government programs is widely recognized but not easily
accomplished. Some existing coordination mechanisms include
the following:
1. National Environmental Policy Act;
2. The A^95 Clearinghouse Process; and
3. Integrated Grant Administration
(IGA) Program.
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Gach of these programs has its shorLcomiiujs. NEPA requires
only that conflicts between environmental and other goals
be noted and given consideration. No mechanism is contained
within the Act for the resolution of such a conflict should
it surface. Moreover, NEPA applies only to a limited class
of federal or federally-supported activities and does
not apply to many state, regional or local activities
which have a substantial impact on land use.
The A-95 Clearinghouse Process, while requiring
a mandatory review, does not provide for a reconciliation
of conflicts. The process generally looks to a com-
prehensive plan as the basis for its review but often
there is no plan or its quality is dubious. In addition,
the process applies only to a limited number of projects
and has no direct effect whatsoever on implementation of
many of the various EPA programs.
The Integrated Grant Administration Program
is too new to be definitively evaluated. However, it
is not designed to promote resolution between conflicting
program goals.
IX- COORDINATED ENVIRONMENTAL PLANNING
SPA was created to bring together the nation's
various environmental programs under a common umbrella.
To prevent conflict and avoid duplication among the whole
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range! of federal, state anci local environmental programs,
a system of coordinated environmental planning should be
applied to the whole panoply of environmental plans,
decisions and regulations of s;tate, regional and local
governments which impact on land use. Various consultants
employed by EPA with remarkable unanimity have recommended
greater coordination; of the methods for determining) the:
proper use of land. It i& becoming increasingly important
for EPA to give serious attention to coordination of its
own and' other land use control programs. Public pressure
is mounting as the courts force. EPA into increasingly
rigid enforcement of single purpose goals. Unless meithods
are found for optimizing land, use decisions in light of
all valid 30a Is, public pressure could cause EPA' s batSjic
statute to be weakened.
EPA is considering; adoption of a "consolidated
grants program" requiring only one grant application
and administrative mechanism for the funding of personnel
and facilities used for the programs involving two or
more media. In 1973 there were four states participating
in a test of the program with apparently satisfactory
results. Ten additional states are expected to be
added to the existing program during this fiscal year.
As the: purpose behind the creation of EPA was to bring
together the major environmental programs in a coordinated
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manner, it is clearly within EPA' s power l.o oncoiii\njt'
states to undertake their own programs of coordinated
environmental planning and regulations. The extent to
which EPA could require such coordination as a condition
to approving state air and water plans is not clear
as the legislative history contains little indication that
Congress envisioned an intermedia approach. Further
study of E.VA's authority to require coordinated environ-
mental planning is necessary.
National Land Use Policy Legislation. The
Senate passed Land Use Policy and Planning Assistance Act
of 1973 (S.268) would provide one mechanism giving EPA
greater authority to implement some degree of coordination
between land use and environmental control programs.
State land use programs could not be approved under the Act
until EPA is satisfied the program is not incompatible
with Federal Water Pollution Control Act, Clean Air Act
and other pollution control acts.
Conclusion. In summary, a need exists to
coordinate various environmental plans and regulations
affecting land use. The search for such coordinating function
is not new. EPA has a responsibility and the authority to
encourage the states to coordinate their environmental
planning to avoid contradictory land use implications.
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Passage of S.268 in its present -form would enable EPA
to ensure that the .environmental planning was also
coordinated with other state land use programs.
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CHAPTER I
INTRODUCTION
The purpose of this report is to provide an in-
dependent evaluation of the legislative basis for the in-
volvement of the United States Environmental Protection
Agency (hereinafter referred to as "EPA") with the land
use decision making and control processes of the various
states. Ways are suggested by which EPA can more effectively
use land use control measures where necessary to achieve
EPA's statutory goals.
In its broadest terms, land use is the carrying
out of an activity or operation in, on, over, or under
a parcel of land. Land use traditionally has been controlled
by a wide variety of direct and indirect control systems
of federal, state and local governments. These include
such obvious direct systems as local zoning, subdivision,
public health, building and annexation controls and such
equally important and indirect systems as real estate
property taxation and state and federal highway and housing
policies.
In recent years these traditional systems have
been augmented by new programs to control the use of land
on a state and regional basis. For the most part the new
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sysitems. do not replace but merely supplement the traditional
systems of control, thereby, adding, to the complexity of
the control network. In addition, of recent origin are
statutes designed to control air and water pollution
and to regulate;, noise, and. the disposal of solid waste
materials. Each, of these.) programs administered by EPA have
significant impact,, bo.th. direct and indirect, on land use,
patterns.
Under the. Clean- Air- Act, EPA is responsible:'for
developing national primary and. secondary ambient air-'
quality standards to.protect public health and welfare,
standards of performance for- new stationary sources and:
emission limitations, for-hazardous sources. Implementing
these., standards and limitations ., requires, among othe.r-
things;,; control of pollution s f rom complex sources (develop-
ment generating substantial mo-tor vehicle activity) ; and
the prevention of "significant deterioration of existing
air quality." Implementation!is sought through state,-
implementation plans, and permi.t procedures which may in-
volye-5-land use controls.
EPA is responsible under the Federal Water Pol-
lution.; Control Act for developing, among other things,,
water-quality standards); effluent- limitations for waste
waiter treatment plants.,, industrial operations and various
point sources of water pollution; guidelines with respect
to control of nonpoint source pollution; and pretreatment
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standards for sewage dumped into municipal waste treatment
systems. Plans are to be developed by states for each
water basin to implement the various water quality standards
and effluent limitations, while arcawide wasLe treatment
management plans are to be developed to deal with problems
in urban industrial concentrations and other areas where
pollution control problems exist. Grants may be made
by EPA for che construction of waste treatment facilities
if the facilities are in conformity with a state water
quality implementation plan. Permits for discharges into
waters of the United States are required under the National
Pollutant Discharge Elimination System and no state permit
program may be approved by EPA unless an adequate state
implementation plan has been approved.
Through the Marine Protection, Resources and
Sanctuaries Act EPA exercises control over the dumping of
wastes from the United States into the oceans. This program
may force localities along the coastal areas to review
their practices of dumping waste in the ocean and may require,
use of alternative methods of waste disposal.
Under the Noise Control Act of 1972, EPA is to
develop standards concerning acceptable levels of noise
and standards for emissions from various products. In
addition, EPA is to propose regulations for the control and
abatement cf aircraft and airport noise, and for the control
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of noise emissions from interstate- railroad and motor
carrier equipment*;-
UPA is to' develop' guide lines for the collection
and disposal of solid wa
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the extent to which any particular land use program might
achieve statutory goals better than other regulatory
techniques, some evaluation of the relative merits of one
land use program as against others is included.
EPA's statutory authority provides some flexibility
to EPA to establish mechanisms for achieving the objectives
of the various programs. Since it is clear Congress intended
state and local government to be a substantial partner
in the problem of environmental protection. Chapter VI
explores the relationship of EPA with state and local
environmental and land use control agencies. The question
of which agency determines which policy or mechanism shall
be implemented at a particular point in time is central
to each program.
While Chapter II examines some of the impact
these programs can have on the use of land and society,
Chapter VII examines the interrelationship between the
various programs as they impact on land use and how one
program can have an impact on the implementation of another
program. Many of EPA's programs and the state implementation
plans are still in the formative stage so it is difficult
to accurately judge what the eventual impact and inter-
relationship of these programs will be. as they relate
to land use. However, some hypothetical examples based on
experience to date will illustrate some of the problems
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of trying to implement a number of pollution control
programs v.'i thout appropriate coordination.
Chapter VIII examines existing methods that arc
available for attempting to coordinate government policies
zo find the optimum solution to the problems and conflicts
posed by uncoordinated environmental control program's.
It examines a variety of planning and management techniques
and concludes that while there are significant benefits to
be derived from these techniques, their ability to provide
the necessary coordination is quite limited.
Chapter IX suggests methods by which EPA could
encourage states to undertake comprehensive systems of
planning and regulations of land use that will help 'achieve
EPA goals in a manner consistent with other governmental
policies.
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CHAPTER II
LAND USE IMPACT OF
EPA RESPONSIBILITIES FOR CONTROL OF POLLUTION
The Environmental Protection Agency has been
charged with the implementation of the Clean Air Act and
the Water Pollution Control Act and a growing number of
other programs designed to control pollution in the form
of ocean dumping, noise, solid waste disposal and pesticides.
The various statutes under which EPA operates were enacted
at different times, each designed to remedy a single and
separate category of environmental damage. Each of the statutes
significantly affects the way land is used. But none of
the statutes specifically provides a mechanism to coordinate
its enforcement and implementation with other environmental
standards and policies for which EPA is responsible.
However, environmental problems tend to be
interrelated with one another through a complex network of
ecological connections. The more this network is understood
the more difficult it becomes to find a simple solution to any
single environmental problem without threatening new problems
in another sector.
When EPA was created in 1970, Roy Ash, then
Chairman of the Advisory Council on Executive Organization,
testified before Congress about President Nixon's reasons
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for cr-eati'ig the -'Environmental Protection Agency:
The present fragmentation of pollution-
control programs among several agencies of
government ;no longer serves the public in-
terest .... Such fragmentation is . . .
characteristic of organizational responses
to problems that were first perceived inde-
pendently. Such piecemeal organizational
structure becomes inadequate when the inter-
relation of the problem and the solution be-
comes the dominant factor.
There -is rno perfect structural arrangement
which will reconcile all interests or
resolve all -conflicts .... The reorganiza-
tion provides an ^opportunity to integrate
the functions and activities of those
programs incorporated in the EPA. In
doing so, the^potential for effectiveness
of these programs^ sis ^enhanced. 1 /
Nowhere is the complex network of interrelationships
more apparent than in.an. examination of the land use impacts
of various EPA. >progr.ams. Land used in the way most likely
to promote cleaner air ,may create water pollution problems
and ivice versa. This Chapter provides illustrations of land
use actions taken to support the goals of each EPA program
that may affect the^goals of-another program.
See, Hearing on ^Reorganization Plan No. 3 of 1970, before
a subcommittee of the.vHouse Committee on Government Opera-
tions, 91st-Congress, 2nd Session, pages 44-47 (1970).
In some cases ; the impact* of EPA programs on land, use
may vary depending onrvthe interpretation of EPA' s authority
to administer the program, as pointed out in Chapters III
to V. However, most of the conflicts in land.;use policy
with vhich1'EPA.'.must be concerned do not arise, as a result of
differing interpretations of particular statutes. Rather,
they arise as a result of unavoidable interrelationships
between land use actions taken to implement the goals of
separate statutes.
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In any oxnmi na t:.inn ol mv i rnmmMiI t I pt.-nlil cmnm
there are many instances in which, as Mr. Ash testified,
"the interrelation of the problem and the solution becomes
the dominant factor." It is in dealing with these inter-
relationships that EPA can demonstrate its ability to
integrate the functions and activities of its programs,
thereby enhancing their potential for effectiveness.
A. Land Use Implications of Air Act Enforcement
As discussed in Chapter III, the Clean Air Act
requires states to develop air quality implementation plans
which contain adequate authority to prevent the construction
and modification of new sources of air pollutants where
the sources would interfere with the attainment or maintenance
of national air quality standards. The land use implications
of this act may inadvertently result in an exaggeration of
growth pressures on the very suburban areas which are finding
such growth most distasteful.
This prognosis results from the Act's constraints on
development in both highly urbanized and very rural areas.
Many of the nation's largest cities now have air quality
which does not meet the national standards. Thus, the
construction of new sources of pollutants in such areas, even
3 /
See infra, pp. 28 efc seq.
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though the new sources may be operated in compliance with
applicable standards of performance or emission standard's/
would not be permitted if they would in any way interfere
w-ith the attainment of the national air quality standards.
Thus, in rrany of the nation' s larger cities, until air
quality is improved to the- point it meets national standards,
new industry and development causing pollution will "be
severely limited. In addition, new sources outside these
cities may affect the cities;' air quality and may be- subject
to restrictions on allowable development.
Where the nationavl: air quality standards are likely
to inhibit the location of new polluting sources in -urban
areas;, the requirement that. EPA disapprove state implementa-
tion plans which do not protect against significant-deteriora-
tion of existing a.i-r: quality-where it is cleaner than
prescribed by the national standards is likely to inhibit
or set limits on the amount or type of development which
may take place in rural and: other areas of the United States
where air quality is substantially better than the national
4 /
standards would requdre.
i_y
Indeed, the explanation accompanying proposed regulations
for prevention of significant air quality deterioration in-
dicates that while a 1,000 megawatt capacity coal-fired
power plant meeting the new source performance standards
of EPA could possibly be built under the proposed regula-
tions in an air quality control region, that pliant
would undoubtedly take up a large part of the available
emission allowance under the significant deterioration
regulations. 30 Fed. Reg. 18990 (July 16, 1973).
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Th e prohibition of new sources in areas where
air quality does not meet national standards and the limitation
on the amount of development which may be permitted in areas
with air cleaner than national standards is likely to result
in a concentration of new sources in bands between these
two areas.
These new "bands" are likely to be on the fringes
of urban areas. As air quality improves in urban areas which
are not in compliance with national ambient air quality
standards, air quality in fringe areas will improve. New
development can be accommodated (assuming national ambient
air quality standards are not violated) only if the new
development does not cause a violation of air quality standards
in the heavily polluted areas or exceed the limits permitted
by the regulations proposed to deal with deterioration of air
quality.
Zone boundaries thus become very important—and
worth large sums to individual landowners. The questions
will invariably arise as to why a particular regional zone
boundary is drawn in one place rather than a mile further
south or west. Moreover, the inevitable hard questions are
going to arise as to what amount of additional pollution
constitutes "significant deterioration" of air quality.
A further complicating factor is the necessity
for dealing with complex sources and the accumulation of
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autdmo'bil? exhausts which accompany such developments.
Developments such 'as airports/ universities and shopping .
centers can be substantial at tractors of motor vehicle
traffic. Implementation of Air Act standards is likely
to require a reduction in traditional reliance of Americans
on the use of the automobile, particularly in heavily,
populated areas/ to ^reduce the build up of automobiles-ex-
hausts. Thus, ma'ss transit facilities will be encouraged.
The existence of adequate mas's' transit may facilitateJ the
development of complex sources such as airports, universities
and shopping centers -since such'?developments can then-/be
utilized by that portion of '
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other media. The standards of peiformam-c and emission:!
limitations for new and hazardous sources encourage
devices for the removal of the polluting materials before
they are emitted into the atmosphere. These devices often
result in the accumulation of large quantities of such
materials es sulfur, sulfuric acid, flyash and other solid
materials which will then have to be disposed of in some
way. In many instances, this may mean disposal in landfills,
thus increasing requirements for additional landfill sites
to which Water Pollution Control Act or Solid Waste
Disposal Act programs may be applicable as discussed in
Chapters IV and V of this report.
5__/
B. Land Use Implications of Water Act Enforcement
Enforcement and administration of Water Act
standards can be expected to have effects similar to enforce-,
ment of Clean Air Act standards. New pollution sources will
be banned even where they use the best available water pol-
lution control technology if the sources would interfere
with the attainment of applicable water quality standards.
Waters in many urban and other areas of the country now do
not meet applicable water quality standards so further
development of polluting sources in such areas may be ef-
fectively limited.
5 /
See Chapter IV.
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Development in areas where water quality is quite
clean may also be' inhibited even though a new source may
be constructed in compliance with relevant effluent
standards if those standards are not stringent enough to
implement applicable water quality standards. This inhibition
may. apply not only to point sources of water pollution but
also to significant nonpoint sources. Thus, an effort to
build an airport or a" shopping center or to undertake sub-
stantial strip mining or lumbering activities in an area
where existing water quality is" quite clean may be limited
because of the likelihood of nonpoint source (runoff)/ pol-
lution which would degrade the existing water quality.
The National Pollutant Discharge Elimination
System (hereinafter sometimes referred to as "NPDES") has
built into it a mechanism for significantly affecting land
use. Section 402(h) provides that if a condition of a
permit for discharges from a-, publicly owned treatment works
is violated, EPA or a state (if the state permit program
is Approved) may proceed in court to restrict or prohibit
the introduction of" any new pollutant into the treatment
works. EPA is required to condition the permit on compliance
with all of the applicable e'ffliuent limitations and standards
of performance prescribed under the Act and other conditions
may be imposed as deemed appropriate. Thus, should a; municipal
treatment plant become loaded to a capacity such that the effluent
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-15-
discharge from the plant would violate any of the applicable
effluent limitations, the plant would be Ln violation of
the NPDES permit and EPA could sue to prohibit any further
introduction of any pollutant into the treatment works. This
will effectively place a limit on the amount of development
which any particular waste treatment plant can serve with
the potential of effectively leaving to the courts a deter-
mination of the quantity and possibly the type of development
which may take place in a given area if the community fails
_s_y
to plan for sufficient sewer capacity.
Water Act standards will apply not only to
residential and industrial development which results in the
accumulation of large quantities of waste water which must
be appropriately treated and disposed of, but they may also
apply to other activities such as farming, mining, timber
6 /
EPA is still considering the type of conditions it may
impose on NPDES permits for publicly owned waste treat-
ment plants. For example, the conditions could simply
be limited to conditions that the plant comply with all
applicable effluent limitations. This would have the
indirect effect of limiting development in the area served
by the plant since it would limit the number of new sources
of pollution which could be hooked up to the plant. On
the other hand, conditions could be conceivably developed
which might go further in prescribing the quantity and
type of development which would be permitted to be attached
to the municipal plant to prevent a water quality problem.
The EPA Memorandum dated January 15, 1974 from Robert L.
Sansom, Assistant Administrator for Air and Water Programs,
and Alan G. Kirk, Assistant Administrator for Enforcement
and General Counsel, to Regional Administrators, Guidance
for Conditioning of Municipal Permits in High-Growth Areas
takes an intermediate position suggesting that in certain
cases planning and management of sewer capacity be
coordinated with the issuance of building permits in the area.
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-16-
cutting and other activities on Land which do not result Ln
specific accumulation of waste water, but which can result
in substantial quantities of sedimentation, pesticides or other
waste materials being drained off of the land into adjacent
surface waters or underlying groundwaters. Mechanisms for
control of this kind of nonpoint source pollution have not to
date been promulgated by EPA but devices such as requiring
particular kinds of cultivation techniques by farmers, selective
cutting rather than clear cutting by timber companies, or
requiring strip mine operators to take certain precautions
in their operations to prevent runoff are not inconceivable.
As in the case of the Air Act, implementation of
effluent limitations under the Water Act is-likely to result in
the accumulation of large quantities of waste materials which
will have to be disposed of in some manner. Much of this
disposal will be on land, whether at sanitary landfill sites
or in the form of sludge which may be spread on land as
fertilizer. Standards and guidelines developed under the
Water Pollution Control Act, Clean Air Act, Marine Protection,
Research and Sanctuaries Act of 1972 and Solid Waste Disposal
Act of 1972 all may have some bearing on such disposal.
C. Land Use Implications of the Marine Protection, Research
and Sanctuaries Act of 197 2 7 /
In coastal regions, such as the area aroun^d New
York City, where disposal of municipal waste has been
2_/
See Chapter IV, infra, at pp. 20-21.
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-17-
accomplished simply by taking it out into the ocean and
dumping it, the anti-dumping policy expressed in the
Marine Protection Act may result in disposal of such
wastes -- along with solid industrial wastes -- in sanitary
landfills or by other processes such as incineration. The
impact of the Act could be substantial in coastal areas for
the cost of dumping wastes in the ocean is considerably
less than the cost of providing alternative treatment or
utilizing sanitary landfills. The ocean costs nothing
except for the barges necessary to carry the waste materials,
but land for landfills could be very expensive, and, creates
the general problems of landfills discussed elsewhere in
this report.
8 /
D. Land Use Implications of the Noise Control Act
Although much of the Noise Control Act is directed
at the technology for reducing noise emissions from machinery
and products or interstate transportation equipment, the Act will
have an impact on land use. Airports in particular are
enormous developments in themselves and they tend to
generate substantial amounts of associated development
in surrounding areas. Airports also unavoidably generate
s_/
See Chapter V .
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-18-
great amounts of noise which can be not only unpleasant
but severely damaging. EPA as well as other governmental
agencies are working to develop standards and guidelines
to control the impact of airport noise and what can be
expected is that it will be suggested airports be
located far out in rural areas away from residential or
other high population density development.
Standards are likely not only to suggest loca-
tion of airports in rural areas but also to regulate the
kind of development which will be permitted near any new
airport. Presently a variety of kinds of development in-
cluding hotels, motels and other service and commercial
business catering to or utilizing airports heavily tend
to grow up around airports. Airport noise standards can
be expected to influence how much of such development can
be located where and under what conditions in the vicinity
of airports. This in turn would influence the living
and working habits of those persons employed by or
utilizing such development.
It is also possible that Noise Control Act
guidelines with respect, to noise levels (as opposed to
noi'se emissions) may influence the routing of highways
and mass transit facilities away from or on the fringes of
population concentrations. Heavy noise emitting industries
may also be directed to more remote locations to reduce
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-19-
noise impact on surrounding development or the develop-
ment which may be permitted around such noise sources may
be limited. Once health guidelines are developed by EPA
with recommended background levels of noise, develop-
ments in hazardous noise zones may be condemned, relocated
or compensated for damages due to excessive noise.
9 /
E. Land Use Implications of the Solid Waste Disposal Act.
Whenever solid waste material must be disposed of,
whether the material is the remains of other pollution
control processes or is material accumulated from the public
or other commercial or industrial processes, if an areawide
solid waste disposal plan is in effect, disposal will not
be a simple matter of finding an empty lot or old stone
quarry to use as a dumping ground. Solid Waste Act guide-
lines will have to take into account such things as the
geology and soil conditions of disposal sites to assure
that water draining through the dumped material will not
readily get into groundwater sources or nearby surface
waters with substantial dissolved pollutants. A landfill
site located on a solid rock bed may be convenient
but it may also be very dangerous as polluted water can
accumulate and drain into nearby water sources. Care must
also be taken to assure that amounts of earth are available
to cover the dumped material at appropriate intervals.
U
See Chapter V, infra, pp. 128 et. Sfiq..
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-20-
Such cover is necessary to avoid odor problems and to
assure proper filling of the site and decomposition of
the material. These, considerations will limit the possible
sites for disposal facilities.
Landfill sites .generate a great deal of truck
traffic and odor which is likely to be objectionable to
surrounding - landowners, particularly if the site ;is .any-
where near residential development, schools;, hospitals
or various other kinds of development where large numbers
of people are present. What may be a suitable location
for a landfill site, because of soil or geological,character-
istics may not be. consistent with local .land use.plans for tha
particular area. Local governments are not notorious for
their love of landfills and may not permit landfills to be
located at sites,.most suitable even though other sites may
be-lacking.
Local governments are not obligated to. adopt or
follow Solid WasteiAct guidelines unless they are. seeking
federal grants for : solid^aste programs. However, federal
agencies are, required to^comply with the guidelines, and
there are enormous tracts of public land which the government
makes available to mining, companies under the Mineral Lands
_10/
Leasing Act.
10/
See Title 30, U.S.C.A., 41 Stat. 427 (Feb. 25, 1920),
as amended.
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-21-
Mining processes result in large quantities of solid waste
material which in the past may simply have been dumped
at a convenient empty spot. Under the Solid Waste Act, the
Department of the Interior will be required to impose tough
conditions in mineral leases respecting the disposal of
mineral wastes.
Summary
As this chapter points out EPA has no choice but to
impose regulations affecting the use of land. The statutory
goals established by Congress contain numerous implications about
the way land will be used, and some of these implications
for land usje may be inconsistent with those posed under other
statutes. These implications may not have been anticipated by
Congress, but EPA will inevitably bear the responsibility for
them. But EPA is by no means impotent in regard' to the effect
of its programs on the use of land. Congress has in numerous
instances authorized EPA to exercise specific powers to control
land use as a means of implementing its goals. The authority
of EPA to exercise such powers is the subject of the next
three chapters.
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CHAPTER III
EPA AUTHORITY TO IMPOSE LAND -USE CONTROL REQUIREMENTS
UNDER THE CLEAN AIR ACT
As pointed out in Chapter II, the various pol-
lution control programs canthave significant impact on the
way land is used. Pollution control mechanisms have
generally been thought to involve technological controls
on how a particular process is carried out to prevent or
minimize the dumping of waste products into the environment
with adverse impact. As suggested in this and the
succeeding two chapters, various .land use control mechanisms
may be useful in the implementation of pollution standards.
Land use controls differ from pollution controls
in that land use controls generally determine the activities
that will be permitted on particular land. Such controls
are generally less concerned with the process by which those
activities are.to be carried out than with the decision as
to whether the activities should be carried out at all.
As early as 1955, Congress recognized air pol-
lution as 'i nationwide problem and found action was needed
to -study and control the problem. Although no steps were
taken to provide for direct federal control of air pollution,
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-23-
1 /
Public Law 159 was enacted stating "that the prevention
and control of air pollution at its source is the primary
responsibility of states and local governments." As time
passed, it became clear further action would be necessary
to protect the nation from further deterioration in air
quality. Awareness of these problems led to the adoption
_2_y
of the Clean Air Act of 1963, and later, the Air Quality
_i_y
Act of 1967. Both of these Acts left the major regulator
responsibilities with state and local governments.
Recognizing the continuing inadequate response
of state arid local governments to protect and preserve
air quality, the Clean Air Act Amendments of 1970 were
adopted significantly increasing the extent of federal auth-
_AJ
ority in the control of air pollution. In general, the
fight against air pollution under the Clean Air Act Amend-
ments of 1970 was to be undertaken by establishing national
ambient air quality standards necessary to protect the
public health and welfare, establishing national standards
of performance against which emission of pollutants into
1_/
Ch. 360, 69 Stat. 322 (1955).
2 /
Pub. L. No. 88-206, 77 Stat. 392 (December 17, 1963).
IV
Pub. L. No. 90-148, 81 Stat. 485 (November 21, 1967).
kJ
Act of December 31, 1970, Pub. L. No. 91-604, 84 Stat.
1676, 42 U.S.C.A. §§1857 e_t seq(Hereinafter referred
to as the "Clean Air Act." Clean Air Act section numbe
referred to hereinafter are section numbers of Pub. L.
No. 91-604.)
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-24-
the atmosphere would be measured, requiring states to
devise plans and programs by which the air quality
standards would be administered and enforced, and providing
funds for research and for programs to implement Clean Air
Act standards and objectives.
Land use control mechanisms may be useful in
achieving the goad's of the Clean Air Act. A number of pro-
visions of the Clean Air Act authorize EPA to require con-
sideration or exercise of land use control mechanisms by
state and local agencies (or other federal agencies), in
dealing with potential sources of air pollution.
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A. Grants for Air Pollution Planning and Control Programs
Section 105 of the Clean Air Act authorizes EPA
to make grants to local air pollution control agencies in
an amount up to two-thirds of the cost of planning and
developing pollution control and prevention programs and
up to one-half of the cost of maintaining such programs.
In addition, EPA may make grants to air pollution control
agencies encompassing two or more municipalities in an
amount up to three-fourths of the cost of planning and
developing and up to three-fifths of the costs of maintaining
5 /
such programs. The Act further provides that before
any planning grant may be made to any air pollution control
agency, EPA must have assurances the agency has the
"capability" of developing a comprehensive air quality plan
§_/
for the air quality control region. Grants shall be made
by EPA "upon such terms and conditions as the Administrator
may find necessary to carry out the purpose of this
7 /
section."
Given EPA's authority to impose terms and
conditions on grants to air pollution control agencies, EPA
5 /
Clean Air Act, §105 (a) (1) .
6 /
Id. at §105(a)(3).
2 /
Id. at §105(b).
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-26-
may require such agencies to consider or implement land
use control programs as a condition to receiving such a
grant. Whether or not a local air pollution control agency
seeks federal funds is a purely voluntary matter, and if.
conditions imposed are deemed too restrictive or unfavorable
by an applicant, the applicant may choose to decline
a_/
federal funds, and conduct a program, at its own expense•
With respect to grants for planning, developing,,
establishing or improving programs for the prevention and
control of air pollution and) the implementation of ambient
air quality standards, EPA-.could: require an applicant to
submit a proposed work program describing its existing
land; use authority' (if any); and the process to be under-
taken to determine' how to use; existing land use controls.
In addition, if antapplicant has little or no authority
oyer land use within its jurisdiction, it may be required
to provide an analysis of its environmental situation to
determine whaif any land-i use controls would be necessary
9]_/
As a practical matter-, this may not be a significant
consideration! as it is not likely EPA'will require
more stringent conditions under the grant program
than it Will require wi.th respect to state implemen-
tation plans and programs for control of emissions
from stationary and- hazardous sources. However, it is
a factor which must be kept in mind in determining
what sdrt of conditions to impose on grants.
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-27-
or useful to achieve and maintain prescribed air quality
standards. If EPA determines particular types of land
use controls may be useful in achieving and maintaining
air quality standards, an applicant for funds might be
required to study the application of any such controls to
its particular circumstances and provide a report to EPA
as to the advisability of their implementation.
Grants may be made to regional air pollution
control agencies (encompassing two or more municipalities)
only if the agencies have "substantial responsibilities"
for carrying out applicable state air quality implementa-
W
tion plans. Although the Act does not specify the kind
of maintenance program EPA may fund or the kind of conditions
which may be attached to grants to air pollution control
agencies, in light of the Act taken as a whole and the
9 /
For example, if EPA were to conclude that emission
density zoning might be a useful device in the control
of air pollution, an applicant for planning and develop-
ment grants could be required to study the usefulness
of an emission density zoning program in its particular
air quality control region and to provide a full and
detailed report to EPA as to the reasons why such a program
should or should not be implemented. Since Section 105
grants are for planning and development such studies
would seem more appropriate than a requirement that
particular kinds of land use controls evolving out of a
planning and development program be actually implemented
as part of an air pollution control strategy.
10/
Clean Air Act §105(a)(1)(C).
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-28-
contemplation by Congress that land use ctmLrola play a rule
11/
in control of air pollution, applicants for grants for the
maintenance of air quality control programs could be
required to have authority to implement appropriate land
use controls or to indicate how air pollution standards will
be met without the application of such controls.
With respect to implementation of air quality and
performance standards as elements in air pollution control
programs, the grant program may be an effective method of
encouraging and assisting air pollution control agencies to
more effectively study the possible application of land
use control mechanisms and/or the coordination of air pol-
lution control agencies with other state and local agencies
dealing with matters of land use planning and control.
Moreover, it does not appear that the grant program can
easily be used>to foster direct land use control, programs.
B. State Air,,..Qua^lityvImplementation Plans
1. .Statutory.:. Reg u i re me nt s. EPA is charged with
establishing two types of-national ambient air quality
standards: the -*na tiona 1:-primary air quality standard, which
is that level of air quality the attainment and maintenance
ii/
See infra, .pp. 3 5-39.
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ju_/
of which is necessary to protect the public health;
and the national secondary ambient air quality standard,
which is that level of air quality the attainment and
maintenance of which is "requisite to protect the public
welfare from any known or anticipated adverse effects
associated with the presence of such air pollution in the
13 /
ambient air." EPA is also required to protect
against "significant deterioration" of air quality even
where that air quality is cleaner than the minimum
I4_y
prescribed by national standards. Thus, although ambient
Clean Air Act §109(b)(l)
Id. at §109(b)(2).
U.J
Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.
D.C. 1972) aff'd., 4 E.R.C. 1815 (D.C. Cir. 1972)
(hereinafter referred to as "Sierra Club"). Pursuant
to the ruling in this case, EPA has published a
series of four alternative regulations designed to
prevent "significant deterioration" of air quality
in those parts of the United States where the air
is cleaner than required by the national ambient air
quality standards (Proposed EPA Reg. §52.21, 38 Fed.
Reg. 18986, July 16, 1973) identifying sixteen
categories of new sources, as being subject to the
proposed regulations. Any other source having a
potential annual emission rate equal to or greater
than 4,000 tons per year of particulate matter,
sulfur dioxide, nitrogen oxide, hydro-carbons or
carbon monoxide would also be covered as would any
other source the control of which would be necessary
to prevent significant deterioration. Specific
standards of allowable increases in pollutant
levels would be set only with respect to particulate
matter and sulfur oxides with a requirement that new
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air quality standards are to be designed for national
application, the: effective standards in a particular clean
area may be substantially different from the effective
standard in a polluted urban area because the "significant
deterioration" standard as. engrafted on the ambient air
quality standards may.require imposition of much stricter
environmental and development controls to prevent signi-
ficant deterioration than would be required if achievement
and maintenance, of ambient air quality standards were the
objective. What additional controls might be required to
prevent significant deterioration would be a matter of
policy to be determined- in each particular case.
i±y
(cont'd.)
or modified- sources be: constructed and operated em-
ploying the best available control technology for
minimizing, all five types of pollutants. Complex
sources would not be covered by the proposed regula-
tions. Each of t;he four< alternatives proposed;
by EPA would set limits on permissible growth in
areas with air cleaner,: than national standards.
Thus, a new, source using the best available emission
control technology meeting all of EPA's performance
standards and not resulting in any violation of
the netional ambient air quality standards might be
barred because existing air quality would be
"significantly" reduced by operation of the source
in a clean area. As a result of the Sierra Club
case, the effective air quality standard for a clean
air area may be considerably more stringent than
the national standards.
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Within nine months after promulgation of national
primary or secondary ambient air quality standards, each
state must submit to EPA a plan providing for the implemen-
tation, maintenance and enforcement of such ambient air
quality standards within each air quality control region
within the state. This plan must also provide for the
prevention of significant deterioration of air quality in
15 /
clean air areas. Each implementation plan must be
approved by EPA before it becomes effective. Any such
plan may be approved by EPA if it is determined, among
other things, the plan provides for attainment of
the primary standards as expeditiously as practicable
but in no case later than three years from the date of
16 /
approval of the plan.
In the case of the secondary standards, the
plan must specify a reasonable time within which such
17 /
secondary standards would be attained. In addition,
the plan iPust include emission limitations and schedules
for compliance with the limitations together with such
15 /
Clean Air Act §110(a)(1); Sierra Club, supra, note
14.
16_V
Id. at §110(a)(2)(A)(i).
i7_y
Id. at §110(a)(2)(A)(ii),
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other measures as may be necessary to insure attainment
and maintenance of the national standards including,
_A8/
but not limited to, land use and transportation controls,
and a procedure' for the review of the location of new
-19/
sources to which 'emission standards will apply.; The
procedure for reviewing the location of new sources
must include adequate authority to prevent the construction
or modification of"any new source subject to the emission
standards at any location which would prevent the attain-
ment or maintenance of any national primary or secondary
20 /
air quality standard;
2. Indirect:. Sou;rce.:.Review ' and Air Quality
Maintenance . EPA*has adopted=regulations with respe'ct
to the preparation, adoption; and submittal of implementation
_2I/
plans; These regulations have been.further amended
as' a result of a decision of the District of Columbia
Court of Appeals in National Resources Defense Council,
22/
Inc. v. EPA which, among other things, required
18/
Id. at §110 (a) C-2) (B) .
11/
Id. at §110(a)(2)(D).
20/
Id. at §110(a)(4). See also 40 C.F.R. §52.18.
21/
Title 40 C.F;R.-, Subchapter C, Part 51.
22/
475 F.2d 968 (D.C. Cir. 1973).
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-33-
EPA to deal with the problem created by air pollution
resulting from vehicular traffic near development. EPA
has promulgated regulations designed to control the
introduction of pollutants from so-called "indirect sources"
or "complex sources" in addition to the standards developed
23 /
for control of air pollution from stationary sources.
An indirect source is any development generating sub-
stantial emissions as a result of motor vehicle activity
which is attracted to or associated with the development
and which may interfere with the attainment or maintenance
of any of the national standards. Regulations which would
"trigger" application of indirect source controls have
24 /
been promulgated by EPA.
The regulations promulgated by EPA following
the National Resources Defense Council case also provide
that each state implementation plan must contain a control
strategy to guarantee that growth and development in areas
identified as having the potential for exceeding any
national standard within the next ten years will not cause
air pollution levels to exceed the national ambient air
40 C.F.R. 51, 38 Fed. Reg. 15834, June 18, 1973.
24_y
40 C.F.R. 51, 39 Fed. Reg. 7269, Feb. 25, 1974.
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-34-
25_y
quality standards. Every new development which may
be a source of .air pollution either by direct stack.
emissions or because of the indirect generation of motor
vehicle activity.(i.e., an indirect source) must be
reviewed by the state before it may be built.
In response to amendments to the Clean Air
Act which would have been(made had the Energy Emergency
Act passed Congress in December, 1973, EPA Administrator,
Russell E. Train, withdrew regulations previously issued
requiring review of new parking facilities for their
impact on air quality. Ra.ther, the date of any review
of new parking facilities ,,would be deferred until January 1,
26 /
1975. Also .withdrawn were regulations requiring certain
states to impose parking surcharges as an element in
transportation control plans.. These actions were taken
to bring EPA regulations in line with the proposed amend-
ments. Although the amendments were not adopted in 197 3,
the reasons for the failure of Congress to enact them were
unrelated to the amendments and EPA interpreted the
Congressional actions as providing strong evidence of the
intent of Congress.
25_y
40 C.F.R. §52.12.
26 /
39 Fed. Reg. 1848, January 15, 1974.
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-35-
3. Legislative History. Although a review
of the entire Clean Air Act might suggest the principal
air pollution control processes EPA is to deal with are
direct controls over emissions, Section 110 makes it
clear land use controls and the review of the location of
new sources (with authority to prevent construction of
such sources) are important elements in a state air quality
implementation plan. Section 110(a)(2) provides that the
EPA may approve a state implementation plan if it is
determined that:
(B) it includes emission limitations,
schedules, and timetables for compliance
with such limitations, and such other
measures as may be necessary to insure
attainment and maintenance of such
primary or secondary standard, including,
but not limited to, land use and
transportation controls;
* * *
(D) it includes a procedure * meeting the
requirements of paragraph (4), for review
(prior to construction or modification)
of the location of new sources to which a
standard of performance will apply;
Section 110(a)(4) provides:
The procedure referred to in paragraph (2)(D)
for review, prior to construction or modification,
of the new location of new sources shall (A) pro-
vide for adequate authority to prevent the construc-
tion or modification of any new sources to which a
standard of performance under Section 111
will apply at any location which the State
determines will prevent the attainment or
maintenance within any air quality control
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-36-
region (or portion thereof) within such
State- of a national ambient air quality
primary or secondary standard. . . .
The extent and nature of the land use controls
to be utilized in achieving desired air quality are not
spelled out precisely in the Act nor is the legislative
history particularly clear. The Clean Air Act Amend-
ments as originally passed by the House of Representatives
contained no particular provisions with respect to land
use. However, the version adopted by the Senate did contain
the land use and transportation control elements fcfund in
present Section 110. On page one of the rieport of the
Senate Committee on Public Works it is stated:
Land use policies must be developed to
prevent' location of facilities which
are not compatible with implementation
of national standards. 27 /
The report goes oh tb say (at pages 12-13):
In addition to direct emission controls,
other potential parts of an implementation
plan include land use and air and surface'1
transportation controls. These should
insure that any existing or future stationary
source of air pollution will be located,
designed," constructed, equipped, and
operated', . . . so as not to interfere
with the implementation, maintenance,
and en'fo'rcemfent of any applicable a-ir
quality standard or goal.
27/
S. Rep. No. 91-1196, 91st Cong. 2d Sess. 1 (1970).
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-37-
The Committee acknowledges that this
will require each region to make difficult
judgments about the siting of facilities
which may emit pollution agents, including
decisions to prohibit the location of new
sources which, although in compliance with
Section 113, would contribute to violation
of a regional air quality standard. These
factors would necessitate long-term
decisions of the character of the growth
and development of such region.
In the debate on the Senate floor following
the report by the Senate Committee on Public Works of
the bill co the full Senate, Senator John Sherman Cooper,
the ranking Republican on the Senate Public Works Committee,
summed up the Senate bill as it relates to the ambient
air quality standards by saying:
Within nine months after standards are
fixed, pollution sources must be inventoried
in the entire country, hearings held, and a
control plan must be developed - including
emission requirements for sources, and what-
ever land use, traffic or other controls may
be necessary. And these plans must accomplish
the air quality standards within three years.
It is at this point that States and communities
must make economic decisions, and decisions on
the future growth of their areas and the kind
of life they want, in considering alternative
means of achieving clean air. 28 /
As previously indicated, the House version of
the Clean Air Act did not contain the land use provisions
found in the Senate bill. In conference, however, the
116 Cong. Rec.S329l8, September 21, 1970.
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-38-
Senate's view prevailed and the T.and use language found
in Section llO^was made part of the law. In debating
the conference version of the legislation, Senator Muskie present 3
a summary of the legislation on the Senate floor which said:
Implementation of standards will require
changes-in public policy: land use policies
must be- developed to prevent location of
facilities which-are not compatible with
implementation1 of^national standards. States
must review7, the location of every- new
stationary-source1 before1 construction to
assure no interference with attainment
of the standards.
Transportation policies must be developed
or improved to assure that the impact of
pollution from existing, moving sources is
reduced to the minimum-compatible with the
needs-of each-region. Construction of
urban highways and1 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 restricted. 29 /
Although1 the legislative history indicates
Congress forsaw-the. use of ^land use and transportation
controls, the legislative history is not particularly
helpful in determining what-kind of land use or trans-
portation controls may or ought to be required. The
language of Section 110 simply states that land use
and' transportation controls- may be required "as may
29 /
116 Cong. Rec.S42384, December 18, 1970.
-------
-39-
30 /
be necessary." The issue then arises as to what
kind of controls EPA can require local air pollution
control agencies to consider or implement, or which EPA
can impose itself in its direct implementation of Clean
Air Act standards.
4. Possible Land Use Control Mechanisms
a. Air Quality Districts. One possible mechanism
to relate land use more closely with air quality control
mechanisms would be the establishment of more narrowly
defined air quality control regions or districts. The
Senate Public Works Committee report accompanying the
Senate version of the Clean Air Act amendments indicated
the delineation of regional boundaries should be determined
on the basis of meteorological, topographical, and urban-
31 /
industrial concentrations. Many of the air quality
control regions presently delineated cover broad areas
encompassing widely varying air pollution levels and
containing a variety of polluting sources. Consideration
could be given to studying the existing air quality
control region boundaries to determine whether it may be
useful or advisable to break down the country into smaller
30 /
Clean Air Act §110(a)(2)(B).
31 /
S. Rep. No. 91-1196, supra note 27., at p. 8.
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and more narrowly defined districts for purposes of
administration' of air quality standards.
The United States Court of Appeals decision in
the Sierra Club case requiring EPA to disapprove state
implementation plans which do not prevent significant
deterioration of air quality would to some degree prevent
a'ir pollution control agencies in existing air quality
c'oritrol regions from achieving air quality standard's in
their particular regions as a whole by permitting trade-
offs between relatively clean areas and polluted areas
within the region. However, a narrower delineation of
air quality regions, takin'g into consideration such factors
as existing larid uses, meteorological conditions, topography,
population concentrations and other factors, may permit
the designation of precisely defined air quality districts
which would permit the more effective implementation of
air quality standards. This might also include the
prohibition or encouragement of particular types of sources
or uses because of existing pollution conditions.
Section 107 of the Clean Air Act continues the
designations of air quality control regions which
existed prior to enactment of the Clean Air Act Amend-
ments of 1970. Furthermore, it is stated that any
portion of a state which is not in one of the previously
designated air quality control regions would be an air
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quality control region. The Administrator is also
given authority to designate as an air quality control
region
. . . any interstate area or major intra-
state area which he deems necessary or
appropriate for attainment and maintenance
of ambient air quality standards. 32 /
This section would appear to permit EPA some flexibility
in delineating air quality control regions on a basis which
might lead to more effective administration of the Act
and implementation of air quality standards. Further
breakdown of air quality control regions into smaller
districts for purposes of administration could also be
required under Section 110 which requires states to
prepare appropriate implementation plans.
b. Emission Density Zoning. Another technique
for relating land use controls and achievement of air
quality standards which has been considered to some
extent by EPA is the concept of "emission density zoning."
This would entail the designation of various districts
to which would be assigned allowable levels of pollution
density. A process comparable to development of a traditional
zoning map would divide a jurisdiction into various
districts in which certain uses would be permitted or
3 2/
Clean Air Act §107(c).
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prohibited. No construction could take place within a
district which would result in emissions causing the
assigned omission densities to be exceeded.
An emission density zoning program would en-
counter a number of possible legal objections, the primary
one being based on the equal protection clause of the
Constitution. If an arbitrary level of emission density
is established.for an area?and any one or few parties is
permitted to undertake development which will utilize all
or most of the allowable emissions for the entire:.district,
owners of remaining parcels^may be left with little or
no allowable emissions thereby effectively reducing the
opportunities they have to-'develop their land. Depending
on the method used to arrive at the allowable emission
densities and the opportunities various landowners would
have to protect their own rights to develop their property,
such a program could run into serious difficulties in that
a few property owners in a district would be able to
effectively preempt the rights of all other property owners
to 'develop their -property.
Among the possible variations would be a system
of transferable emission ri'ghts. Various parcels within
a particular emission density district would be assigned
levels of allowable emission density. Owners of parcels
could either undertake construction which would use up
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-43-
the allowable emission density or they could sell their
allowable emission rights to other landowners who could
accumulate sufficient emission rights to construct a
facility which might exceed the allowable emissions for any
one particular parcel. The person selling his emission
rights would then be prohibited from undertaking any
construction which would result in emissions exceeding any
of his remaining rights, if any. Utilization of a concept
of transferrable emission rights might be one way of
avoiding some of the legal and constitutional problems in
limiting the allowable emissions from particular pieces
of property. However such a system has never been tried
and it is impossible to estimate the administrative
problems and costs that would result.
The California Air Resources Board issued a
report in August, 1973 in which it recognized the need for
relating air pollution control to land use and transportation
_3i_/
planning. Legislation was proposed (which has been
introduced in the California Senate as Senate Bill No. 1543)
which would authorize the California Air Resources Board to
establish emission limits for each pollutant in each air
A Report to the Legislature on Guidelines for Relating
Air Pollution Control to Land Use and Transportation in
the State of California, California Air Resources Board,
August, 1973.
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basin in the State for which there is an active Basinwide
Air Pollution Control Coordinating Council. Each such
Basinwide Council is to subdivide its air basin into sub-
divisions and develop emission limits for each subdivision.
The subdivisions are to be based on areas subject to
jurisdiction of planning agencies if practicable. Local
governments within the basins are then to prepare general
plans, regional land use plans and regional transportation
plans which must be reviewed and approved by the relevant
Basinwide Council.
A variety of other implementing amendments are
included in the proposed legislation designed to assure
that development inducing air pollution cannot be under-
taken without a permit which assures that emission limits
established for individual air basin subdivisions are not
exceeded. No permit for construction, operation, sale,
rental or use of any article, machine or other contrivance
which may cause air pollution may be issued if the established
emission limits would be exceeded or if the city or county
in which the source is to be located does not have a
general plan approved by the Basinwide Air Pollution
Control Coordinating Council.
The California legislation is at this stage
merely proposed legislation. Furthermore, it does not
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provide any system of transferrable development rights.
However, it represents one of the very early efforts to
implement a form of emission density zoning and its progress
warrants observation.
c. Locational Performance Standards. Rather
than applying some form of districting or mapping concept
as suggested above to all types of polluting sources, EPA
could adopt a somewhat more limited approach by implementing
Section 110(a)(2)(D) and Section 110(a)(4). This would
involve adoption and implementation of a program relating
the matter of location to particular sources of pollutants
such as power plants, cement plants, smelters and other
major sources of air pollution. Such a program would
entail coordination of the emission standards developed
pursuant to Sections 111 and 112 with the implementation
plans developed under Section 110 for the purpose of
identifying the types of sources for which locational
controls would be applied and the most effective ways of
applying the locational controls.
A variety of factors could be taken into
account in the implementation of such a locational control
program. for example, direct sources could be subject
to standards which would encourage location near types
of development which would be less affected by emissions
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than would other types of development with higher associated
concentrations of population, such as residential develop-
ment. Direct sources also could be encouraged to scatter
in particular directions because of the proximity to trans-
portation networks, related industries, topographical
conditions, or other factors which could have the effect
of reducing the overall impact of a source on the surrounding
environment.
Another basis on which EPA could make more
effective use of its land use authority is to relate
the location of sources as suggested above to particular
meteorological conditions. Information as to prevailing
winds in a particular area, the strength of those winds,
frequency of rainfal1, average humidity and other meteorological
factors may be a substantial determinant on the impact of
a particular polluting source on the environment surrounding
that source. For example, when it can be established that
prevailing winds in a given area are out of the west, it
makes more sense to locate a new copper smelter or incin-
erator at the east edge of a town rather than at the west
edge, all other factors being equal.
d. New.Source Review. In implementing the
new source review requirements of Section 110, the location
of sources could be related to air quality control. The
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most obvious and common method for dealing with the review
of polluting sources is to require a permit from the local
air pollution control agency before construction or
operation may be undertaken. This would, require identifica-
tion of the kinds of sources for which permits will, be
required as well as some delineation of the standards to
be applied in determining whether and under what conditions
to issue a permit.
The procedure and criteria for issuing permits
can vary substantially. For example, new source review
could be limited to simply reviewing a proposed new source
to assure that any applicable emission or performance
standards will be complied with and construction will not
violate applicable air quality standards including the
significant deterioration standard. Such a procedure may
or may not take into account matters of location and land
use.
On the other hand, new source review could
readily combine consideration of air quality standards
and emission and performance standards with land use con-
34 /
siderations as suggested above. The basic issue facing
34/
See supra, pp. 41 e_t seq.
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EPA in determining the best approach to new source review
is the extent to which EPA will permit local air pollution
control agencies to simply react to initiatives of builders
and developers of polluting sources or will require- local
air pollution control agencies to take some affirmative
steps in guiding or channelling development of polluting
sources.
A simple permit procedure reviewing new sources
for consistency with national air quality standards and
performance standards may do little more than authorize
construction of polluting sources on a first-come, first-
served basis. New sources which meet relevant performance
standards would be permitted to be constructed and operated
until such time as those sources use up the allowable
emission limitations before the national ambient air-
quality standards or the significant deterioration standard
prohibit introduction of further pollutants. At the other
extreme, EPA might require local air pollution control
agencies to identify the kinds of development which, are
likely to come about or be required in the indefinite
future and to prepare a plan designating the most appropriate
sites for various types of new sources within the area
subject to jurisdiction of the agency. Somewhere in
between these two extremes could fall the implementation
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ot' a program sueh as omission density zimimi or a mure
refined districting program which would identify areas
where given levels of pollution would be permitted without
necessarily designating the type of development which would
be permitted within those' limits.
e. Controls Over Waste Products From Air Pollution
Control Technology. Sources of air pollution which utilize
various kinds of control technology may in many instances
accumulate large quantities of materials which have been
removed from stack emissions and which must be disposed of.
For example, incinerators and power plants with stack
precipitators and devices for removing sulfur dioxide may
well accumulate large quantities of fly-ash particulates
and various sulfur compounds. It apparently has not been
the practice of EPA to give substantial consideration to
the question of how air pollution sources can dispose of
these solid wastes. Although there is no specific authority
under the Clean Air Act authorizing EPA to impose conditions
on operators of air polluting sources, it must be recognized
the Clean Air Act is but one of a number of environmental
protection and control acts administered by EPA.
There would seem little question implementation
of a permit program with respect to new sources would in-
clude authority to impose reasonable conditions in a permit
relating to the subject matter of the permit. Operators
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of polluting sources are also required to comply with any
applicable provisions under the Water Pollution Control
Act or other-environmental programs which may be applicable
to the disposal of^solid or.liquid wastes. Since it is
compliance with Clean Air Act requirements which leads to
the necessity of .disposing:of wastes, the imposition of
conditions in a permit requiring the operator of the
source to dispose of.any waste products resulting from
the employment of air pollution control technology in a
manner consistent with the Water Pollution Control Act or
other applicable environmental program should be sustainable.
If the operator-of an air, pollution source fails to comply
with any other applicable-disposal requirements, it would
not be unreasonable to require the shutdown of operation
of the source until such time as the operator disposes of
waste materials in a manner consistent with other.applicable
federal laws.
C. Performance Standards.for New and Existing Stationary
and Hazardous .Sour ces . .
1. CurrentsRequ-latorv- Program. In addition to
its.authority to establish national ambient air quality
standards and approve state implementation plans to achieve
and;maintain those standards, EPA is charged with establishing
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"standards of performance" for new stationary sources of
air pollution such as power plants, incinerators, smelters,
35 /
Portland cement plants and other such sources. Whereas
the air quality standards are designed as a limit on the
amount of given pollutants to be permitted in the air
in a given area, emission standards are limitations on the
amount of pollutants which may be discharged from a specific
source.
EPA is also responsible for developing national
36J
emission standards for hazardous air pollutants. When
a hazardous pollutant has been identified and national
emission standards are issued, no person may emit that
pollutant anywhere in the United States in violation of
the standard. Thus far, EPA has identified and proposed
37 /
standards for asbestos, beryllium and mercury.
All other new and existing sources of air
pollutants are subject to performance standards established
pursuant to Section 111 of the Act with the standards being
based on the degree of emission limitations which can be
35 /
36_/
37 /
Clean Air Act §111.
Id. at §112.
40 C.F.R. 61, 38 Fed. Reg. 8820, April 6, 1973.
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achieved by using the bk'st emission control system
which has been adequately demonstrated taking into
38 /
account the cost of achieving the reduction in emission's.
After EPA has established performance standards for new
sources or emission standards for hazardous air pollutants,
each state may develop and submit to EPA a proposed pro-
_39/
cedure for implementing' and enforcing' such standards.
Such a procedure will normally involve use of a permit
system requiring a person seeking to construct a facility
covered by the standards to obtain a permit before com-
mencing construction or operation of the source. If EPA
finds the proposed state procedure is "adequate" EP7£V is
to delegate its authority to the state to implement and
38i/
Clean Air Act §111(a)(1). Performance standards
have been issued for a number of sources including
fossil-fueled steam generating plants, sulfuric
and nitric acid'plarits';' incinerators and Portland
cement plant's. 40 C.F.R. 60, 36 Fed. Reg. 24876,
Dec. 23, 1971. These standards' specify emission
limitations fof particulates, sulfur dioxide nitrogen
oxides and su'lfuric acid mist as well as limits oh
visible emissions.
Clean Air Act §lll(c) arid §112(d).
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40 /
enforce the performance standards.
2. Locational Factors in Siting of Sources.
EPA's current regulations for control of emissions from
polluting sources require the removal of pollutants or the
limitation of the amount of pollutants emitted into the
11_J
atmosphere. These regulations can have an impact on
land use as they may determine that a particular source
may or may not be built. However, the regulations deal
solely with the technology for removal or reduction of
emissions from stacks and matters of land use are not taken in
consideration in determining the type of technology to be
utilized. It has been argued that a variety of other possible
40 /
In addition to programs for control of emissions
from new sources EPA is to prescribe regulations
establishing a procedure similar to that provided
under Section 110 (state implementation plans) pur-
suant to which each state is to submit to EPA a plan
for establishing emission standards for existing sources
(as opposed to new sources) for any air pollutant for
which air quality criteria have not been issued but
to which a performance standard under Section 111(b)
would apply if the existing source were a new source.
Such a plan must also provide for implementation and
enforcement of such standards. In the event a state
fails to submit a satisfactory plan to implement and
enforce-emission standards for existing, sources,
Section 111(d) authorizes EPA to prescribe a plan for
any such state.
4i_y
See 40 C.F.R. 61, 38 Fed. Reg. 8820, April 6, 1973,
and 40 C.F.R. 60,36 Fed. Reg. 24876, December 23, 1971.
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techniques could be utilized to reduce the impact of
particular polluting sources including the scattered siting
of stationary sources over wider areas, utilization of
taller emission stacks or intermittent controls (e.g.,
operating a polluting source only during periods of high
wind velocity so that pollutants will be quickly dispersed),
or the location of a- source in particular areas which' can
absorb greater emissions because of atmospheric dispersion
characteristics of the areas.
Existing regulations with respect to performance
standards for stationary or hazardous sources do not take
into consideration, the ddffierences in meteorologica-1
or topographical conditions in the area in which a particular
source may be located. For example, the impact on the
environment and' on, the human population of a coal-fired
electric generating station,, both from the point of view
of particulates and sulfur oxides, may be entirely different
depending on the location of the power plant. Wind and
moisture characteristics of different areas vary greatly
depending cn factors such as p,roximity to large bodies of
water, topography, relationship of the area to the prevailing
wind currents as well as others. Thus, the impact of
emissions from a source located in a valley where winds
tend to be light and/or the humidity tends to be high
may well pose a more substantial threat to the environment
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in the area of that plant than if the plant is located
in an open and drier area where wind currents tend to be
stronger.
The topography also plays a part. The location
of a polluting source in an area such as Los Angeles
which is subject to thermal inversions because of the
topography of the area is likely to have a more serious
impact on the surrounding environment than if that source
is located on a high plateau or in a broad flat open area.
Of course, the topography and meteorology of a particular
area are related so it may be difficult in many situations
to isolate one factor from another in trying to determine
which factors were worthy of greater consideration.
Furthermore, proximity of sources to population concentra-
tions would also appear an element which might be taken into
consideration in developing emission standards.
Section 111(a)(1) provides that the term "standard
of performance" refers to a standard of emissions which
reflects "the degree of emission limitation achievable
through the application of the best system of emission
reduction which (taking into account the cost of achieving
such reduction) the Administrator determines has been
adequately demonstrated" (underlining added). In order to
properly take into account the cost of achieving emission
reductions one must look not only to the cost of the
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technology in relation to the benefits to be achieved in
its use, but also to the cost to a community of implementing
j particular standard of performance.. This cost would be
measured not only in terms of the dollar impact on Llio
..-idustry or other source of installing the control tech-
nology but also in terms of the costs imposed on the
surrounding environment by emissions from the polluting
source.
The costs associated with the impact of emissions
from a particular source on the environment will vary greatly
depending on the land use patterns of the surrounding
area. A determination can be made of the relative costs
of requiring various levels of pollution control with
respect to particular types of sources and the are/a sur-
rounding such sources. If areas with particular meteorological
->r topographical condition's can be identified which will
have a substantially greater ability to absorb polluting
emissions without substantial damage to the surrounding
environment, it may well be that standards of performance
can take, into account the varying meteorological and
topographical conditions.
Section 112 dealing with hazardous air pol-
lutants does not contain the same language with respect
to cost as is found in Section 111. However, in Section
112(b)(1)(B) it is provided that "the Administrator shall
establish any such standard at the level which in his
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judgment provides an ample margin of safety to protect the
public health from such hazardous air pollutants." This
standard would again appear to leave a degree of flexibility
with EPA to determine when a particular pollutant may be
hazardous to the public health. Whether or not emissions
from a particular plant are hazardous could again depend
on the particular meteorological and topographical conditions
in the area as well as the proximity of the source to human
habitation or agricultural areas.
It may also be feasible to develop performance
standards which may require operation of a polluting source
in different ways depending upon particular conditions at
any given point in time. Thus, a plant operating in an
area which is subject to strong wind currents in a pre-
vailing direction may well be subject to one aspect of a
standard applicable when winds are in fact blowing in the
prevailing manner. However, if winds shift to another
direction the standard of performance may require closing
down a plant to avoid danger to some particular area.
In addition to factors such as meteorological
conditions, topography or proximity to population concentra-
tions, attention to the location and proximity of one
polluting source to another may also be advisable since the
manner in which pollutants will react with each other may
affect ait quality. For example, a given level of emissions
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from a copper smelter and a coal-fired power plant when
taken individually may not cause the kind of damage to
the surrounding environment as would the location of those
two sources in close proximity to each other. Where the
plants are in close proximity, the emissions from the
smelter whan combined with the sulfur oxides or particulates
from the power plan;t might produce reactions of pollutants
which would be more damaging than the individual pollutants
by themselves.
Standards might be developed which take proximity
of sources into consideration. For example, the emission
standard for a copper smelter with no other polluting
sources within a radius of one half mile may not be- quite
as stringent as the standard' for that same smelter if another
source emitting a pollutant which will react with emissions
fr,om; the smelter is close by. The advisability of
developing standards along this line would, of course,
depend on the identification of pollutant reactions which
would warrant special treatment.
Effective implementation of performance standards
base,d on land use conditions as well as control technology
will require land use controls:. Thus, if a utility obtains
a permit to construct a coa-l-fired power plant in a
particular area because meteorological and topographical
conditions in the area are such that a somewhat greater
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amount of emissions can be tolcratod than would bo true
under other circumstances, the agency issuing the permit
ought have sufficient authority over land use to preclude
future development which might affect or be affected by,
or might provide emissions which might react with, emissions
from the power plant.
Under Section 111(c) and 112(d), EPA is to
approve state procedures for implementing and enforcing
standards of performance for new sources or for hazardous
air pollutants from stationary sources if EPA finds the
state procedure is "adequate." If the air pollution
control agency has no direct influence or control in land
use decision-making processes, it would essentially lead
to a first-come, first-served administration of the permit
program as the control agency would issue permits to the
first parties applying who would meet applicable air
quality standards but would reject later applicants because
the standards could no longer be met.
On the other hand, if emission standards are
developed which include consideration of land use elements,
state programs which do not provide sufficient controls
over land use would be inadequate. This might require
the local agency to undertake land use and growth studies
on its own to enable it to provide some direction to development
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or it could involve a form of coordination between the
air pollution control agency and other existing relevant
planning and land use control agencies. While this
coordination could take various forms, the basic idea
would be to prevent any land development which could result
in conflicts with air pollution control programs.
Similarly under Section 111(d), EPA could require states
submitting plans for implementation and enforcement of
emission standards from existing stationary sources to
contain sufficient land use control elements to implement
any land use aspects of emission standards.
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CHAPTER IV
EPA AUTHORITY TO IMPOSE LAND USE CONTROL REQUIREMENTS
UNDER THE FEDERAL WATER POLLUTION CONTROL ACT AND MARINE
PROTECTION. RESEARCH AND SANCTUARIES ACT
Efforts on the part of the federal government
to deal with problems of water pollution go back to the
19th Century. The Rivers and Harbors Act of 1899 required
a permit from the Army Corps of Engineers before any refuse
(other than storm water runoff) could be discharged into
any navigable waterway of the United States or any tributary
thereof. With the rising demand for protection of
the environment in the decade of the 1960's, a number of
water quality improvement laws were enacted culminating
with the Federal Water Pollution Control Act Amendments of
_2_/
1972 which replaced previous water pollution laws and
provided a more comprehensive program for water pollution
control and abatement.
Under the 197 2 law, EPA is to attack the problem
of water pollution by developing water quality standards
and limitations on permissible effluents which may be
discharged into the nation's waters. States are to strive
LJ
Rivers and Harbors Act of 1899, §13. See United States v.
Republic Steel Corp. 362 U.S. 482 (1960).
Pub. L. No. 92-500, 86 Stat. 816 (October 18, 1972),
33 U.P.C.A. §§1251 et seq. (hereinafter sometimes
referred to as the "Water Pollution Control Act."
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to achieve the standards and limitations l>y <.U?v i h liuj plan;)
and programs for administering and enforcing the water
quality and effluent standards, but if they fail to do so,
EPA will undertake enforcement measures. EPA also is-
authorized to provide funds for research, development and
implementation of programs to implement the Water Act, for
the administration o.fi anti-pollution programs, and for the
construction of waste water treatment works. Grants for
anti-pollution programs are conditioned on EPA's approval
of a program for the prevention, reduction and elimination
of pollution. Grants may be made for treatment works
only if they are in conformity with applicable state
standards and plans.
The 197 2 Amendments also provided for a
National Pollutant Discharge Elimination System (NPDES).
All point sources discharging pollutants into navigable
waters are required to have a permit issued either by a
state under an EPA-approved NPDES program or by the EPA in
those states which have no such program. Permitees
must be found to be in compliance with all applicable
standards.
A. Water Pollution Control Grants
1. Pollution Control Programs. Pursuant to
Section 106 of the Water Pollution Control Act, EPA is
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authorized to make grants to states and to interstate
agencies to assist them in administering programs for the
prevention, reduction and elimination of water pollution.
Grants made under Section 106 are made on condition the
state files a report of the current status of its pollution
control program and "such additional information, data,
_j_y
and reports as the Administrator may require." The
state must also submit a program for control of pollution
and there must not be in effect any federally assumed
4 /
enforcement as defined in Section 309 of the Act.
The conditioning authority in Section 106
is somewhat more'narrowly defined than is the case under
Section 105 of the Clean Air Act which authorizes EPA
to make grants on such terms and conditions as it deems
necessary. However, EPA is authorized to require "such
additional information, data, and reports as the administra-
tor may require," and pursuant to this authority, EPA
could require states to give some consideration to how
land use controls might be utilized to carry out the state's
pollution control program. In addition, the report of the
Water Pollution Control Act, §106(f)(l).
Id. at §106(f)(2) and (3). Section 309 permits EPA to
undertake enforcement of Water Pollution Control Act
standards and permit conditions where states fail to
take appropriate action to halt violations.
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Senate Committee on Public Works indicates that one of
the elements introduced to implement the new amendments
is the development of "controls for locating new discharge
_i_y
sources." Continuing on, the report states:
In addition to fiscal and other basic
program requirements, the bill requires
as a condition to Federal assistance
compliance with-elements essential to a
high level ,of performance in State water
pollution control programs. These elements
include monitoring water quality, reviewing
and regulating the location of new sources
of discharge, setting priorities for waste
treatment works construction, and pro-
cedures to assure non-degradation of
water quality and, to assure no altera-
tion of the quality of any waters which
meet the objectives of this Act.
Thus, it is likely EPA could successfully impose conditions
requiring states to have available adequate land use controls
to regulate development which may affect water pollution
before a grant ,would be made.
2. Construction of Treatment Works. Grants
for publicly owned treatment works may be made by EPA
pursuant to Section 201(g) of the Act. Section 204 out-
lines a number of conditions which must be met prior to
approving any grant for publicly owned treatment works
which include, among others, the following:
5 /
S_. Rep. No. 92-414, 92nd Cong., 1st Sess. 19-20 (1971)
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1. The works are included in any applicable
areawide waste treatment management plan
pursuant to Section 208.
2. The works are in conformity with any
applicable state continuing planning process
under Section 303.
3. The works have been certified by an
appropriate state water pollution control
agency as being entitled to priority
over other works in the state pursuant
to any applicable state continuing planning
process pursuant to Section 303.
4. The size and capacity of the treatment
works relates directly to the needs
be served by the plant including sufficient
reserve capacity as approved by EPA. 6 /
In addition to the conditions set forth in Section 204,
before any publicly owned treatment works may be operated,
it must obtain a permit under the National Pollutant Dis-
charge Elimination System. As discussed in a later portion
of this report dealing with the NPDES system, a variety
of conditions may be imposed on the issuance of a permit
which can effectively require imposition and implementation
of stringent land use controls by the public body seeking
_z_y
to obtain funds for construction of a treatment plant.
a. Grant Conditions. May EPA impose conditions
on construction grants which require state or local agencies
6 /
Water Pollution Control Act at §204(a)
JZ_/
See infra, pp. 111-118.
-------
-66-
to adopt and implement land use control programs for the
area to be served by the waste treatment plant? If
Section 208 or Section 303 plans are applicable to the
particular treatment plant for which a grant is being sought,
it would seem clear that conditions requiring an applicant
to undertake such planning and control programs as are
required under either of those plans could also be* imposed
as a condition to obtaining any grant under Section 201(g).
However, Section 204(a) conditions the approval
of grants to conformity with a Section 208 or 303 plan
only if there is "any applicable" plan. If no such plans
have been developed or approved, it would not appear EPA
is precluded from approving a construction grant. More-
over, the lack of such plans would not appear to preclude
EPA from imposing conditions requiring at least some considera-
tion of land use controls and factors prior to authorizing
a grant.
Section 204(a)(5) provides a grant may not be
approved unless EPA determines that the size and capacity
of the proposed treatment plant relate directly to the
needs to be served by the plant including sufficient reserve
capacity. Without adequate information and projections
as to the type of growth and development occuring or likely
to occur in an area to be served by a proposed treatment works,
-------
-67-
it may not be possible for EPA to make a determination
that the size and capacity is sufficient. Thus, it would
seem clear EPA has the authority to require an applicant
to furnish information concerning the kind of development
presently existing in an area and the growth and develop-
ment which is projected for that area.
The question then arises as to whether pur-
suant to grant conditions EPA can require the public
body seeking the grant to have sufficient land use and
development controls so as to enforce a growth plan in
the area to assure that the treatment plant capacity is
not overloaded. Arguably, if no Section 208 or Section 303
plans are applicable, EPA would have no such authority as
the Act does set out conditions and limitations on
approving grants and there is no provision specifically
authorizing EPA to condition a. grant to the exercise of
power by the applicant to control growth and development
in the area to be served by the treatment works.
However, before any publicly owned treatment
works may discharge any effluents into navigable waters
of the United States, a permit under the NPDES program,
is required. As discussed later in this report, NPDES
permits may impose conditions on public bodies owning
treatment works requiring them to have and to exercise
-------
-68-
various kinds of land use control enabling them to im^
plement and enforce growth plans for their particular
_a_y
areas. Since the capability of exercising growth and;
development control can be made a prerequisite to opera-
tion of a plant to be constructed with a grant from EPA,
there would appear to be a sound basis for concluding that
the construction grant itself could be conditioned along
the same lines as the NPDES permit could ultimately be
conditioned.
b. Legislative History. Considerable concern
is found in the legislative^history for the need to develop
alternative sewage disposal, systems including land disposal.
In discussing Section 201, the report of, the Senate Public
Works Committee states:
The Committee has, therefore, included
a requirement that Federal assistance
for the construction of waste treatment
facilities must require, where appropriate;
practices which will recycle and reclaim
water and provide for the contained or
confined disposal of pollutants. This
bill would establish a policy in concert
with the fundamental ecological principle
that, to the extent possible, all
materials should be returned to the
cycles from which they were generated.
Properly managed, this means pollutants do-
not escape or migrate to cause degradation
of the water, air or land environment. 9 /
J_/
See infra, pp. 111-118.
JLJ
S. Rep. No. 92-414, supra note 5/ at23-24.
-------
-67-
it may not be possible for EPA to make a determination
that the size and capacity is sufficient. Thus, it would
seem clear EPA has the authority to require an applicant
to furnish information concerning the kind of development
presently existing in an area and the growth and develop-
ment which is projected for that area.
The question then arises as to whether pur-
suant to grant conditions EPA can require the public
body seeking the grant to have sufficient land use and
development controls so as to enforce a growth plan in
the area to assure that the treatment plant capacity is
not overloaded. Arguably, if no Section 208 or Section 303
plans are applicable, EPA would have no such authority as
the Act does set out conditions and limitations on
approving grants and there is no provision specifically
authorizing EPA to condition a grant to the exercise of
power by the applicant to control growth and development
in the area to be served by the treatment works.
However, before any publicly owned treatment
works may discharge any effluents into navigable waters
of the United States, a permit under the NPDES program,
is required. As discussed later in this report, NPDES
permits may impose conditions on public bodies owning
treatment works requiring them to have and to exercise
-------
-68-
various kinds of land use control enabling them to im-
plement and enforce growth plans for their particular
_s_y
areas. Since the capability of exercising growth and
development control can be made a prerequisite to opera-
tion of a plant to be constructed with a grant from EPA,
there would appear to be a sound basis for concluding that
the construction grant itself could be conditioned along
the same lines as the NPDES permit could ultimately be
conditioned.
b. Legislative History. Considerable concern
is found in the legislative history for the need to develop
alternative sewage disposal systems including land disposal.
Xn discussing Section 201, the report of the Senates Public
Works Committee states:
The Committee has, therefore, included
a requirement that Federal assistance
for the construction of waste treatment
facilities must require, where appropriate,
practices which will recycle and reclaim
water and provide for the contained or
confined disposal of pollutants. This
bill would establish a policy in concert
with the fundamental ecological principle
that, to the extent possible, all
materials should be returned to the
cycles from which they were generated.
Properly managed, this means pollutants do
not es.cape or migrate to cause degradation
of the water, air or land environment. 9 /
infra, pp. 111-118.
No. $2-414, supra note 5/ at-23-24.
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-69-
Land disposal systems to be effective must
be designed and managed so that sewage
is applied to the land at control rates,
concentrations and proportions of pol-
lutants, so that the character of the land
and the plant life are not overtaxed or
otherwise degraded. Properly designed
land disposal of pollutants must include
pretreatment to remove'.industrial and tox
materials. 10 /
The report of the House Committee on Public Works indicates
a similar concern for research as to land disposal techniques.
In light of this history and the language in Section 201(g)
requiring recipients of funds to demonstrate that alterna-
tive waste disposal techniques have been studied, it would
appear EPA would have adequate authority to impose conditions
with respect to disposal of sludge and other materials
from the plant constructed with the funds. The authority
might go so far as to require the recipient to have adequate
authority to designate land for disposal of effluents in
accordance with the results of its study and evaluation
of alternative waste management techniques.
Whether EPA would want as a policy matter to go
so far as to impose conditions at the grant stage similar
10_/
Id. at 25.
H. R. Rep. No. 92-911, 92nd Cong., 2d Sess. 87 (1972).
-------
-70-
to those it might impose at the permit stage is at this
point an open question. Thus, it may be preferable, in
situations whefce a planning process is not underway or
approved, to condition grants to the undertaking of a
planning program and the development of a control strategy
which will ultimately provide the mechanism for assuring
that treatment works constructed under federal grants are
not overloaded. Following this approach, the agency in-
volved would have an opportunity while construction is
underway to make appropriate studies of the area under
its jurisdiction to determine ultimate needs for sewage
treatment capacity in light of projected growth and
development and to come up with procedures for controlling
growth and development so water quality and effluent
standards can be achieved and maintained.
Another issue which has been raised by some
is whether construction grants may be conditioned on
an applicant's showing of compliance with standards and
criteria developed under other environmental control laws
administered by EPA. Where the operation of a treatment
plant may be subject to other environmental control laws,
such as any odor requirements developed under the Clean
Air Act or any applicable solid waste disposal guidelines
under the Solid Waste Disposal Act, a good argument exists
that EPA has authority to condition its grant to require
-------
-71-
compliance with such other applicable environmental
controls. A waste water treatment plant can create odor
problems and in removing waste material from waste water,
solid and liquid wastes will have to be disposed of in
some fashion. Thus, in operation of a treatment plant,
it is possible standards developed under other pollution
control acts will come into play because of construction
and operation of the treatment plant under the Water
Pollution Control Act. As the various acts would be related
by virtue of the operation of the treatment plant, there
would be a sound argument that conditions could be imposed
requiring compliance with other environmental control
laws which would come into play with respect to various
operations of the plant.
A Congressional purpose to bring some degree of
coordination between environmental programs in the control
of water pollution can be seen in the provision of
Section 511 (c) (1) of the Water Pollution Control Act.
This section requires the preparation of an environmental
impact statement pursuant to the National Environmental
12_y
Policy Act with respect to the grant of funds for a
12/
42 U.S.C.A. §4331, hereinafter referred to as "NEPA."
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-7 2-
wastewater treatment plant and the issuance of a new source per-
mit under" the* National Pollutant Discharge Elimination System.
Except for these two matters, environmental impact statements
under NEPA are not required for EPA actions under the
Water Pollution Control Act.
Although NEPA itself does not confer on EPA
specific authority to impose environmental controls not
already found in various other environmental control laws,
the fact an environmental impact statement is required under
NEPA with respect to waste water treatment plant grants and
NPDES permits while not required with respect to other
actions of EPA under the Water Pollution Control Act is a
clear indication of Congressional intent that EPA give some
consideration to the impact of its exercise of authority
in these two areas in a manner transcending the scope of
Water Act standards and objectives .alone. With this intent
in mind, it would seem incongruous if the authority of EPA
to condition construction permits was so narrowly interpreted
as to require an analysis of the overall environmental
impact of the grant while precluding EPA from implementing
standards developed pursuant to its authority under other
pollution control acts by conditioning grants to assure
implementation of those standards. This is particularly
12/
See infra . pp. 109 et seq.
-------
-73-
true where the grant will lead to operation of a
treatment plant which may run into conflict with other
pollution control programs.
Whether an applicant could be required to be
in compliance with aspects of other environmental control
laws not related to the operation of the plant is another
question. For example, could EPA condition a waste
treatment plant construction grant on the development by
the public body of a plan for the review of new sources
under the Clean Air Act where there is no particular relation-
ship between the operation of the waste treatment plant
and whatever new source standards might be developed under
the Clean Air Act? As Congress has deemed it advisable to
enact two separate pieces of legislation dealing with
water and air pollution, unless there is some direct relation
between the operation of a sewage treatment plant and air
quality standards which would be applicable to that plant,
EPA would be stretching its authority considerably to try
to attach conditions to a water treatment plant construction
grant which concern unrelated aspects of air pollution
or other environmental control programs.
B. Areawide Waste Treatment Management Plans
Congress authorized an intensive effort to deal
with water pollution problems in areas with serious pollution
-------
-74-
control problems.-? by directing EPA to develop and.publish
guidelines for the identification of those urban-industrial
or other areas where substantial water quality control
14 /
problems may: exist. An.areawide waste treatment manage-
ment planning process and plan for these areas is to be
developed (hereinafter.called,an "areawide plan"). It
anticipates municipal.and. industrial waste treatment needs,
establishes construction priorities, regulates the location,
modification and construction of any waste treatment facility
in the area, and enforces; procedures and methods to control
15 /
various nonpoint sources of pollution.
Once-an areawide plan is approved, permits under
the NPDES system may not be issued if they would conflict
with the plan. Likewise, once the plan is approved, EPA
may not make ...grants for construction of municipal treat-
ment works unless it is determined, such works are included
JJL/
in the areawide plan. The federal government,may provide
funds to assist in developing and operating a continuing
14 /
Water Pollution Control Act at §208.(a) .
15 /
Id. at §208(b).
16_y
Id. at §208(e).
17 /
Id. at §208(d).
-------
-75-
18
areawide planning process.
The importance of this section of the Act and
the intention that it encompass the coordination of land
use matters with environmental control is evidenced by the
report of the Senate Committee on Public Works accompanying
the bill originally passed by the Senate which is substantially
in the form finally enacted:
Perhaps the principal cause of inefficiency
and poor performance in the management of
waste in the metropolitan regions is the in-
coherent and uncoordinated planning and manage-
ment that prevails in many areas of the Nation.
Adjacent communities and industries are under
no mandate to coordinate land use or water
quality planning activities. This results
in poor overall performance and the prolifera-
tion of many direct and indirect discharge
sources into receiving waters. Such diffuse
and divergent programs not only intensify
pollution problems but they prevent the use of
economies of scale, efficiency of treatment
methods, and, most importantly, coherent,
integrated and comprehensive land use manage-
ment .
Consequently, the Committee has included
in the bill a mechanism that would establish
planning and management capability throughout
. each State. The mechanism is initiated by the
Administrator who would set forth definitive
criteria on those interstate and intrastate
areas for which regional waste treatment
management plans are to be developed.
18/
Id. at §208(f).
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-76-
A regional planning mechanism will be in-
effective if it does not provide an effective
means of regulating all sources of pollutants
within the region, and if it does not provide
an overall management mechanism to assure im-
plementation of any plan developed.
* ~ *
Uncontrolled growth and expansion and
competition among units of government will
be reduced if effective environmental
controls are to be imposed. 19/
1. Necessity of Areawide Plan. Although there
are provisions in the Water Pollution Control Act making
permits or grants subject to consistency with any existing
areawide plan, the question arises as to whether it is
necessary under the Act to prepare areawide plans as pre-
conditions to any other activities under the Act. The
language of Section 208 is drafted in a mandatory form in
that EPA "shall" publish guidelines for identification of
areas having substantial water quality problems, and the
governor of each state "shall" identify each such area
and "shall" designate the boundaries of each area and an
20/
organization capable of developing an areawide plan.
19 /
jS. Rep. No. 92-414, supra note 5, at 36-37.
20_/
However, there is no mechanism in the Act for any type
federal enforcement of the apparent requirements. In
contrast, Section 303 requires states to adopt water
quality standards applicable to intrastate waters; if
-------
-77-
NPDES permits and construction grants must be
in conformity with any "applicable" areawide plan, but if
there is no plan there is no need to comply with a plan
and a construction grant or permit may be issued.. Thus,
Section 208 plans cannot be considered mandatory pre-
conditions to other actions under the Act and the failure
of a state to promulgate areawide plans will not prejudice
its rights under other provisions of the Act.
2. Content of Areawide Plan. Where areawide
plans are developed pursuant to Section 208, the Act enumerates
a number of items which must be included in the areawide
planning process, including the following:
a. Identification of treatment works
necessary to meet anticipated municipal
and industrial waste treatment needs of
the area over a 20-year period with annual
updating, including any requirements for
the acquisition of land for treatment
purposes.
20 /
(cont'd.)
they fail to do so EPA is authorized to promulgate
such standards. Water Pollution Control Act at §303(a).
Also, states are required to have continuing planning
processes under Section 303 and, if they do not, no state
program for issuance of NPDES permits can be approved,
with the result that permits for that particular state
would be issued directly by EPA. Id. at §303(e).
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-78-
b. Establishment of construction priorities
for treatment works.
c. Establishment of a program to regulate the
location, modification and construction of
"any facilities" within the area which may
result in waste discharges and to assure
that industrial or commercial wastes dis-
charged into treatment works meet applicable
pretreatment standards.
d. Identification of measures necessary to
carry out the plan including agencies
to construct, operate and maintain office
facilities required.
e. A process to identify various nonpoint
sourcies of pollution related to construction
activity, mini
-------
-79-
Perhaps the most far reaching provision in
Section 208 is the provision that any areawide plan is to
include a program "to regulate the location, modification
and construction of any facilities within such area which
22 /
may result in any discharge in such area." Taken
literally, this phrase could be interpreted to refer to
regulation of the location or construction of any building,
such as a home or commercial building, which may result in
discharge of wastes into navigable waters. The term
"facilities" is not defined in the Act and there is no clear
indication in the legislative history as to what the term.
was intended to encompass in this particular provision.
Other uses of the term in the Act are in provisions which
23 /
more clearly relate to waste treatment facilities or
other particular kinds of facilities such as research
24 / 25 /
facilities. The term "treatment works" is defined
and the use of the term "facilities" in the same section
with the term "treatment works" would seem to indicate
"facilities" has a somewhat broader meaning than the term
"treatment works."
22 /
Id. at §208(b)(2)(C)(ii).
23 /
E.g., Id.at §201 (d) and (e) and §208 (b) ( 2) (D) .
24 /
Id. at §104(h) (B>.
25_/
Id. at §212(2).
-------
-80-
In light of the broad congressional purpose
in enacting Section 208, there is strong indication
the use of the term "facilities" was intended to encompass
any facility which would result in any discharge in the
navigable waters. This would encompass both municipal and
private sewage treatment works as well as any other point
2&_/
sources of pollution.
3. Potential Control Mechanisms for Areaw.ide Plans.
One method for regulating location of "facilities resulting
in any discharge" would be to coordinate the traditional
zoning, subdivision and planning processes with the area-
wide planning process to limit the amount and type of
development in the area so existing and projected treatment
22L/
works will not be overloaded. Ideally, this could
lead to an optimal planning process whereby growth and
development could be accommodated by sewage treatment
26_y
The term probably was not intended to encompass single
family residential developments or other facilities
which are connected to municipal or private treatment
systems as the term "discharge" is defined in Section
502(12) and (16) to refer to the discharge of pollutants
into navigable waters fr.om any point source.
27 /
Such a process does raise the issue of whether sewage
treatment capacity is designed to meet expected
growth and development or whether growth and develop-
ment are-;limited to avoid overload of sewage treat-
ment capacity. See Golden v. Planning Board of Town
of Ramapo, 285 N. E. 2d 29.1 (N.Y. 1972) and cases: and
authority cited therein at 302-303.
-------
-81-
facilities to the extent permitted consistent with water
quality standards and effluent limitation capabilities,
but this ideal requires a massive coordination of local
planning and zoning controls far beyond what is now found
in most regions.
Somewhat less comprehensive but equally ex-
perimental methods might also achieve the primary purpose
of Section 208. One such method would be a program assigning
a limit on the amount of allowable effluents which may be
discharged from each parcel of land. Such a program would
take into account such factors as the suitability of the
soil for installation of septic tanks, available sewage
treatment capacity and existing water quality in the
area. No person would be permitted to undertake any develop-
ment which would be expected to result in effluents in an
amount greater than the allowable limit. Some flexibility
could be built in by allowing the transfer of effluent
limitations from one parcel to another so a developer in
need of a higher effluent limit than is assigned to his
parcel could purchase or otherwise acquire additional rights
to discharge effluents. This would mean the owner of a
parcel selling his effluent rights would be further limited
or precluded from undertaking any development resulting
in effluents.
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-82-
Such a procedure would not necessarily entail
any particular planning as to what kind of development
would occur at any particular point in the area. Rather,
a developer could undertake a project anywhere land can
be found and sufficient effluent rights accumulated.
However, this process is founded on an assumption (which
may be hard to sustain) that the maximum level of effluent's
which can be accommodated may be discovered and fairly
spread around parcel by parcel. An effective ceiling is
placed on development which may be quite arbitrary. Legal
objections would be ameliorated to some extent by giving
landowners the right to transfer or acquire effluent
rights so each owner would have an opportunity to undertake
development either within the limits assigned to his land
or such other limits as he ca-n acquire. Of course, once
all effluent limits for an area are used up by the first
developers, later development may be precluded or limited.
A Section 208 process could also limit its regula-
tory efforts to those developments which will discharge
effluents directly into waterways and not be concerned
with development which will be connected to municipal or
private sewage treatment system's. Such a process would
proceed on the theory that control of development which
will be connected to sewage treatment systems can be
-------
-83-
handled through the NPDES process and the Section 208
process need only be concerned with effluents not discharged
into such treatment systems. Under such a process, a
developer or operator of any facility discharging directly
into navigable waters, which could include a home utilizing
a septic system, would obtain a permit by filing a statement
regarding the amount of effluents to be generated by the
facility. Permits would be issued on a first-come, first-
served basis so long as all water quality and effluent
standards could be met.
4. Section 208 and Nonpoint Source Pollution.
Another aspect of pollution to be considered in areawide
plans is nonpoint source pollution. Guidelines for the
control of nonpoint source pollution are to be developed
by EPA pursuant to Section 304(e) and areawide plans are to
contain "procedures and methods (including land use require-
28/
ments) " for control of nonpoint sources.1 Nonpoint
controls might be encompassed in any of the programs
suggested above for inclusion in areawide plans although
the greater difficulties in identifying and controlling
nonpoint sources as opposed to point sources may make it
advisable to establish a separate control procedure.
28/
Water Pollution Contrbl Act at §208(b)(2)(G)(H) and (I).
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-84-
One possible procedure would be to establish
standards of performance which various types of nonpoint
sources would be required to comply with. The Section 208
agency could identify the various types of nonpoint sources
requiring exercise of pollution controls and develop
standards and guidelines with which operators of a source
would have to comply. Such standards and guidelines, need
not spell out measures the operator would have to take to
meet the pollution limitations. However, if an operator
fails to meet the applicable standards of performance, the
agency would be authorized to require the operator to cease
operations and/or to take such steps as may be necessary
to end the pollution problem.
A second approach would be to implement a
program requiring the operator of a nonpoint source to obtain
a permit before undertaking any specified activities likely
to lead to nonpoint source pollution. The operator would
be required to outline all steps to be taken to assure that
nonpoint source standards are not violated.
As a part of either of these procedures, EPA
could establish guidelines to assist local agencies in
identifying areas which would not be suitable, either in
general or in some particulars, for nonpoint source develop-
ment. For example, strip mining on certain slopes may
present such nonpoint source pollution problems to warrant
-------
-85-
a general standard forbidding strip mining on any slope
over a certain degree. On the other hand, other farming
or timbering activities may be permitted in such an area
with appropriate precautions.
5. Section 208 Agency. As Section 208 was
enacted for the purpose of providing comprehensive planning
in areas with serious pollution control problems, the
question arises as to what ought to be the relation between
a Section 208 agency and other state, regional and local
land planning agencies. The Act requires the areawide
agency be a "single representative organization, including
elected officials from local governments or their designees.
Many states have established regional planning bodies which
may include elected officials and may meet the requirements
of §208(a)(2)(B). In addition to the Section 208(a)(2)
requirements, an areawide agency must have authority, among
other things, "to carry out appropriate portions of an
areawide waste treatment management plan developed under
30_y
subsection (b) of this section." Absent such
authority, EPA may reject the designation of the agency
until such time as the deficiency is corrected.
29 /
Id. at §208(a)(2).
lo_y
Id. at §208(c)(2)(A).
-------
-86-
Although EPA could presumably ignore the existence
of other land use planning agencies at the state, regional
and local levels to determine if a designated agency, had the
appropriate representation and authority, the scope of
Section 208, as evidenced by the scope of its language
and legislative history, is to provide comprehensive
planning for designated areas. Thus, the Congressional
objective is more likely to be attained if existing state,
regional and local land planning and control agencies are
in some manner coordinated with the Section 208 agency.
If the Section 208-agency is -an existing agency which is
already coordinated to some-extent with other agencies,
this may not be a serious problem. However, there are few
regional agencies in the United States which have the
scope of responsibility and^authority required under Section
208 which are also well coordinated with other state, regional
and local agencies impacting on land use decision making
processes.
With the choice of the areawide agency to develop
and atlminister areawide plans left to the ptates, EPA is
in the position of having to accept or reject the choice
without authority to designate the appropriate agency.
A degree of coordination between the Section 208 agency
and other agencies dealing with land use issues might be
achieved, however, by requiring the Section 208 agency in
-------
-87-
preparing its plan to consult with other state and local
planning agencies and reporting to EPA how the areawide
plan conforms to plans developed by other land use agencies
explaining any inconsistencies together with procedures
for resolving inconsistencies.
C. Water Quality Implementation Plans.
Prior to enactment of the 1972 amendments, many
states had developed water quality standards applicable
to interstate waters within each particular state which
had been approved by the federal government. Under the
prior law, the federal government had established guide-
lines and criteria to assist states in developing the water
quality standards. Each state determined which portion
of the interstate waters within its boundaries would be
ear-marked for particular kinds of use such as drinking
water or industrial cooling. Federal regulations required
that no body of water be classified for a use which resulted
31/
in a lower level of purity than already existed. This
was, in effect, an anti-degradation policy. A second
31/
U.S. Department of the Interior, Guidelines for
Establishing Water Quality Standards for Interstate
Waters (1966) at p. 4, Guideline 1; See Action for
Environmental Quality, EPA (1973) at p. 12.
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-88-
groundrule was that no body of water would be designated
32 /
only for use for waste disposal-
Water quality standards adopted by states prior
to the enactment of the 1972 amendments which were approved
33 /
by EPA are still applicable under the new law. In
addition, states which may have adopted standards applicable
to intrastate waters may submit those standards for approval
34 /
to EPA. States which had not adopted standards for
intrastate waters are to adopt standards and submit them
I5_y
for approval by EPA. If a state fails to prepare
appropriate standards, EPA is authorized to prepare such
36 /
standards and impose them on states. In establishing
such standards, the use and value of waters for public
water supplies, navigation, propogation of fish and wildlife,
and recreational, agricultural and industrial purposes must
all be considered. It is important to note the water
quality standards developed under the 1972 law are applicable
32 /
Id., Guideline 1; p. 5.
33 /
Water Pollution Control Act, §301(a)(l).
34 /
Id. at §301(a) (2) .
35j
Id. at §301 (a) (3).
36 /
Id. at §303(b).
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-89-
to all waters in the United States and not only to inter-
state or "navigable" waters as that term had previously
37 /
been interpreted.
To prevent further degradation of the bodies of
water already subject to a high degree of pollution, states
are also required to identify those waters within their
boundaries for which effluent limitations alone developed
under the Act are not stringent enough to implement the
applicable water quality standards. For such waters the
total maximum daily load of pollutants which may be per-
mitted must be established, with procedures for limiting
effluents to the maximum allowable load consistent with the
38 /
protection and propagation of shellfish and wildlife.
EPA is further required to develop and publish in-
formation on factors necessary to restore and maintain the
chemical, physical and biological integrity of all navigabLe
waters, groundwaters, and ocean waters as well as on what
must be done to protect shellfish, fish and wildlife
and to allow recreational use of various water
37 /
Id. at §502(7) ("The term 'navigable waters' means
the waters of the United States, including the
territorial seas.").
38 /
Id. at §303(d).
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-90-
39 /
bodies.
39 /
Id. at §304(a). Effluent limitations are to be developed
under the 1972 Act which will be based on "application
of the best available demonstrated control technology.
. . (Ld. at §30S(a)(L)} EPA is directed to establish
national standards of performance for new sources within
each of a number of categories specifically listed in the
statute and such other categories as may be included by
EPA. The categories covered by the statute include pulp
and paper miLls, meat product and rendering processing,
sugar processing, textile mills, feedlots, chemical
manufacturing, petroleum refining, various iron, steel and
other nonferrous metals manufacturing and a variety of
other industries. In establishing these federal, standards
of performance for new sources, EPA is to consider the
cost of achieving the effluent reduction any any non-water
quality environmental impact and energy requirements.
(Id. at §306(b))
EPA is also to develop guidelines for determining ef-
fluent limitations for existing sources which identify
the degree of effluent reduction (in terms of the amount
of pollutants and the chemical, physical and biological
characteristics of the pollutants) attainable through the
application of the "best, practicable control technology
currently available for classes in categories of point
sources" and to specify factors to be taken into account
in determining which control measures and practices are
to be applicable to point sources. (Id., at §304 (b)(1))
These factors may include consideration of the cost of
application of technology in relation to the benefit
achieved in the effluent reduction. The degree of
effluent reduction attainable through the application of
"the best control measures and practices achievable" and
control measures and practices available to eliminate dis-
charges are also to be identified. (Ld. at §304(b)(l))
To achieve effluent limitations required by the Act, in-
dustrial pollutant sources are required to apply the "best
practicable control technology currently available" not
later than July 1, 1977 and the "best available technology
economically achievable" not later than July 1, 1983 for
discharges are into the nation's waters. (Id. at §301(b))
Where the industrial pollutant is discharged into a publicly
owned treatment works, the industry must comply with pretreat-
ment standards developed by EPA. (Id.. at §307 (b) ) Publicly
owned treatment works are required to utilize the best
practicable control technology for reducing effluents not
later than July 1, 1983.
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To enforce the water quality standards adopted
under the Act, each state is to develop a continuous planning
40 /
process which is submitted to EPA for approval, if
EPA finds it will result in plans for all waters of the
state which include effluent limitations at least as stringent
as Federal effluent limitations (including national standards
and toxic and pretreatment effluent standards) and any
requirements contained in any applicable water quality standards
in effect under the Act. In addition, the planning process
must include, among other things, adequate implementation
(including schedules of compliance) for new or revised water
quality standards, controls over disposition of all residual
waste from water treatment processing and elements of any
applicable areawide waste management plans developed under
4j_y
Section 208.
Under the regulations promulgated by EPA, the
total state planning process is based on individual water
basin plans which divide individual water basins into segments,
defined as that portion of a water basin the surface waters
of which have common hydrologic characteristics, common
natural, physical, chemical and biological processes and
40 /
Id. at §303(e).
41 /
See Id. at §§301(b), 303(e), 306 and 307.
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-92-
co.nmon reactions to external stresses such as the discharge
of pollutants. Segments are classified as "water quality"
and "effluent limitation" for specific application of water
pollution control measures. A "water quality" segment is any
segment where it is known that water quality does not meet
applicable water quality standards and will not do so even
after application of* federal effluent limitations- An
'effluent limitation" segment is any segment where water
quality either meets or will^meet applicable water quality
42 /
standards after the application of federal effluent limitations.
The water planning process is also required to be
coordinated with other applicable state and local land use
43_/
and natural resources plans'for the basin. No provision
is made in the Act-authorizing' EPA to develop a planning
process if a state-fails to-do so, but the Act does provide
that no state program for issuing permits for the discharge
of effluents may be-approved by EPA is a state does not have
¦44 /
an approved planning process.
4_2_/
40 C.F.R. 130,>§§130.2 'and 130.11, 38 Fed. Reg. 8034,
March 27, 1973.
ii_y
40 C.F.R. §130.22.
44 /
Water Pollution Control Act at §208(a).
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-93-
1. Relationship ol' Water Quality and Land Use.
Que.st.inns of land use are inextricably intorwovon with tho
requirement that plans be developed to implement water
quality standards, as is explicitly recognized in Section
208, for if basin plans do not take land use into consideration,
it will not be possible to effectively implement a strategy
to achieve and maintain water quality standards approved
by EPA.
Although Section 303(e) does not contain the same
kind of language found in Section 110 of the Clean Air
Act specifically authorizing the inclusion of land use
controls in state implementation plans, the conclusion is in-
escapable that land use controls can and should be an element
in Section 303(e) plans. Without the ability to plan and
control where point and nonpoint sources of pollution will
be permitted to operate and where land sites for disposal of
pollutants will be located, achievement of the objectives of
the Act may be impossible. The report of the House Committee
on Public Works in at least two places emphasizes the need
to consider land disposal as one of the techniques for
_45/
dealing with pollution. In discussing Section 201
dealing with construction grants, the report states:
45_/
H.R. Rep. No. 92-911, 92 Cong., 2d Sess. (1972).
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-94-
In arriving at the best pracl. irahlo waste
treatment technology eonsiderat inn must he
given to its full environmonta I impact on
water, land, and air and not simply to the
impact on water quality.
* * ~
In defining "best practicable waste treatment
technology" for a given case, consideration
must be given ; to new or improved treatment
techniques which have been developed and are
now considered to be ready for full-scale
application. These include land disposal,
. . . 46 /
Again, in discussing the provisions of Section 304 relating to
alternative techniques for implementing the Section 301 ef-
fluent limitations, the House Committee repeats the importance
of land disposal techniques:
The Committee intends that the Administrator
shall emphasize land disposal techniques.
If the goal of-eliminating the discharge of
pollutants into.our Nation's waters is to be
achieved, land -disposal of the waste from
treatment works will be necessary. 47/
Control simply over technology employed by point
sources or methods of operation utilized by operators of
nonpoint sources will not provide EPA with an ability to deal
with land disposal techniques, nor will it permit EPA any
control over the proximity of various sources to one another.
One of the purposes in making grants to states to assist
45 /
Id. at 87.
47 '
Id. at 108.
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-95-
in carrying out water pollution control programs was to
assist in development of "controls for locating new discharge
48 /
sources." Implementation of these kinds of concerns must
be through the planning process developed pursuant to Section
303 and EPA must have authority to require states to take a
look at or establish land use or growth plans. Without this
broader review of land development to plan and determine to
some degree the location of point and nonpoint sources of
pollution and alternative land disposal sites, it is highly
unlikely water quality standards can be achieved and maintained.
Congress recognized general effluent limitations
alone might be insufficient to achieve water quality and thus
enacted Section 302 authorizing EPA to develop "water quality
related effluent limitations" which could involve technological
controls "or other alternative control strategies." In
addition, the inadequacy of general effluent limitations
established pursuant to Section 301(b)(1) to implement water
quality standards applicable to particular waters is illustrated
in the Section 303(d) requirement that states identify such
waters, establish a priority ranking and establish the
maximum permissible daily load of pollutants. If EPA approves
the state's identifications, priority rankings and daily
loads, the state must incorporate those into its current
48_/
S_. Rep. No. 92-414 , supra note 5 at 19.
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-96-
implementation plan. The question is then presented as to
what kind of land use controls EPA can require be made part
of a continuing planning process.
2. Possible Land Use Control Elements in Planning
Process
a. Load-Allocation Plans. EPA could condition
its approval of a state planning process on the inclusion within
the process of a mechanism for determining how the maximum
daily load determined pursuant to Section 303(d) will be
allocated among various possible developments. The priority
rankings and daily pollutant loads would have the effect
of establishing a ceiling on the amount of new development
which could be permitted in the particular basin without
violating water quality standards. Failure of a state to
provide this sort of mechanism would leave implementation of
water quality standards mor-e and more to chance. Land use
controls with respect to these areas would be helpful and
could lead to more rational development of an area with
better protection of water quality.
A state could permit new development to use up
whatever pollutant loading is available on a first-come, first-
served basis' by implementing a program of assigning "effluent
rights" to land in the particular area. Building or other
permits would not be issued unless the builder had sufficient
effluent rights associated with his land or was able to obtain
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-97-
sufficient rights from other persons who would sell or
otherwise transfer their rights. Such a process could
effectively limit the amount of effluent discharges but it
would not necessarily result in rational planning or coordina-
tion of development.
b. Water Quality Segments. Programs such as those
suggested above would deal with only a part of the water
quality problem as they would be limited to areas where
effluent limitations are not stringent enough to implement
water quality standards. EPA has already begun to classify
segments of waters into a "water quality" class or an
49 /
"effluent limitation" class depending on whether the
waters meet or are likely after application of effluent
limitations to meet relevant water quality standards. This
classification concept could be refined even further to
provide a number of classifications or segments to which
varying degrees of effluent limitations and/or land use
controls might be required to achieve and maintain designated
water quality standards. For example, in segments having
the severest water quality problems, plans might be required
which would provide a review of all development whether
49 /
See supra, pp. 91-92.
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-98-
resulting in a discharge of pollutants directly into water-
ways or into a sewage treatment system. On the other hand,
in segments where there is little or no problem meeting
applicable water quality standards, plans might provide
for review only of developments requiring NPDES permits.
c. Overall Growth Plans. The approaches suggested
above would involve a close review of development primarily
in areas where water quality problems are most severe.
However, the battle against water pollution may best be
handled by looking not only at problem areas, but also
closely examining all areas. Although water quality at any
particular point may be no problem today, gradual develop-
ment can have a snowball effect resulting in serious prob-
lems before effective action is taken to avoid problems.
The Section 303 planning process is not designed solely to
deal with areas where water quality standards are not being
met. It is also designed to assure that areas where water
quality is not a problem remain that way.
The very purpose of the Act as stated in Section
101(a)(1) is to eliminate discharges of pollutants into
navigable waterways by 1985. This objective cannot be
achieved unless EPA has authority to require states to
comprehensively plan not only for the location of alterna-
tive land disposal sites. Assuring proper siting of such
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-99-
facilities will necessitate control over development in
general. Thus, EPA could require states, as a part of the
continuing planning process, to develop and begin implementa-
tion of programs analyzing growth patterns and expectations
and to develop policies which will guide growth and develop-
ment in such a manner that water quality can be maintained
while sewage disposal problems are adequately dealt with.
Such a program might entail the development of a growth
plan which provides incentives to industry to locate plants
in areas where sewage disposal can be handled without en-
dangering water quality. By dispersing industry, there is
a reasonable likelihood the population will also be dispersed
to some degree possibly relieving the enormous pressures
now being placed on disposal systems in major metropolitan
areas.
d. Land Use Proximity Regulations. Pursuant to
Section 304, EPA is to develop and publish information and
guidelines with respect to the degree of effluent reduction
attainable through application of treatment techniques,
process innovations, operating methods "and other alterna-
tives" for various categories of point sources. One factor
which might be considered is the extent to which proximity
of one source to another affects the degree of effluent
reduction. For example, if two sources near each other
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-100-
disoharge pollutants which whon mixort ciui.tr a reaction
resulting in more harm to water quality than the two in-
dividual pollutants would cause, one aspect of regulations
developed under Section 304 might deal with location of
sources with respect to each other. A state in developing
its planning process could then be required to consider
such^Section 304 regulations.
Location of point, sources in relation to ^particular
uses would also be an important element in development of
effluent limitations under Section 301 and the applicable
guidelines under Section 304. For example, even if construction
of a food processing plant using the best available technology
for control of effluents, would be consistent with water
quality standards and effluent limitations, it still may
not be advisable to locate such a plant adjacent to a bathing
beach or a domestic drinking-water intake. Land use controls
would.be able to deal with these problems resulting from
proximity of land uses.
e. Nonpoint Source:Controls. EPA is also to
develop and publish information and guidelines with.respect
to criteria for identifying, evaluating and controlli.n.g
nonp.oint sources of pollution. Such sources include
agricultural and forestry activities, mining and construction
activities, disposal of pollutants in wells or other subsurface
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-101-
excavations, saltwater intrusion resulting from reduction
in freshwater flow from any cause including extraction of
groundwater, and changes in the movement or circulation of
50/
any navigable waters or groundwaters. Although Section
304(e) does not contain the specific"provision found in
Section 208 that measures to control nonpoint source pol-
lution might include land use requirements, the language
of Section 304(e) is broad enough to encompass land use
controls as one nonpoint source control. EPA is to develop
information including:
(1) guidelines for identifying and
evaluating the nature and extent of non-
point sources of pollutants, and
(2) processes, procedures, and methods
to control pollution resulting from
{enumerated nonpoint sources.] 51 /
No basis is found in the Act or the legislative
history for assuming the failure to specifically refer to
land use controls in Section 304(e) is intended to mean
methods of control developed under the section are to
be any less extensive or effective than methods developed
under Section 208. The legislative history under
Section 208 indicates that in some instances the best pro-
cedure for controlling nonpoint source pollution may be
total elimination of the practice in particular areas although
50/
Water Pollution Control Act at §304(e).
51/
Ibid.
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-102-
control of methods of conducting the practice may be
5 2/
sufficient. The section of the Senate Report relatirig
to Section 304 also indicates the importance of land
management, techniques in controlling nonpoint source
pollution:
Sediment, often associated with agricultural
activities, is by volume our major pollutant,
not only from the degrading effect of the
sediment, but because it also transports other
pollutants. Fertilizer and pesticide runoff
are also maijor agricultural non-point sources.
Poor forestry practices, including indiscriminate
clearcutting, may- also generate substantial
soil erosion problems. The full utilization
of agricultural conservation techniques will
be an important part of control of non-point
sources called for under section [208].
Another phenomena associated with construction
is, of course, the effect of completed projects
upon the hydrologic cycle. One of the common
problems associated with pollution control is
the dramatic increase in storm runoff when the
earth's surface is made impermeable. Thus
highways, buildings, and parking lots all
contribute substantially to the accelerated run-
off of rain water into natural water systems.
The greater volumes and greater velocity produced
cause high rates or erosion and siltation
In addition, highway runoffs often include oil,
rubber particles, lead, asbestos and other
elements or additives deposited on highways
as a result of vehicular traffic. Recent
studies have shown that this source of
pollutants is growing in its magnitude and
deserves prompt attention by the Administrator.52a.
52/
S. Rep. No. 9 2-414, supra note 5 at 39.
5 2a/
Id. at 52-53.
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-103-
EPA has taken, the position that the collection
of runoff from nonpoint sources as in a storm sewer does
not require a permit under the NPDES system. Rather, the
FWPCA is directed at control of discharges of sewage,
53 /
garbage and other refuse. The issue is apparently in
litigation at the present time and if the court rules
against EPA1s position, a permit program for control of
nonpoint source pollution where the runoff is collected at
a particular point would be needed.
Even if EPA's position is upheld, guidelines for
control of nonpoint source pollution are to be developed
under Section 304. Although these guidelines are not
specifically referred to in the definition of a continuing
planning process in Section 303(e), states are required to
provide "adequate implementation, including schedules of
54
compliance, for revised or new water quality standards."
If states are to attain applicable water quality standards,
they will most likely have to find some way to handle non-
point source pollution whether through a discharge permit
system or through a system requiring permits for the under-
taking of any development or activity,,likely to result
53_y
Address of R. V. Zener, Acting Deputing General Counsel,
Water Quality Division, EPA, October 15, 1973, Washington, D.C.
54_/
Water Pollution Control Act at §303 (e) (3) (F).
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-104-
in nonppint source pollution. Such permits, could be
subject to conditions designed to reduce the impact of the
development or activity .as a nonpoint source.
With nonpoint source pollution as serious a
threat as the legislative history indicates, it would seem
incongruous if EPA cQuld develop guidelines for controlling
nonpoint source .pollution under :.Section .304 which could
include land use requirements but not be able to require
states in their planning .processes to implement appropriate
measures to control nonpoint sources. This is particularly
so when in light of the fact that if a Section 20,8 plan is
in existence, land use elements in such a plan must be
55 /
made part of the Sjection 30,3 plan.
D. Clean Lakes
Section 314 of the Act directs each state to
prepare and submit to EPA for approval a classification of
lakes in the state by eutrophic condition, "procedures,
processes, and methods (including land use requirements),
to control sources of pollution of. such lakies, " and .procedures
for cooperating with other federal agencies to restore
'56_/
water quality in such lakes. Where states have submitted
55_y
Id. at §303 (e) (3) (B) .
Id. at §314(a).
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-105-
appiovcd procedures for controlling pollution, EPA is
authorized to grant funds to assist in carrying out
57V
such procedures.
Although this section is mandatory in its
language, if states do not submit a program for lake
pollution control, no sanction appears in the Act other
than ineligibility for funds to carry on a control program.
EPA is not authorized to implement any controls on its
own initiative. However, as states are going to be subject
to water quality standards and will essentially be forced
to implement water quality control programs, many will un-
doubtedly seek to comply with Section 314.
The question then arises as to what sort of
land use controls EPA might require before approving a
state procedure under Section 314. A review of experience
in a few states which have adopted water related land use
programs may be instructive.
58V
1. Washington Shoreline Management Act of 1971.
The Washington Shoreline Management Act of 1971, which
depends primarily on local governments for implementation, is
designed to regulate land use along the shoreline of all
57_/
Id. at §314(b).
58 ,/
Washington Rev. Stat. Ch. 90.58, Water Rights;
Effective June 1, 1971.
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but the smallest waters in the state. Any development
in defined shoreline areas having a market value or costing
more than $1,000 requires a permit before any construction
activity takes place. Such development must be consistent
with planning programs adopted by local governments or the
state where it has adopted any particular program.
Rather than relying on a zoning ordinance to be
adopted by all municipalities, the State of Washington
develops a "master program" for each area covered which
combines land use regulations, maps, performance standards,
descriptive material and a statement of goals and standards.
This program is then implemented by relevant local govern-
ments .
59 /
2. Wisconsin Shoreland Zoning Law. Another
shoreland protection program has been developed in Wisconsin
under the Water Resources Act of 1956. Under the Act, waters
and shorelands in Wisconsin are treated as special management
units. Counties are authorized to enact zoning ordinances
which meet minimum standards for shoreland protection
developed by the State Department of Natural Resources,
but if they fail to do so, the Department is authorized to
impose such regulations. Standards and criteria developed
59_/
Wis. Stat. Ann. Ch. 59.971, 144.26 (Supp. 1970)
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-107-
by the Department are designed specifically to avoid
pollution hazards in such ways as requiring minimum lot
sizes, regulating dredging, filling and grading, and
regulating sewage disposal and water supply systems.
The Department has promulgated a Model Ordinance
which relies in part on standard zoning provisions dealing
with lot sizes, setbacks, cluster developments and other
factors. Shorelands are also divided into three principal
zoning districts:
(1) Conservancy - to protect swamps or
marshes seldom suitable for building
with some permitted uses such as
hunting, fishing, riding, golf, forestry.
(2) Residential - Recreational - shorelands
in which uses allowed in conservancy
districts are allowed along with seasonal
or year round homes and certain recreational
uses.
60/
(3) General Purpose - all other areas.
Although Wisconsin can require that counties adopt a shore-
lands ordinance, enforcement and administration is left to
the counties, the State having no enforcement authority.
si_y
3. Tahoe Regional Planning Compact. Lake
Tahoe is protected by a unique interstate compact under which
60 /
"Wisconsin's Shoreland Protection Ordinance," prepared
by the Department of Natural Resources, Division of
Resource Development, Madison, Wisconsin (December, 1967).
61.J
P.L. 91-148, 83 Stat. 360, December 18, 1969.
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-i im-
six representatives from local governments in California
ana Nevada make up a governing body responsible for develop-
ment of a plan for the long term development of the Lake
Tahoe region. The impetus behind creation of the Tahoe
Regional Planning Agency was the finding that the deep blue
color for which the lake was famous was turning green.
The Agency adopted, a^Land Use Plan in December, 1971 and
later developed a Land Capabilities Map for the entire
basin. The Agency combined the professional judgment of
experts in several fields with computer-based techniques
to analyze data encompassing :59 variables covering topography,
geomorphology, geology, climate, soils, vegetation and
hydrology. A number of other plans for various aspects
of the basin, such as open space, recreation and conservation,
sewer and water systems and .housing have been developed,
and are in various stages of the adoption process.
The Agency is also .authorized to adopt all
necessary ordinances .and regulations to effectuate the
varipus plans. However, the plans and ordinances and
regulations adopted pursuant thereto are enforced by the
respective states, counties and cities in the region as
well as by the Agency.
4. Alternatives for'EPA Consideration. Any of
these three programs could serve as a model for EPA to
approve pursuant to Section 314 provided one agency is
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-109-
responsible for assuring that water quality standards and
effluent limitations are developed and enforced by the
relevant local governments around lakes. Other variations
are also possible which might centralize all authority
in a single agency to deal with lake pollution. Such an
agency might be required to develop a zoning map or master
E^lan which encompasses such matters as lot size, setback
requirements, permitted uses, use of septic tanks and various
other factors to assure that development is appropriately
planned and regulated to reduce pollution from point as
well as nonpoint sources.
Rather than adopting a mapping program, a permit
program could be developed requiring compliance with various
performance standards relating to such matters as runoffs,
soil permeability, beach erosion, dune protection, farming
or lumbering procedures as well as other factors influencing
pollution levels in lakes. While it may be convenient
t.o encompass such a program within a state's Section 303
planning process, there would appear no legal inhibition
to adopting a process whereby standards developed by
a state agency are implemented by the various local
governments surrounding the lake.
E. National Pollutant Discharge Elimination System.
The National Pollutant Discharge Elimination;
System ("NPDES") replaces the system established under the
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-110-
Rivers and Harbors Act of 1899 for the issuance of permits
for discharges into navigable waterways. Under NPDES,
EPA is to issue.permits for discharges of pollutants unless
a state has adopted a permit program approved by EPA
covering navigable waters within its boundaries, in which
62 /
ease the state may administer-the permit program.
Each state must transmit copies of all.applications for
permits to EPA (unless-EPA waives this requirement for any
63j
particular categories of -point sources) and.EPA can prevent
issuance of a permit by objecting within 90 days that
issuance would be inconsistent- with the guidelines and
64 /
requirements of the Act. To date only California,
Oregon, Indiana, Connecticut and Michigan have permit
65_y
programs which have been approved by EPA. Whether.or
not a state has a NPDES permit.program, an applicant.for
a permit must provide a certification from the state that
66 /
the discharge will comply with the standards of the Act.
62 /
Water Pollution Control Act at §402.
63 /
Id. at §402(f).
64 /
Id. at §402(d).
65 / ;
Conference with Stewart>Tuller, Acting Chief, Policy
Section, Permits Policy
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-Ill-
No state permit program may be approved by EPA unless a
continuing planning process to assure compliance with
water quality standards pursuant to §303 is approved and
no permit may be issued if the proposed source would be in
conflict with any applicable areawide waste treatment plan
under §208.
1. Public Treatment Plant Permits. The NPDES
system applies to publicly owned waste treatment plants as
well as to privately owned pollutant sources. However, it
is specifically provided that whenever any condition of
a permit for discharge from a publicly owned treatment plant
is violated, EPA or a state with an approved permit program
may proceed in court to prohibit the treatment plant from
67 /
accepting any new connections of pollutant sources.
Such action could have drastic consequences for it could
effectively halt further development in the area served by
a publicly owned treatment plant unless alternative waste
disposal methods are available. In light of the rather
drastic remedy authorized by §402(h), the issue arises
as to what sort of conditions EPA can require be attached
to permits for publicly owned treatment plants.
67 /
Id. at §402(h).
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-112-
If EPA is issuing permits in states with no
approved Section 303 plan, it must issue permits which
insure compliance with effluent limitations and standards
of performance developed under Sections 301, 302, 306, 307
68 /
and 403 of the Act. Since EPA has authority to prevent
issuance of permits by States pursuant to Section 402(d)(2)
if issuance would be inconsistent with the guidelines and
requirements of the Act, it would seem clear EPA could
condition issuance of a permit on compliance with guidelines
developed under Section 304 and other requirements of the
Act. The legislative history is not clear as to whether
the use of the terms "guidelines and requirements" has any
particular connotation. Water quality standards and effluent
limitations promulgated under various provisions of the
Act are clearly requirements of the Act but such things as
guidelines for control of nonpoint source pollution are not
so clearly "requirements." However, since EPA has authority
to prevent issuance of permits which are outside "guide-lines, "
presumably EPA could condition issuance of a permit on
compliance with nonpoint source pollution control guide-
lines .
69 /
Id. at §402(b)(1)(A).
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Fui'thermore, the provisions of Section 511
requiring environmental impact statements pursuant to the
National Environmental Policy Act with respect to NPDES permits
for new sources are evidence of Congressional concern for a
comprehensive evaluation of the environmental impact of the
issuance of a permit and the operation of a plant pursuant
to the permit. The fact Congress required preparation of
an impact statement would seem to indicate an intehtion
that EPA exercise its authority under the Water Pollution
Control Act and other environmental protection laws to
assure that adverse consequences are avoided to the extent
possible. Thus, conditions imposed in NPDES permits ought
to be such as would be necessary to reduce the adverse
69 /
environmental impact indicated in an impact statement.
70 /
As noted earlier, EPA has taken the position
NPDES permits are not required for nonpoint sources. This
position has some support in the fact that Section 402(a)
authorizes issuance of a permit for the "discharge of any
pollutant, or combination of pollutants." Section 502(12)
defines the term "discharge of a pollutant" as
69 /
This consistency between NPDES permit conditions and
environmental impact statements should also exist
between grants and related impact statements.
See, supra, pp. 71-73.
70 /
See supra, p. 103.
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(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. (Underlining added.)
While the argument that permits for particular nonpoint
sources are not required may have some support, much
runoff from nonpoint sources eventually collects in a
culvert, sewer or some other collecting system from which
it may enter navigable waters. At that time the nonpoint
source has become a point source for which a permit would
appear to be required. Implementation of nonpoint source
guidelines could be achieved if EPA would refuse to issue
a permit for the discharge from the collecting system
if sufficient controls are not imposed by the responsible
agency to assure that nonpoint source guidelines are applied
by the various sources adding pollutants to the collection
system.
Of probably greater concern, however, is the
kind of conditions EPA can require in permits for municipal
waste treatment plants. One of the principal contributors
to the problem of water pollution in the United States is
the municipal treatment plant which is overloaded and
cannot adequately process all of the sewage delivered to
the plant. As a result, much raw, untreated or partially
treated sewage is discharged into navigable waters. Much
of this problem is caused by the rapid, unchecked develop-
ment of urban and suburban subdivisions and housing developments;
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which in many instances ace located and designed to maximize
a developer's profit rather than to fit into a rational
and orderly plan for community development which takes into
account the ability of public bodies to provide essential
services.
EPA could simply choose to impose conditions
on permits respecting the amount of wastewater which
cdiild be treated by a plant so as to assure that effluent
limitations can be adhered to and water quality protected.
Exercise of authority in that fashion would leave it to
local governments to determine what sources could be
connected to a treatment plant with other development forced
to rely on septic systems or alternative means of waste
disposal. While such a process might relieve problems at
the permitted sewage treatment plant, it might simply have
the effect of transferring the pressure elsewhere. For
example, soils in an area which is not provided access to
the sewage treatment plant may not be very suitable for
septic tanks or may be suitable only under limited circum-
stances (such as large lots). If a municipality does not
adequately deal with the septic tank problem while its
sewage treatment plant capacity is limited, water pollution
problems may not in fact be alleviated by permit conditions
applicable only to treatment plant operations.
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Thus, although a sewer ban when certain levels
of utilization of plant capacity are reached is one possible
approach to conditioning permits for municipal systems,
it alone may not be sufficient unless tied to some broader
program for assuring that other development which occurs has
adequate alternative means of sewage disposal available.
One possible approach would be to impose conditions on a
NPDES permit not only providing for a ban on new connections
when plant capacity is reached, but also requiring the
municipality to adopt a building permit program which limits
permits to construction of facilities which can meet per-
formance standards for disposal of sewage. These standards
could take into account alternatives such as septic systems,
recycling possibilities, land disposal or other alternative
disposal techniques.
Such a program would ^not require a municipality
to adopt any particular land use plan or impose any arbitrary
ceiling of growth and development except as growth and
development may be limited by the capacity of existing
sewage treatment plants and alternative treatment techniques
to absorb any and all of the waste being generated.
However, if a municipality were to issue building permits
pursuant to such a program on a first-come, first-served
basis, such a program could lead to unbalanced development
as there would be no assurance jobs would be available for
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— 117 —
residents of now subdivisions which miijhl. Lake up whatovor
remaining capacity exists for sewage disposal, or industry
may be permitted without adequate provision for housing
for'employees. In addition, if a buii&ding permit program
would permit construction of a development/ such as a
chemical plant, which had the capability of transporting
its wastes out of the particular jurisdiction, such a
program may simply transfer the burden of dealing with
sewage disposal from one area to another unless further
controls for disposal of waste materials are imposed.
Little can be done to avoid the need for new
and additional housing and associated services required
by present and future populations attracted by new jobs in
an area. Thus, any system for controlling growth must
concentrate on those facilities which create new jobs. The
Water Pollution Control Act contemplates a broad attack
on the problems of water pollution as illustrated by the
requirements of Section 303, Section 208 and the various
provisions dealing with effluent limitations. As there are
so many aspects of residential, commercial, industrial,
and other kinds of development and activities which affect
water quality in one way or another, one of the most
effective ways EPA could deal with the overall problems
is to condition the issuance of NPDES permits for municipal
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treatment plants on a requirement that the municipality
not only control issuance of permits for new development
as suggested above, but that the municipality also undertake
a program to study patterns of growth and development within
their jurisdiction for the purpose of establishing policies
and guidelines to determine what optimum levels and kinds
of growth and development can and ought to be allowed.
Such a requirement would in effect require many
municipalities to undertake planning and control programs
covering all phases of land development. Whether EPA would
be upheld in such requirements is not a question to which
there is a clear answer. Given the broad authority to
establish and implement water quality standards and effluent
limitations, and given the intimate relationship between
land use and development of all types and its impact on
water quality, a good argument can be made that reasonable
conditions imposed by EPA could be upheld even though they
would require a degree and scope of planning and land use
controls not previously exercised by many municipalities.
2. Private Source Permits. EPA also has
authority to issue NPDES permits for private sources of
pollution. The conditioning authority in such cases is of
necessity much more narrow than in the case of municipal
treatment plants since a private source has little or no
power to compel any party other than itself to take any
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action with respect to the use of its land. Some
conditions would be feasible with respect to the owner's
use of its own property. Thus, where effluent standards
indicate particular point sources ought to be separated by
a certain minimum distance to avoid harmful reactions in
the intermingling of pollutants, minimum lot sizes may be
required to insure adequate separation of sources. Or,
if a source is to be constructed near a bathing beach or
a water intake, lot size requirements, holding tanks,
controlled rates of discharge or other measures might be
required to assure sufficient dilution of pollutants before
they reach sensitive areas. An outright ban at particular
locations might even be required where violations would
result because water quality standards or effluent limita-
tions could not be met.
Consistency with local land use planning and
control requirements could also be made a prerequisite.
The permit provisions of the Act do not give EPA authority
to require placement of a source at any location state or
local law would not authorize or permit. Since a permit
does not give a private party .the right to proceed with a
development contrary to the provisions of state or local
land use regulations, there would seem little problem in
requiring a private applicant to show it is proceeding con-
sistently with applicable state and local land use regulations.
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F. Ocean Dumping-
The Marine Protection, Research, and Sanctuaries
71 /
Act of 1972 requires a permit from EPA before any
waste materials from the United States are dumped into any
ocean waters. EPA is to establish criteria for the
review and evaluation of permit applications considering
the need for the proposed dumping, the effect on human health
and welfare, the effect on the ocean environment and whether
alternative disposal techniques including land dumping
_72/
or recycling might be more appropriate. If EPA in
establishing criteria for permits determines that land-based
alternatives are more appropriate in particular situations,
permits may be rejected, requiring that waste previously
disposed of in the ocean be disposed of at landfill sites
or through recycling or some other disposal process.
The Marine Protection Act, unlike the Water
Pollution Control Act, does not provide for creation of
any state agency mechanism for issuance and control of
ocean dumping permits. EPA is to develop the criteria and
issue the permits. However, in light of its authority to
establish criteria regarding land-based alternatives to
ocean dumping, EPA might require municipalities applying
71 '
Pub. L. No. 92-532, 86 Stat. 1052 (October 23, 1972)
33 U.S.C.A. §1401 et seq.
7 2 '
Id. at §102(a).
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for permits to demonstrate they have considered land-based
alternatives or have planning programs to provide land-
based alternatives to ocean dumping. The feasibility
of land-based alternatives would also have to be measured
against the ability of the permittee to comply with the
various other environmental control standards in effecting
land-based alternatives to ocean dumping.
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CHAPTER V
EPA AUTHORITY TO IMPOSE LAND USE CONTROL
REQUIREMENTS UNDER OTHER LEGISLATION
_L
A. The Noise Control Act of 1972
Under the Noise Control Act of 1972, EPA is to
develop criteria concerning the effects of noise on the
public health or welfare.and to report on available noise
2 /
control techniques. Industries emitting high noise
levels are to be identified leading to guidelines for loca-
tion of such industries. Guidelines might include such
techniques as establishment of buffer zones or minimum
acreage requirements to reduce the effects of noise on
surrounding development.
The authority of EPA under Section 5 of the Noise
Control Act is merely advisory for no power is given to
EPA to require states to adopt and enforce the published
criteria or to preempt state noise regulations. "However,
states could adopt and enforce the criteria developed by
3 /
EPA or other similar criteria, as Illinois has done and
1_ '
Pub. L. No. 92-574, 86 Stat. 1234, 42 U.S.C.A. §§4901
et seq. (hereinafter sometimes referred to as-the
"Noise Control Act.")
2 /
Noise Control Act §5.
3 /
Order of Illinois Pollution Control Board dated July 25,
1973, reported in 4 BNA Environmental Reporter, Current
Developments, p. 596, Aug. 10, 1973.
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4 ,/
New York has proposed. Such a conclusion is bolstered
by passages in both the Senate Public Works and House
Interstate and Foreign Commerce Committee Report which
dealt with the Noise Act such as the following:
. . . [Sj tates and local governments
have the primary responsibility under
the bill for setting and enforcing
limits on environmental noise which
in their view are necessary to protect
the public health and welfare. This
essentially local responsibility is not
assumed or interfered with by this
bill, although Federal leadership and
technical assistance are provided in
the criteria required by §407(a) which
will set forth levels of environmental
noise protective of public health and
welfare.
* * *
This discussion of preemption does not
deal with regulation of noise from inter-
state carriers such as railroads and
motor carriers. Such sources, which
are regulated under Parts B and C of
Title V, are subject to state or local
regulations only where the Administrator
determines it to be necessitated by
special local conditions or not in
conflict with regulations under Parts
B or C. 5 /
4 /
Proposed regulations were the subject of hearings on
October 9, 11 and 18 in New York. The regulations
would establish limits on sound emitted by various
classifications of land use. 4 BNA Environmental
Reporter, Current Developments, p. 841, Sept. 21, 1973.
S. Rep. No. 92-1160, 92nd Cong., 2d Sess. 7 (1972).
See also H. I*. Rep. No. 92-842, 92 Cong. 2d Sess.
9 (1972).
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With respect to noise generated by aircraft
at and around airports, EPA's authority is somewhat more
extensive. Proposed regulations for control and abatement
of aircraft and airport noise are to be submitted by EPA
6 /
to the Federal Aviation Authority. Public notice has been
given that such proposed regulations are being considered
7 /
by EPA and comments have been invited. The FAA has the
power to approve, amend or reject such proposed regulations.
Although the legislative history indicates that versions
of the Noise Act prior to the version approved by the
Conference Committee and subsequently by Congress did not
contemplate giving EPA authority to control noise around
airports by controlling land use, the final version
authorizes EPA to propose regulations "as EPA determines
&_/
is necessary to protect the public health and welfare."
No specific reference is made to land use regulations but
the legislative history indicates EPA's regulations can
encompass more than technological noise reduction require-
ments. Senator Tunney of California in describing the
Act as it passed Congress said in Senate debate:
&_/
Noise Control Act at §7, amending Federal Aviation
Act §611, 49 U.S.C. 1431.
7 /
39 Fed. Reg. 6142, Feb. 19, 1974.
Noise Control Act, §7(b).
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Under the amendment as proposed by the
House, which we are now asked to approve,
the Environmental Protection Agency would
retain the authority to initiate a regula-
tory process to protect public health and
welfare from aircraft noise. The EPA would
be required to conclude within 9 months a
study on aircraft noise problems, including
the implications and means of achieving
levels of cumulative noise around airports
and the adequacy of existing noise emission
standards and operational controls and a
study of the impact of aircraft noise on
public health and welfare. Subsequent to
that study the Administrator would be
required to take the lead on the control of
aircraft noise, submitting regulations to
protect public health and welfare from air-
craft noise and sonic boom. Such regulations
would be required to include proposed means
of reducing noise in airport environments
through the application of emission controls
on aircraft, the regulation of flight patterns
and aircraft and airport operations, and
modifications in the number, frequency,
or scheduling of flights.
~ ~ *
Again, I stress that those regulations
would include, but would not be limited to,
the imposition of curfews on noisy airports,
the imposition of flight path alterations in areas
where noise was a problem, the imposition
of noise emission standards on new and
existing aircraft -- with the expectation
of a retrofit schedule to abate noise
emissions from existing aircraft -- the
imposition of controls to increase the load
factor on commercial flights, or other
reductions in the joint use of airports, and
such other procedures as may be determined
useful and necessary to protect public
health and welfare. 9 /
118 Cong. Rec. S18644, Oct. 18, 1972.
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As "public health and welfare" appears to be the
standard governing regulations EPA is to propose, to what
extent can land use restrictions be utilized to protect
public health and welfare? It is clear airports and air-
craft are going to exist and are going to be noise problems
for some time to come as the technology for reducing air-
craft noise emissions has not yet produced a truly quiet
jet aircraft engine. Also there is little doubt excessive
noise can be damaging to health and welfare. Until such
time as aircraft engines can be made quiet enough to
avoid serious health and welfare problems, the most likely
way to reduce the impact of noise on public health and
welfare is to remove airports and aircratt from significant
concentrations of the public. One way this can be done
is by imposing minimum acreage requirements for airports
or requiring location in remote rural areas.
Minimum acreage requirements may have very
limited usefulness for noise problems arise not only
from movement of aircraft within an airport itself but also
from aircraft approaching or leaving airports along
particular flight paths. It would not be feasible to im-
pose minimum acreage standards sufficient to require an
airport authority to include adequate land along runway
approach paths so development could not occur until planes
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were high enough that noise would no longer Ik? a problem.
Thus, some form of airport zoning would be the most viable
way of dealing with the problem. Restrictions on the use
of land surrounding airports would be designed to permit
those kinds of development which would be least affected
by the noise levels expected at particular distances from
the airport. Developments with large numbers of people
associated would be barred near airports while heavy
industrial plants or other developments which may have
fewer people associated with them or which may be in a
better position to utilize noise protective measures
(such as better noise insulation) could be permitted.
Zoning restrictions might also be coupled with building
code regulations requiring utilization of noise protection
procedures and materials.
EPA is also responsible und^r Section 17 and 18
of the Noise Act for developing, after consultation with
the Department of Transportation, noise emission standards
for railroad equipment and facilities and interstate motor
carriers. States, however, ate permitted by both sections
to establish standards or controls on levels of environ-
mental noise, and to control, license or regulate the use
of any product if EPA after consultation with DOT determines
such standard or control is necessitated by special local
conditions and is not in conflict with regulations under
Sections 17 or 18.
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There is nothing in the legislative history
to indicate 'these provisions were intended to grant EPA
authority to impose any form of land use restrictions on
railroad equipment and facilities or interstate motor
carriers. It is also to be noted that both sections auth-
orize EPA to develop regulations regarding noise "emissions"
rather than noise "levels," and an examination of para-
graph (a)(1) of both sections indicates these regulations
are primarily concerned with technology. WhiTe EPA's
authority under Sections 17 and 18 would not appear to
provide authority to adopt regulations imposing land use
restrictions on railroads or motor carriers, EPA's auth-
ority under Section 5 to promulgate guidelines with respect
to levels of environmental noise would permit EPA to try
to influence such matters as the routing of highways,
railroads or mass transit facilities in such a way as to
minimize the effect of noise from such sources.
B. Solid Waste Disposal Act.
Recognizing that control of dissemination of
pollutants into the air or water was only part of the
job of protecting the environment, Congress enacted the
_J0/
Solid Waste Disposal Act in 1965 which was amended
10 /
Pub. L. No. 89-272, 79 Stat. 997, Oct. 20, 1965.
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11/
by the Resource Recovery Act of 1970. Under this
Act, EPA is authorized to make planning grants to state
and local agencies enabling them to make surveys of solid
waste disposal practices and problems, develop solid
waste disposal plans and make studies of the effect
12/
of solid waste disposal practices on adjoining areas.
Applicants for such grants must give assurance full
consideration will be given to all aspects of planning
essential to areawide implementation of effective solid
waste disposal systems. Such factors as population growth,
urban and metropolitan development, land use planning, air
and water pollution control and the feasibility of
regional disposal and recycling systems must be considered.
A grant can be made only if EPA finds satisfactory
assurance that solid waste disposal planning will be
coordinated with and will not duplicate other related state
or local planning activities. EPA has authority to
attach conditions to any grants made, but no penalty
provisions for noncompliance with conditions are provided
11 f
Pub. L. No. 91-512, 84 Stat. 1227, October 26, 1970,
42 U.S.C.A. §§3251 e_t seq. (The Solid Waste Disposal
Act of 1965 as amended is hereinafter sometimes
referred to as the "Solid Waste Act.")
12/
Solid Waste Act §207.
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in the Act. Thus, there may bo si>nu» question as Lo
whether Congress intended the conditioning authority to
relate only to requirements which are met at the time a
grant is made or to continuing conditions which remain
effective throughout the life of the funded project.
The EPA can make grants to state and local
agencies for the construction of solid waste disposal facilities
13 V
or demonstration resource recovery systems. Demonstration
project grants must be consistent with any areawide solid
waste disposal plans complying with EPA guidelines. To
obtain grants for the const-ruction of new solid waste
disposal facilities, a state or local agency must have a
solid waste disposal plan consistent with the §209 guidelines.
The solid waste disposal plan must be consistent with', and
included in, a comprehensive plan satisfactory to EPA for
the area involved, which may allow EPA to attach conditions
concerning the content of comprehensive land use plans
before a construction grant will be given. The importance
of comprehensive planning as a condition to receipt of
a grant under Section 208 was emphasized in the House
Committee report accompanying the Resource Recovery Act
of 1970 in which it is stated:
13 /
Id. at §208.
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In determining desirability of projects
and of approving Federal financial aid in
connection therewith, consideration shall
be given by the Secretary to the public
benefit to be derived by the construction
and the propriety of Federal aid in such
construction, the relation of the ultimate
cost of the project to the public interest
and to the public necessity for the project
and the use by the applicant of comprehen-
sive regional or metropolitan area planning. 14/
In addition to its authority to make grants,
EPA is to develop guidelines for solid waste recovery,
collection and disposal systems. The guidelines are to
be consistent with public health and welfare, applicable
air and water quality standards and are to be "adaptable
15 /
to appropriate land use plans." While these guidelines
are not enforceable regulatory standards as in the case
of the air quality standards under the Clean Air Act,
federal agencies having jurisdiction over solid waste
16/
disposal activities are to comply with the guidelines.
Furthermore, states and local governments may decide to
adopt the guidelines as the applicable state or local law
and require all persons to dispose of their solid waste
in a certain manner or in certain places.
The legislative history confirms that the
Section 209 guidelines are merely advisory and not
14/
H. R_. Rep. No. 91-115, 91st Cong., 2d Sess. (1970),
3 U.S. Code Cong, and Admin. News, 91st Cong., 2d Sess.
4558 (1970).
15/
Solid Waste Act at §209 (a).
16/
Td. at .
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regulatory (except to the extent Section 2GB requires
compliance -with Section 209 guidelines to obtain federal
grants). Senator Muskie in the Senate debate on the
1970 Act stated with reference to Section 209, "These
guidelines are advisory except when such state or
JJJ
locality applies for a demonstration grant under §208."
Along similar lines, Congressman J\arman stated on the
floor of the House of Representatives:
Unlike the Clean-Air Act, this is not
regulatory legislation. It is legislation
pure and simple to generate new technologies
at the earliest possible date for disposing
of solid-waste and for recycling usable
waste'and to build. .pilot plants where
these new technologies can be demonstrated. -18 /
As Section 209 guidelines are not mandatory
(except to-the extent federal agencies are to comply
with such guidelines) , the on-ly handle EPA has to assure
any compliance by state and local governments is through
the Section 208-grant conditioning authority. It is
clear Section 208 contemplates a degree of comprehensive
planning with respect to solid waste recovery and disposal
systems by an agency receiving a grant, but as a
practical matter it would appear EPA might be limited in
17/
116 Cong. Rec.s26704, July 31, 1970.
18/
116 Cong. -Rec.H20881, June 23, 1970.
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the kind of detail it can effectively require in
"appropriate land use plans" referred to in Section 209.
If EPA seeks to impose guidelines which require substantial
planning efforts directed not only at solid waste recovery
and disposal systems but also at sources of solid wastes,
state and local agencies may refrain from seeking grants
to avoid what may be viewed as onerous guidelines.
However, where EPA can tailor Section 209 guide-
lines with land use requirements which may be imposed under
the Clean Air Act or Water Pollution Control Act, there is
a better chance that local governments, which would be
required to comply with Air and Water Act requirements,
could be persuaded to adopt Solid Waste Act guidelines.
Thus, while Section 209 would appear to authorize EPA to
develop guidelines which consider or seek to implement
growth or growth pattern controls as a means of dealing
with solid waste problems, developing such guidelines as
a complement to similar regulations under the Air or
Water Acts rather than as an entirely separate planning
system would seem advisable.
C. Compliance with Environmental Controls by Federal
Agencies
Each of the acts previously discussed in this
and the preceeding chapters contains a provision requiring
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that federal agencies arid facilities be in compliance with
all applicable environmental standards and controls developed
under the acts, whther by EPA or state or local govern-
19/
ments. Under appropriate circumstances, where the
national interest requires, the President may exempt federal
sources.
Pursuant to these (or other) provisions', President
20/
Nixon issued Executive Order 11752 on December 17, 1973
in which the following policy was set forth:
It is the purpose of this order to
assure that the Federal Government, in
the design, construction, management,
operation, and maintenance of its
facilities shall provide leadership in
the nationwide effort to protect and en-
hance the quality of our air, water,
and land resources through compliance
with applicable standards for the
preservation, control, and abatement of
environmental pollution in full cooperation
with State and local governments. Compliance
by Federal facilities with Federal, State,
interstate, and local substantive standards
and substantive limitations, to the same
extent that any person is subject to
such standards a'rid* limitations, will
accomplish the objective of providing
Federal leadership and cooperation in the
19/
Clean Air Act, §118; Water Pollution Control Act,
§313; Marine Protectiorv, Research, and Sanctuaries
Act of 1972, §1411*c); Noise Control Act of 1972,
§4(b); Solid Waste Disposal Act, §211.
20/ *
38 Fed. Reg. 34793, December 17, 1972.
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prevention of environmental pollution.
In light of the principle of Federal
supremacy embodied in the Constitution,
this order is not intended, nor should it
be interpreted, to require Federal facilities
to comply with State or local administrative
procedures with respect to pollution
abatement control.
Section 5 of the Executive Order authorizes
exemptions from applicable standards under the various
acts if the head of the federal agency involved consults
with EPA and both agree the particular activity should be
exempt because of national security or other extraordinary
cases where national interest is paramount. If EPA does
not agree that an activity should be exempted, the federal
agency can seek approval for the exemption from the
Office of Management and Budget.
The statutory sections cited above together
with the Executive Order make it clear federal agencies
in any of their activities are to comply with environ-
mental standards and control programs developed pursuant
to those acts even though developed by state and local
agencies just as if the federal agency were a private
person. Thus, the status as a federal agency does not
enable an agency to avoid compliance with state and local
environmental control programs developed under the federal
laws. This would also apply to the land use portions of
any such control programs^
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CHAPJER VI
RELATIONSHIP BETWEEN EPA AND STATE, REGIONAL
AND LOCAL LAND USE AND ENVIRONMENTAL PROTECTION AGENCIES
While it is clear a .variety of possible techniques
are available to EPA to implement various kinds of land use
control programs in striving to achieve and maintain ap-
propriate air, water, .noise and solid *waste disposal standards,
the issue arises as to who decides how to impose which
controls at what time. In some situations, as under the
Noise and Solid Waste Acts, the final choice is going to
be left largely to state and local governments to promul-
gate their own implementation plans for EPA has little
effective control to require state and local governments to
adopt particular kinds of programs unless grants are being
sought as under Section 208 of the Solid Waste Act. However,
where EPA has developed standards and guidelines which in-
corporate land use matters in control of noise or soj-id
waste problems, EPA can be helpful and influential in
assisting state and local governments to model their
programs on the EPA guidelines.
With respect to air and water quality standards,
EPA has substantially more authority and can effect its
own requirements in states which do not comply with the
provisions of the Air and Water Acts. Furthermore, in some
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situations under the Noise and Solid Waste Acts, as in
the case of airport noise regulations or in awarding
grants for solid waste disposal projects, EPA is in a
position to require implementation of land use control
processes. To what extent should EPA exercise that
authority in deciding when and how to impose which
controls?
Perhaps the simplest method would be for EPA
to develop the relevant environmental quality standards
with the various emission or effluent limitations or guide-
lines and performance standards. With these standards and
guidelines developed and published, EPA could then approve
state implementation plans which assure that no new sources
of pollution will be permitted if the standards developed by
EPA are exceeded. EPA could simply leave questions of which
sources will be built when and where to the local agencies.
Thus, a state which adopts what is essentially a first-come,
first-served system issuing permits for the construction of
facilities until such time as allowable pollution in-
crements are met could be approved by EPA as well as programs
from states which seek to provide some degree of planning
and rationality to decisions as to which and under what
conditions new sources will be permitted.
However, it is ultimately EPA which is responsible
under the various p611ution control acts for developing
and assuring implementation of appropriate environmental
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quality and performance standards. Thus, it would also
be appropriate for EPA to undertake a program requiring
local agencies to take a more comprehensive look at
growth and development within their jurisdiction and
coordinate environmental quality enforcement with land
use planning. As a practical matter it would be impossible
for EPA to get involved in the substance of all local land
use planning processes, but it would not be out of place
to require comprehensive coordination of land use and
environmental quality control processes.
Rather than relying on programs either leaving
land use aspects of environmental control programs
completely to states or developing a program in which
EPA requires a close coordination of all aspects of land
use affecting environmental quality control, EPA could
implement a program by which land use controls may be
selectively implemented by local pollution control agencies
on a case-by-case basis. Thus, for example, a determina-
tion could be made that land use elements are more im-
portant in dealing with hazardous emissions or toxic
effluents or other particular kinds of pollution sources,
but that with respect to other sources, states could be
left to exercise such controls as they deemed fit provided
environmental quality and performance standards are complied
with.
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To date, EPA has largely left questions of
implementation of land use controls to state and local
pollution control agencies. Although there is recognition
that the various pollution control acts and EPA controls
promulgated thus far will have substantial impact on land
use and that land use controls could substantially aid in
implementation of environmental quality standards, there
has been concern that EPA not preempt the functions of
state and local land use planning and control agencies.
There is merit in this concern not only because of the
political ramifications in a federal agency appearing to
usurp more and more of state and local prerogatives, but
also in the fact that EPA clearly does not have the man-
power, resources and expertise to undertake a massive
land use planning program applicable to the local level
throughout the United States.
Many states and local governments have under-
taken extensive programs of land use planning and land
use control. While there is by no means great consistency
throughout the United States in the quality or extent
of such programs, and indeed there are many areas where
no such planning or control exists at all, if EPA
makes the basic policy decision that there is need for
greater application of land use controls in achieving
and maintaining compliance with environmental quality
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standards, it would be advisable for EPA to take some
steps to assure that its regulatory requirements provide
some mechanism for achieving consistency between pollution
control requirements and state and local land use
procedures.
EPA could implement land use controls by
requiring local pollution control agencies in the im-
plementation of environmental quality standards and per-
formance standards to have adequate authority to im-
plement appropriate land use controls. Indeed, some of the
regulations already promulgated by EPA require that plans
submitted by state agencies include control strategies for
insuring that projected growth and development will be
compatible with achievement and maintenance of environmental
quality standards. EPA might seek to require pollution
control agencies to have authority to exercise this power
or it might require where the agency does not itself have
the power that the state provide a coordination mechanism
whereby agencies having the power are required to coordinate
decision making with the pollution control agency. EPA
has begun to implement such a policy in its regulations
dealing with the content of water basin plans where each
1_/
See e.g., 40 C.F.R. §51.12.
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-141-
basin plan is required to be coordinated with other
applicable state and local land use and natural resources
_2_y
plans. Consideration might be given to making more
extensive use of this sort of provision to encompass other
existing planning mechanisms which may affect land use or
natural resources without having any direct control- Such
might also include industrial development programs.
EPA should also determine what authority the
state and local pollution control agencies have to
resolve conflicts between environmental control plans and
the various other state and local plans, and whether state
law permits any other agency to override a decision by
the pollution control agency. A state planning process
would have to be deemed unsatisfactory if any other
agency could effectively override decisions and regulations
promulgated under EPA approved plans and regulations.
2_ 7
40 C.F.R. §130.22, 38 Fed. Reg. 8034, March 27, 1973.
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CHAPTER VII
INTERRELATIONSHIPS AMONG EPA
POLLUTION CONTROL PROGRAMS
While each of the separate pollution control
programs is directed toward one aspect of a common goal
(to attain and maintain a cleaner and more healthful environ-
ment) , the various programs will not always operate in
harmony when two or more bear on a particular development.
Many of the EPA programs and the state and regional im-
plementation procedures and plans are still in the forma-
tion stage (or even in court) -and it is difficult to judge
at this point what the real impact of these programs will
be when they are fully fleshed out and put into force.
In light of this uncertainty, this chapter deals with the
possible interrelationships .between pollution control
programs using illustrative examples to suggest the kind
of problems which may arise as the pollution control
programs mature. One simple example will illustrate the
point.
1. -The metropolitan sanitary district of the
City of Camelot has installed waste water treatment
facilities to meet all requirements of its NPDES
permit but in so doing accumulates enormous quan-
tities of semiliquid sludge each day. It can dry
portions of the sludge and sell the remaining solid
as fertilizer but State odor regulations and
energy shortages prevent converting all sludge into
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-143-
a solid form. Some of the liquid sludge can be
sent to Desolation County and spread on abandoned
strip-mined land in an effort to reclaim the land
but the permeability characteristics of the soil
and odor problems limit the amount of sludge which
can be disposed of in this way. Use of sanitary
landfills is also difficult because of the failure
of many nearby municipalities to permit landfills
at suitable sites so sludge has to be transported
great distances for disposal.
Actually, the results of complying with one pol-
lution control program (the Water Act) in the above example
can assist in the implementation of other governmental programs
since the use of sludge collected in the pollution control
processes can aid in the reclamation of depleted and strip-
mined land which is now useless. However, the problem of
disposing of sludge is not quite so simple. Although EPA has
not promulgated odor standards, there has been some work,
within the Agency on such standards or guidelines and various
state and local governmental entities have in some instances
adopted odor regulations which could bear on the ability to
dispose of sludge by spreading it on land.
Large quantities of sludge which are not used as
liquid fertilizer or dried and sold in solid form are disposed
of in sanitary landfills. If the waste treatment system is
located in an area which is subject to an areawide waste dis-
posal plan similar to that called for by the Solid Waste
Disposal Act, the options of Camelot's sanitary district may
be narrowed with respect to possible sites for disposal as
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-144-
Solid Waste Act guidelines will inhibit location of landfill
sites where soil and geological conditions are not suitable.
Indeed, where sufficient care is not taken to select suitable
landfill sites, disposal of sludge from waste water treatment
systems can cause water pollution as water containing dissolved
pollutants drains from or through the deposited sludge into
nearby surface waters or groundwater supplies. Similarly,
the use of the liquid sludge as a fertilizer by spreading
it over farmland or to reclaim depleted strip-mined or other
land can cause additional Water Act problems if applied in
such a way as to permit significant run-off of contaminated
water into nearby surface waters or where soil conditions
are such that leaching of pollutants into groundwater
supplies may result.
The foregoing is but one simple example of how
the implementation and enforcement of one pollution control
program: can be made more difficult because of the necessity
to consider the applicability of other pollution control
programs. The problems created by the interrelationship
between the various applicable pollution programs in the
example are not insoluable by any means. However, there
are other situations where the interrelationships will not
only make compliance with pollution control programs more
difficult, but will bring conflicting influences to bear
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on a project. The following examples will illustrate
interrelationships which can be very troublesome.
2. How can one dispose of solid waste
in Gotham, a major metropolitan area on the
coast of the United States. The Clean Air
Act's state implementation plan makes inciner-
ation difficult if not impossible as Gotham's air
quality does not comply with national ambient
air quality standards. Disposal in a sanitary
landfill — presuming a nearby site can be found
in the land-scarce metropolitan area — must be
undertaken in a fashion which guards against pol-
luting groundwater (via leaching) or surface water
(via runoff) supplies, contrary to the Water
Pollution Control Act. Moreover, the state has
adopted guidelines preventing such disposition
under the Solid Waste Disposal Act. Although
Gotham is on the Atlantic Ocean, it is limited
in its ability to dump its garbage at sea by
the Marine Protection, Research and Sanctuaries
Act. Presuming the economic feasibility of removal
and disposition to a site far from the metropolitan
area (which, again, could not be an incineration
site in conflict with significant deteriora-
tion standrds), the state's Solid Waste Act
guidelines indicate a number of places where
sanitary landfills would be appropriate, but
the local zoning regulations in most counties
and municipalities zone out landfills and even
solid waste disposal plants — after all, what
community wants a "dump" in its backyard?
The problem of solid waste disposal can be a more
difficult one than the disposal of sludge because there
are fewer alternatives for disposal. Sludge can in many
situations be turned into useful fertilizer either in a
dry form (e.g., the program of the City of Milwaukee,
Wisconsin to turn sludge into a fertilizer called Milorganite)
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or in its liquid form (e.g., the arrangement between the
Metropolitan Sanitary District in Chicago, Illinois and
Fulton County, Illinois for reclaiming depleted and strip-
mined land). Thus, the need to incinerate or dump the waste
sludge in landfill sites is reduced. The Solid Waste Act
seeks to encourage recycling of solid waste materials and
to some extent this is being done. However, some means
of disposal must be found for the great bulk, of solid waste
matter and the choices are essentially limited to incineration
or dumping in appropriate landfills.
Guidelines developed under the Solid Waste Disposal
Act along with federal grants under the Act will certainly
aid in the location and establishment of landfill sites or
recycling programs which will not create problems under other
pollution control programs such as the Water Pollution Control
Act. However, whatever guidelines are developed, they will
not substantially reduce the need for tracts of land suitable
for disposal, and in a heavily populated region like New
York City unused land let alone land suitable for sanitary
landfills may not be easy to come by. Minimally, such a land
squeeze may increase the pressure on wetlands and other environ-
mentally fragile lands in the coastal zones. When the guide-
lines are superimposed on an already limited available land supply,
the problems of solid waste disposal become even more serious.
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Another problem is the fact that Solid Waste
Act guidelines from EPA are only advisory except as they apply to
federal agencies. Unless state and local governments voluntarily
choose to adopt the guidelines as the applicable local law,
there is no assurance EPA guidelines will ever have any
effect. Furthermore, the guidelines as contemplated by the
Solid Waste Act may only indicate where or under what conditions
landfills will be permissible. This does not mean that a
site suitable for use as a landfill will be utilized for that
purpose if the local government does not choose for whatever
reason to establish or permit a landfill. Thus, unless some
level of government above local government has the authority
and will take the initiative to assure that sufficient land-
fill sites are established wherever appropriate in spite of
local governmental policies or objections, landfill sites
may wind up being located further and further from major
sources of solid waste. Of course, as states and municipalities
come to recognize the need to dispose of solid waste is one
which concerns all citizens regardless of where they live,
Solid Waste Act guidelines may be adopted and implemented
voluntarily.
3. The location of housing can create similar
problems, as it does in the Capitol City. The
national government is offering an ever-increasing
number of jobs in the area which has led to a
tremendous in-migration and a concommitant demand
for housing, either new or rehabilited. The
question is: where?
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The continuing planning process under
the Water Pollution Control Act dictates
location of waste water treatment plants
where there is existing sewer (and water,
incidentally) capacity. But in the Capitol
City area there is very little of this ex-
cess capacity except in the fringe areas -- where
there is little existing housing to rehabilitate.
However, construction of new housing will in-
crease the chance of degrading "clean" air
because of the almost certain development of
complex sources, like shopping centers, which
will accompany fringe residential construction.
Adequate mass transit is not readily available in
fringe areas of Capitol City so increased use of motor
vehicles is inevitable with the attendant problems of
complying with air quality control strategies to as-
sure attainment and maintenance of standards. Building
or rehabilitating existing structures in older
areas where bus or other mass transit systems
are readily available will lessen pollution
from mobile sources -- automobiles and service
vehicles. Moreover, construction of a mass
transit system under the National Mass Transit
Act, favoring as it does the dense clustering
of development around stops, also favors
construction and rehabilitation of housing near
the central city. However, that is where sewage
treatment capacity is limited.
The interaction of the land use impacts of EPA
programs on new housing is especially complex. Compliance
with water quality standards and effluent limitations would
normally be facilitated if devel opment is clustered around
and attached to a central sewage treatment facility. In many
existing urban areas and nearby suburbs such clustering may
exist but the capacity of sewage'treatment plants may be fully
utilized. Under the NPDES permit system, municipal sewage
treatment plants must obtain permits in order to discharge
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-149-
effluent into nearby waters which will be conditioned
on compliance with appropriate water quality standards
-Ju
and effluent limitations.
Conditions attached to permits for many of the
existing sewage treatment facilities in urban areas may
effectively limit the amount of new sources which can be
connected to those plants, thus directing growth and
development into new areas in which it may become necessary
to construct new treatment facilities which will also be
subject to NPDES permits. As water quality in many of
the rivers and streams in urban areas is already rather poor,
this may effectively force the dispersal of treatment
plants into outlying areas.
The standards of the Clean Air Act also create
major implications for new housing. Anybody who has driven
in a typical metropolitan area during the rush hour is well
aware of the massive reliance on automobiles by Americans.
The dispersal of residential housing into the urban fringes
will undoubtedly result in an even greater reliance on the
automobile because of the difficulty of supplying adequate
bus or other mass transit facilities in such areas. Regula-
tions developed under the Clean Air Act require each state to
identify areas within the state which over the next ten
year period have the potential for preventing the attainment
__
See EPA Memorandum dated January 15, 1974 to Regional
Administrators, supra note 6, Ch. II, p. 5.
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or maintenance of a national standard. A control strategy
must also be devised to prevent construction, modification
or operation of a facility or development which may cause such
violation of national standards. Where substantial complex
sources can be expected to be developed, in such areas states
may be required to adopt strategies which will prevent the
development of such sources, thus reducing the desirability
2 /
of the area for residential purposes.
Consequently, while Water Act standards may
encourage the dispersion of housing into urban fringe areas,
Clean Air Act standards would tend to encourage the concentra-
tion of population in already developed areas of cities where
mass transportation facilities would be available. In this
way reliance on the automobile could be reduced as people
would be generally closer to their jobs and could more con-
veniently use mass transit systems. It is this concentration
of population, however, that will lead to the overloading
of existing sewage treatment facilities.
Part of this problem could conceivably be alleviated
by imposing conditions on the NPDES permit issued under
the Water Act which might limit the type and density
of development being served by new water treatment
¦facilities thereby preventing a type and density
of development which would cause problems with implemen-
tation of Clean Air Act standards. However, develop-
ment of such conditions would require considerable
planning expertise on the part of EPA.
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4. The City of Centerville, a major
metropolis in the center of the United
States, has found its existing airports
too busy or too small to meet air traffic
needs. Even if sufficient land were avail-
able to accommodate a jet airport in
Centerville, airport noise regulations
would prohibit a location so close to a high
population density. However, location of
the airport at a site consistent with Noise
Act standards would place the airport beyond
existing mass transit facilities requiring
reliance on automobiles for transportation
to the airport. This would mean develop-
ment of a substantial complex source in a
rural area where the air is clean. Further-
more, existing sewage plant capacity is not
sufficient to handle all the storm water run-
off from runways and parking lots.
FAA has not yet adopted specific Noise Act
standards applicable to airport construction or developments
surrounding airports. However, it would seem clear that any
such standards will discourage location of airports in or
near residential areas or developments such as schools, hospitals,
or other areas where large quantities of people are likely
to be concentrated or working. This is likely to inhibit
location of airports in central cities or nearby suburban
areas while encouraging them in rural areas or on the outer
fringes of urban areas. Airports because of the accompanying
jet exhausts are substantial complex sources and the accumula-
tion of automobile exhaust emissions which normally will be
associated. Furthermore, airports tend to attract various
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-152-
types of commercial and industrial development to surrounding
areas which would generate additional traffic.
The complex source regulations under the Clean Air
Act would tend to encourage the location of airports on
fringes of metropolitan areas near mass transportation
facilities or in rural areas where air is relatively clean.
Such locations are likely to be far from mass transportation
facilities and would require increased reliance on auto-
mobiles which would also have to travel much farther from
the population centers to get to the airport area. Loca-
tion in the center of urban areas would likely be inhibited sinci
air quality in most urban areas does not meet the national
air ambient air quality standards so the construction of the
new source of the magnitude of an airport would not be
feasible. Thus, construction of an airport in urban fringe
areas would be the most likely possibility under Clean Air
Act standards as auto transportation might be held down some-
what and the introduction of the airport may not cause
"significant deterioration."
Construction of airports in urban or urban fringe
as well as in rural areas may be inhibited by Water Pollution
Control Act standards if existing sewage treatment facilities
are being operated at or close to capacity. Airports can
be expected to generate substantial amounts of water runoff from
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-153-
runways and parking lots and this runoff can be expected to
contain large quantities of jet and motor fuel residues in
addition to other waste materials which will accummulate
_3_y
on large paved surfaces.
5. The metropolis of Sparkletown has
been rapidly growing and faces increasing
needs for additional electric power. Existing
air quality is of such poor quality that new
fossil-fueled electric generators are not per-
mitted in the city limits. The lack of sufficient
water and land for cooling ponds limits the use-
fulness of nuclear generating plants because of
inability to meet thermal pollution standards.
Construction of coal-fired generating facilities
at coal mines outside the city is inhibited
because of the significant deterioration regula-
tions applicable to the clean air in the rural
area of the coal mine.
More electric generating plants are required to
meet this country's ever growing.energy needs, and the choice
While EPA has taken the position that the Water
Pollution Act was not designed to require EPA to deal
with such storm water runoff, per se. (see fn.53
supra. Chapter IV, and accompanying text) a state
would nevertheless be free to adopt a program tor
regulating nonpoint source pollution, which would
have the same effect. Such a program might involve
requiring a permit for substantial sources which might
be conditioned in various ways to reduce the impact
of runoff or require some kind of treatment. In
any event, the Water Act does require EPA to develop
guidelines for controlling pollution from nonpoint
sources. Even if EPA's interpretation of the Act is
sustained and NPDES permits are not required by EPA
with respect to airport runoff, the impact of airport
on water quality in the area affected by the runoff will
have to be considered by states in implementing water
quality improvement programs and any nonpoint source .
guidelines developed may bear on decisions as to where to
locate airports.
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of potential sites will be affected by competing considera-
tions of the Air and Water Acts. The significant deteriora-
tion standards under the Clean Air Act may make it difficult
under existing technology to build fossil-fueled plants any-
where except in urban fringe areas and then only in very
limited numbers. Indeed, the explanation accompanying the
proposed significant deterioration regulations indicates
that while a 1,000 megawatt capacity coal-fired power plant
meeting the new source performance standards of EPA could
possibly be built under the proposed regulations in an air
quality control region, the plant would take up a large part of
_±v
the available emission allowance. In many urban areas, air
quality does not meet the national ambient air quality
standards so a new plant cannot be built unless it gives off no
emissions. However, the precise location of an electric
generating plant is somewhat flexible in that electric power can
be moved from a plant over high voltage transmission lines to
places where.it is needed. Thus, plants can be spaced
appropriately to comply with signficiant deterioration guide-
lines. Whether the significant deterioration regulations
would permit sufficient numbers of appropriately spaced plants
remains to be seen.
4 /
38 Fed. Reg. 18990, July 16, 1973.
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-155-
Water Act standards also apply to the construction
and operation of power plants and NPDES permits will be
required for all discharges. Water is required to cool
generating equipment and particularly with respect to nuclear
powered generating plants great quantities of water may be
required. While nuclear generating plants do eliminate the
stack emission problems present with the traditional fossil-
fueled plants and could therefore be located in urban areas
without violating Air Act standards, nuclear plants are great
generators of thermal pollution. Water Act standards have
generally been rather strict in the allowable degree of thermal
pollution which would be permitted thus requiring nuclear
plants to install expensive cooling towers or cooling lakes
and ponds which would require large tracts of land. Cooling
lakes and ponds in urban areas would be impractical because
of the enormous quantities of water which would have to be
cooled and the large tracts of land which would be required.
Cooling towers are not a simple answer because some types of
cooling towers will create great clouds of mist under certain
atmospheric conditions. Thus, urban locations of nuclear
generating plants may be inhibited.
Summary
The foregoing are but a few examples of many situa-
tions where appropriate implementation of various pollution
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-156-
control acts will often bring conflicting considerations to
bear on a single project. The matrix following this
chapter is an effort to illustrate in a graphic form various
types of development as they are affected by the major
pollution abatement and control programs of EPA. The matrix
is not intended to encompass every possible land use im-
pact of all EPA responsibilities, but rather, to identify
a wide range of categories of development and to illustrate
the various major EPA programs which bear on the selected
_5_y
categories of development.
Although Congress has given some flexibility to
EPA in establishing standards and in issuing appropriate
permits, this flexibility is quite limited. The courts
have shown a willingness to interpret the statutory language
very strictly, and Congress has provided no mechanism
within the acts for handling situations where two different
acts impose requirements which may in some respects be
mutually exclusive.
5_/
In choosing categories of development for the matrix
no effort was made to distinguish types of development
solely because of their size. Thus, residential develop-
ment shows up as only a single category even though the
size and density of residential development can drastically
affect the kind of environmental problems which will ensue
Where size is a particularly significant factor in the
relationship between the type of development and EPA
responsibilities, notation will be made on the matrix
or the accompanying notes.
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-157-
Furthermore, the acts do not provide a mechanism
for taking into consideration governmental laws and policies
other than pollution control policies. For example,
the policies of the Water Pollution Control Act which
require strict limitations on effluents from sewage treat-
ment plants may have a substantial impact on efforts to
revitalize innercity areas through such techniques as
urban renewal, model cities and urban mass transportation
techniques which may be helpful in reducing air pollution
problems by reducing reliance on automobiles, but which
are likely to increase the pressures put on urban sewage
treatment facilities by concentrating more people in a
smaller area.
Programs such as the Rural Development Act of
6 / 7 /
1972 and the Appalachian Regional Development Act
seek to encourage development and improve the lot of people
living in rural areas. However, development in rural areas
usually means bringing industry and more people which will
cause problems under both the Air and Water Acts. How
can any substantial amount of industry be brought into a
rural area which has clean air if the principle of "significant
deterioration" will severely limit the amount of new emissions
6 /
P.L. 92-419, 86 Stat. 657, August 30, 1972.
P.L. 92-549, 85 Stat. 168, August 6, 1971.
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-158-
which would be permissible.
The effort to administer the individual pollution
control programs of EPA without some form of coordination
among those programs and without some consideration of the
impact of those programs on other state, federal and local
policies could bring about irrational, chaotic and very
expensive results.
-------
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FOOTNOTES TO EPA PROGRAM
MATRIX
1/ Pursuant to the Sierra Club v. Ruckelshaus case, (supra,
p. 29, note 14), Clean Air Act programs must be designed
to prevent "significant deterioration" of air quality in
areas where air quality meets or is better than national
ambient air quality standards.
2/ See pp. 28-32.
3/ See pp. 50-60.
4/ See pp. 32-34.
5/ Grant programs may be designed to impose conditions on grants
requiring the recipient to undertake some form of land use
planning in using grant funds. Grant funds might be withheld
if the grantee does not have sufficient authority to implement
and enforce plans. Conditions could take the form of limita-
tions on population density in an area served by a plant built
with a grant or the establishment of minimum criteria which
planning programs must meet to quality for planning or imple-
mentation grants.
6/ The size and density of residential development will be a
substantial determinant of the impact of EPA regulations on
such development. The construction of a few single family
residences is not likely to result in any serious pollution
problems unless they are not attached to a sanitary sewer sys-
tem. If there is no attachment to a sewage system, sewage
-------
-161-
disposal may be taken care of by septic lank systems which
if not located or designed properly can substantially af-
fect groundwater supplies. On the other hand, large sprawling
suburban subdivisions can place substantial burdens on muni-
cipal or privately-owned waste treatment plants and can be
significant non-point sources of water pollution. Such de-
velopments, as with high density developments such as high-
rise apartments, can also generate considerable motor vehicle
traffic with air quality problems not normally associated with
smaller low-density developments.
7/ Developments generating substantial solid waste may choose
between incinerating the waste and having the waste transpor-
ted away to an appropriate disposal site or facility.
8/ Blasting and excavation operations may create severe dust
problems which may lead to regulations dealing with whether
and how stripping operations will be allowed to continue.
Dust combined with exhausts from hauling and excavating equip-
ment may present serious air quality problems.
9/ The national airport system plan developed under the Airport
and Airways Development Act of 1970 may be approved by the
Secretary of Transportation only after consultation with and
consideration of the views and recommendations of EPA respec-
ting protection of environmental quality which recommendations
"to the extent ... feasible" should be made part of the plan
-------
-162-
(49 U.S.C.A. §17*12 ( r) ) . Individual projc-rL appj i cot. i ohm run
be approved only if written assurance is given that appli-
cable air and water quality standards will be complied with
in the construction and operation of the project (49 U.S.C.A.
§1716(e)(1)).
10/ Air quality standards for emissions of particulate matter or
sulfur oxides from fossil-fueled generating plants coupled
with the mandate that EPA not approve State implementation
plans allowing significant deterioration of air quality may
have the effect of requiring construction of smaller, less
economical generating plants, encouraging construction of
nuclear or hydro-electric plants and research into other
forms of electricity generation, or the location of genera-
ting plants at points far from the demand for the power to
be generated.
11/ See pp. 122 et seq.
12/ See p. 122.
Implementation of programs to protect against levels of noise
which may be injurious to health and welfare may require set-
backs, buffer zones, relocation of high noise emitters tree
planting or other noise reduction techniques which may affect
what land is used. Standards developed under §5 of the Noise
Act are not mandatory enforceable standards states or EPA is
required to implement.
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-163-
13/ Where development may generate substantial truck or railroad
traffic, guidelines may be advisable to control routing of
such traffic, location and construction standards of loading
facilities, and the used buffer zones or other noise redu-
cing measures.
14/ See pp. 124-127.
15/ See pp. 127-128.
16/ See pp. 128-133.
This Act will affect use of land subject to control of state
and local governments only to the extent a state chooses to
seek federal funds under the Act-or otherwise chooses to un-
dertake and implement the §209 planning program. However,
executive agencies of the Federal government conducting ac-
tivities generating solid waste or having jurisdiction over
any land or facilities which may be used for or become in-
volved with solid waste disposal activities must take steps
to insure compliance with §209 guidelines.
17/ See pp. 129-131.
18/ See pp. 131-133.
19/ Hazardous wastes, including spent nuclear fuel, may be sub- .
ject to special guidelines requiring disposal only at land-
fill sites with particular geological conditions. This could
influence the- location of industries generating hazardous
wastes in areas where appropriate landfills are located.
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-164-
20/ See pp. 51 et seq.
21/ See pp. 64-73.
22/ See pp. 73-87.
23/ See pp. 87-104
24/ See pp. 83-85, 100-104.
Any development may be a non-point source of pollution during
construction or after completion depending in part on the
size of the development. Construction of a single family re-
sidence apart from a larger development can be a non-point
source if care is not taken during the construction process
to avoid runoff from the facility being constructed or the
exposed soil. The problem can vary greatly depending on,
among other things, the size of the development, the geology
and slope of the land and its ability to absorb water, and
the extent to which artificial structures will cover the soil.
25/ See pp. 87-104.
26/ See pp. 104-109.
27/ See pp. 109-119.
Municipal waste plants must receive permits from EPA under
§402 of the FWPCA for the discharge of pollutants into any
navigable waterway which may be subject to such conditions
deemed necessary by EPA to carry out the provisions of the
Act. Under §402(h) of the FWPCA, EPA has authority to sue
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-165-
to restrict or prohibit any further connections to municipal
sewage treatment plants where any condition in a permit for
discharges from the plant is being violated.
28/ See pp. 120-121.
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-166-
CHAPTER VIII
EXISTING COORDINATION METHODS
A. The Need for Coordination
Many of EPA's programs follow a similar structural
pattern. National standards are set. Then the states and
their subdivisions adopt plans designed to implement the
standards. However, the federal legislation contains no
specific requirement that these state plans consider more
than a single environmental problem. State implementation
plans under the Clean Air Act are not explicitly required
to promote clean water, and so forth.
The problems caused by single-media planning
are not terribly significant as long as the control
methods are technological in nature. While some pollution
control technologies do generate new pollutants in another
media, and the disposal of such pollutants can constitute
a real problem, these problems are not of overwhelming
magnitude in relation to environmental problems generally.
However, when land use controls are used by state and
local entities in the implementation of pollution standards
more serious conflicts are presented. A land use plan
designed to achieve clean air may produce growth patterns
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-167-
which have adverse consequences for water, noise or solid
waste disposal.
Moreover, the requirement and preparation of
plans in and of itself may not mean environmental quality which
plans are designed to achieve will be attained. Different
plans mean different things, especially if produced by
different agencies, or groups of agencies. Plans are not
necessarily compatable, and may lead to altogether in-
consistent results. Indeed, it is not impossible that
assumptions about what is being done in a "planning"
process are entirely erroneous, and those charged with
implementation may be lulled into a false sense of security.
Clearly some method is needed to coordinate these planning
processes to promote optimal achievement of all environ-
mental goals.
The need to coordinate government programs is
widely recognized but not easily accomplished. A number
of systems for coordinating various programs having an
impact on land use and environmental conditions have been
advocated or instituted in recent years. Each of these may
be of some benefit in assisting the.states to coordinate
their environmental programs.
B. National Environmental Policy Act
The National Environmental Policy Act of 1969
requires consideration of a variety of environmental factors
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-168-
by means of an environmental impact statement to be
filed by federal agencies with the Council on Environ-
mental Quality for all "major action" affecting the en-
vironment. These major actions include proposed
legislation, regulations, procedures, policy determina-
tions, and proposed projects expected to significantly
affect the quality of the environment. Section 102(2)(c)
provides that an environmental impact statement include:
1. a detailed description of the proposed
action;
2. a discussion of direct and indirect effects
on the environment that might result from
the action;
3. identification of unavoidable adverse
environmental effects;
4. an assessment of feasible alternatives
to the proposed action;
5. a description of cumulative and long-
term effects of the action on the earth's
resources;
6. identification of any irreversible commit-
ment of resources that might result from
the action.
i_y
Guidelines published in August of 1973 (38 Fed. Reg. 20549,
August 1, 1973) clearly indicate the all-encompassing
interpretation which CEQ has placed on "major" pursuant
to the 1971 federal court decision in Morninqside-Lenox
Park Association v. Volpe, 334 F. Supp. 132 (N.D.~
Ga. 1971).
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-169-
The Act also requires that the responsible federal
official (usually the agency involved) shall consult with
and obtain the comments of any federal agency having
jurisdiction by law or special expertise with respect
to any governmental impact involved. Thereafter, copies
of such statements, with comments of appropriate federal,
state and local agencies, are sent to the CEQ and made
available to the general public.
Since its conception in 1969, NEPA, largely
through the environmental impact statement, has accomplished
a good deal. As a result of NEPA impact statements, as
noted in the recent report of the Task Force on Land Use
and Urban Growth a new community in Illinois was redesigned
to preserve an 800 acre hardwood forest; a highway in
Georgia was realigned to avoid harm to a lake; a flood
protection project in California was modified to preserve
a wildlife habitat; a proposed dam in Kentucky was moved
3 /
several miles downstream to preserve the scenic area.
As a result of impact statements, community
and national environmental groups have achieved greater
access to the courts, and dozens of successful law suits
instituted by such groups have served to strengthen NEPA
Citizens' Advisory Committee on Environmental Quality,
Task Force on Urban Growth, The Use of Land: A
Citizens' Policy Guide to Urban Growth, 197-198 (1973).
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as a whole. The fact that federal agencies have been
forced to consider environmental concerns along with
other project goals has resulted in a newly-broadened
view of the interrelationship of environmental factors.
Moreover, comments by the public and other
agencies, formerly given little attention, must now accompany
the impact statement to the Council on Environmental Quality.
This publicity often results in a higher standard of
conduct for agencies involved in the development process.
In the words of the Task Force Report, the agency cannot
discharge its responsibilities "simply by establishing a
set of unvarying minimum standards. It must consider a
broad spectrum of public objectives and respond to the
alternatives available in each particular situation.
Some actions taken by states to implement EPA
programs require the filing of an environmental impact
statement under NEPA. Specifically, the construction of
municipal sewage treatment plants under EPA grants require
the filing of such a statement as does the issuance of a
discharge permit under the National Pollutant Discharge
5 /
Elimination System. To the extent that this require-
ment is anticipated in the planning process potential
environmental conflicts may be avoided.
Id. at 198-199.
u
Water Pollution Control Act §511(c)(l).
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C. The A-95 Clearinghouse Process
The coordination of environmental planning might
be achieved if it could be brought together under the
umbrella of an overall regional planning process. Although
regional planning has been discussed for many years the
first serious attempt to promote it on a national scale came
in the 1960's with the advent of a federally-sponsored
system of planning for metropolitan areas.
The Intergovernmental Cooperation Act of 1968
directs the President to establish rules and regulations
governing the formulation, evaluation and review of federal
programs and projects having a "significant impact on
arearand community development. ..." In addition,
the Demonstration Cities and Metropolitan Development Act
of 1966 requires that metropolitan areawide review bodies
be established to provide advisory reviews of local grant-
in-aid applications to the federal government for some
_z_y
35 programs covering physical development.
In response to these two pieces of legislation
the Office of Management and Budget promulgated Circular
8 /
Number A-95. By its provisions, applicants for most
Pub. Law 90-577, Oct. 16, 1968, §401(a); 82 Stat. 1103;
42 U.S.C.A. §4231(a).
!_/
Pub. L. 89-754, Nc?v. 3, 1966. §204; 80 Stat. 1262;
42 U.S.C.A. §3334
JL/
O.M.B. Circular Ar95, July 24, 1969, as amended.
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federal grants must notify the appropriate planning
agency (state, regional or metropolitan -- the designation
of which must have federal approval) and permit that
agency to comment on the project for which funds are
sought. The planning agency must be notified of the
applicant's intent to apply "at the earliest feasible time."
The notice must contain a description of the project and
its location, an estimated date by which a formal applica-
tion to a federal agency for funds will be made, and a
brief statement of whether an environmental impact state-
ment will be necessary.
Circular A-95 requires the planning agency to
make recommendations "for the purpose of assuring maximum
consistency of such project with state, regional, and
local comprehensive plans." The agency is also directed
to comment on the project's relationship to certain
specific objectives:
1. Appropriate land use for housing,
commercial, industrial, governmental,
institutional and other purposes;
2. Wise development and conservation
of natural resources, including land,
water, minerals, wildlife and others;
3. Balanced transportation systems, in-
cluding highway, air, water, pedestrian,
mass transit, and other modes for the'
movement of people and goods;
4. Adequate outdoor recreation and open
space;
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-173-
5. Protection of areas of unique natural
beauty, historical and scientific
interests;
6. Properly planned community facilities
including utilities for the supply of
power, water, and communications for the
safe disposal of wastes, and for other
purposes; and
_j_y
7. Concern fofc high standards of design.
The Clearinghouse agency has thirty days in which to inform
the other local governmental units which may be affected
by the proposed project, and, if necessary, to consult
with the applicant, and, if needed, an additional thirty
days to comment.
The A-95 review process has been able to provide
a strengthened communications network among local units
of government and between the various levels of government.
Clearly, the process can be used to inform local govern-
ments of the availability and potential of the various
programs. Technical expertise is also generally available
in the Clearinghouse to aid local government units, and the
A-95 process provides a useful vehicle for the attachment
of state, local and public comments to environmental im-
pact statements under NEPA.
Ibid. These objectives appear in §401(a) of the Inter-
governmental Cooperation Act of 1968. Supra, note'6> P- 171.
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D. Integrated Grant Administration (IGA) Program
The OMB has recently (January, 1972) begun the
broad use of an Integrated Grant Administration program,
by which two or more federal agencies work together in
meeting several interrelated requirements for an applicant's
_I0/
program of assistance. The purposes of the IGA program,
as recently set forth in an OMB memorandum, are:
(1) to provide a means to State and
local governments to use Federal as-
sistance more effectively and efficiently,
and to adapt that assistance more readily
to their particular needs through the wider
use of projects drawing upon resources
available from more than one federal agency
program or appropriation; and
(2) to encourage Federal State arrange-
ments under which local governments and
other public or private organizations
and agencies may more effectively and ef-
ficiently combine State and Federal
resources in support of projects of
common interest to the governments, agencies
and organizations concerned, 11 /
Federal regional councils are to assist appli-
cants in obtaining grant support from the various federal
programs by means of a single application. A mechanism
The IGA program is essentially an extension or sub-
stitute for joint funding legislation which Congress
has not yet passed although it has been introduced
several years running. See S. 2299, 93d Cong., 1st Sess.
(1973). The purpose, goals and objectives of the
legislation are identical to the IGA program.
11/
OMB Executive Summary Memorandum, dated 7/23/73 at
p. 2.
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-175-
is provided for integrating funding through a single "lead
agency," which is usually the one whose expertise and funds
will be most required. The funding and application process
is to be made more uniform in order to minimize admin-
istrative differences among the federal grant programs so
that the programs do not "frustrate those applicants who
choose to addressi their problems on an areawide and
_12/
coordinated basis."
During the past two years, IGA programs have
been going forward in 26 pilot projects ranging from
Indian governing bodies through regional planning organiza-
tions in metropolitan cities, counties and states. Almost
all the 26 projects have been funded, and the list will be
expanded to 65 projects in the next fiscal year. Since
January 14, 1972, an Interagency System Group, including
representatives from federal regional councils, states,
and public interest groups, has jointly assessed the ad-
ministration of the program. It found that
1. IGA concepts and principles are sound.
2. Barring certain minor exceptions the
procedures used to initiate and implement
the IGA systems are sound.
3. The program reduces the applicant's
administrative time in all phases of this
program.
12/
Ibid.
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-176-
4. The applicant has a chance to engage
in integrated planning, synchronizing the
use: of resources and eliminating the dup-
liction and overlapping of functions.
5. Provides each participating grantee
an opportunity to develop an areawide
strategy to address several requirements
in a single integrated work program.
6. Provides federal agencies the opportunity
to coordinate their participation in a
mutually reenforcing way to solve key
problems and provide needed services in
partnership with state and local govern-
ments. 13/
The primary means for providing the funds is
by a letter of credit, whereby the lead federal agency
places funds from a consolidated working fund in a local
bank which can be drawn by a grantee.
To qualify to act as one of these lead agencies
EPA must be able to use the letter of credit method of
making grants. It is expected the EPA will be fully
qualified to act as a lead agency within the next couple
of months. Participation in the IGA program will enable
EPA to provide a common funding mechanism for states that
wish to coordinate the operation of their various en-
vironmental programs as well as other related programs.
The integration of the management and budgeting processes
of the various programs should be of significant assistance
in achieving program goals.
13/
Id. at pp. 5-6.
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E. Limitations of Existing Methods.
The existing methods of coordinating federal
programs, all of which are of recent origin, demonstrate
a growing recognition of the need for better coordination.
All the methods seem to have produced real improvement.
However, for land use problems generated by conflicting
programs, none of the existing methods provides a
completely satisfactory solution.
For all its advantages and.successes, the National
Environmental Policy Act requires only that conflicts
between environmental and other goals be noted and given
consideration. There is no mechanism within the Act for
the resolution of such a conflict should it surface.
Moreover, NEPA applies only to a limited class of federal
or federally-supported activities and does not apply to
many state, regional or local activities which have a
14 /
substantial impact on land use.
Even more important, the timing of a release
of an environmental impact statement, the effectiveness
of which is largely dependent upon publicity, may hinder
_14/
A few states have adopted programs•similar to NEPA
requiring environmental impact statements with regard
to many state and local activities which involve
state or local governmental decisions or other
actions. See, e.cr.. California Environmental Quality
Act of 1970, California Public Resources Code, §21000
et seq.
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its effectiveness. The statement need not be released
until after the final decision making process with respect
to a particular project is well under way. But land ^use
planning must be undertaken at a much earlier stage to
prove effective.
The A-95 Clearinghouse process, while requiring
a mandatory review, also does not provide for a reconciliation
of conflicts. The A-95 process generally looks to a
comprehensive plan as the basis for its review -- and often
there is none, or its quality is dubious. In addition, the
process applies only to a limited number of projects and
has no direct effect whatsoever on implementation of
many of the various EPA programs. Moreover, if the
Clearinghouse is a Council of Governments or other body
in part dependent upon the funds of the local government
units whose projects it is supposed to review for its
very existence, this dependence makes an unbiased resolution
or coordination of these conflicts very difficult.
The Integrated Grant Administration Program is
too new to be definitively evaluated. One recent
commentator has suggested that in the first 18 months
15/
"the process has shown few significant achievements."
15/
C1ark, New Federalism Report/Tulsa Agreement Demonstrates
Attempts to Coordinate Grant Programs, 5 National
Journal Reports, No. 39, Sept. 29, 1973, at 1443.
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-179-
Th e process is being undertaken primarily by management
and budget officials, and is not designed to promote
resolution between conflicting program goals.
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CHAPTER IX
COORDINATED ENVIRONMENTAL PLANNING
A. The Goal
EPA was created to bring together the nation's
various environmental programs under a common umbrella.
Pursuant to EPA's programs, many states and their sub-
divisions are promulgating plans and undertaking enforcement
strategies which have or will have a major impact on the
use of land. However, each plan or strategy is typically
designed to achieve a single environmental goal rather than
the optimal achievement of all environmental goals.
In order to prevent conflict and avoid duplica-
tion among the whole range of federal, state and local
environmental programs, a system of coordinated environ-
mental planning should be applied to the whole panoply
of environmental plans, decisions and regulations of
state, regional and local governments which impact the
use of land. State, regional and local systems for con-
trolling development must be coordinated with the relevant
federal mandates in a manner which best achieves the
national environmental goals.
Various program branches of the EPA and its pre-
decessors have sought the advice of a number of consultants
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in recent years on the land use impact of particular
EPA programs. These consultants, with remarkable unanimity,
have recommended greater coordination of the methods for
determining the proper use of land. All agree that some
measure of coordination will be necessary if the particular
issue or issues to which this report is addressed are to
be solved, not only within and between federal agencies
and programs, but also with local and state governments.
The University of North Carolina's Center for
Urban and Regional Studies studied methods of implementing
environmental goals in local planning and decision
making. They concluded that a system for combining
isolated methods and tools into a single coordinated
planning process was needed, but that "some form of
intergovernmental framework" was also needed to guide
1 /
local planning.
The Rutgers air quality study, not yet completed,
focuses on NEPA and the A-95 Review process, both discussed
in more detail below. The report faults NEPA procedures
for releasing impact statements too late to affect the
state and local decision making process. With respect
to the A-95 Clearinghouse process, it observes that if
the reviewing agency is a Council of Governments — and-
LJ
E. J. Kaiser, e_t a_l., "Promoting Environmental Quality
Through Urban Planning and Controls" 405 (U. of No.
Carolina Center for Urban and Regional Studies, 197.3.J
-------
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it often is -- it may be difficult for it to perform an
unbiased review of those projects of its component units,
especially as the COG relies on such units for its own
financing. The report sees a need for broader programs
of state and regional environmental management.
Argonne National Laboratory, in a report pub-
lished in March of 1972, focused on the need for EPA to
supplement its role in coordinating federal environmental
programs by encouraging local and state governments to
engage in similar coordination. It went on to advocate
the merging of procedures and practices of groups and
agencies in environmental and land use programs and
the integration of land use and environmental factors
as well as socio-economic standards in transportation
_2_/
and other infrastructure plans.
This view is echoed in a recent (1973) paper
prepared for EPA's air programs branch by Daniel R.
Mandelker and Susan B. Rothschild. They point out that
encouraging greater coordination among federal, state and
local environmental and land use control programs will not
be sufficient if some method for resolving conflicts with
_3_y
federal mandates is not provided as well.
2-/
Argonne National Laboratory, "The Relationship Between
Land Use and Environmental Protection, " March-, 1972.
3_/
Mandelker & Rothschild, "The Role of Land Use Controls
in Combatting Air Pollution Under the Clean Air Act
of 1970."
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-183-
Another study, prepared by Alan M. Voorhees
& Associates, Inc., for EPA's Office of Air Programs in
1971, concentrated on the implementation of air pollution
programs. The consultants noted the lack of established
procedures for incorporating air pollution controls into
_JLJ
local plan-making.
It is becoming increasingly important for EPA
to give serious attention to coordination of its own and
other land use control programs. Public pressure is
mounting as the courts force EPA into increasingly rigid
enforcement of single-purpose goals. Unless methods are
found for optimizing land use decisions in light of all
valid goals public pressure could cause EPA's basic
statutes to be weakened.
This report, as well as those of the other con-
sultants, describes in general terms a goal toward which
EPA should strive -- a system of coordinated environ-
mental planning by the states and their subdivisions which
would ensure that land use decisions are made in a manner
providing the maximum possible achievement of EPA goals.
We have pointed out that recent efforts to co-
ordinate government programs, while producing some signi-
4 /
Alan M. Voorhees & Associates, Inc., "A Guide for
Reducing Air Pollution Through Urban Programs."
-------
- 184-
ficant benefits, all fall short of the desired goal. We
will next examine the possible ways in which EPA can take
the lead in encouraging the states to undertake an effec-
tive system of coordinated environmental planning.
B. Consolidated EPA Grants
EPA has considered the adoption of a "Consoli-
dated Grants Program" requiring only one grant application
and administrative mechanism for the funding of personnel
and facilities used for a program involving two or more
media. The objective of the program would be to simplify
grant administration by requiring only one grant applica-
tion and one administrative mechanism for the funding of
personnel. A recent EPA memorandum puts particular empha-
sis on the joint use of facilities and personnel on various
programs. For example, a single laboratory facility and
group of inspectors could perform services for all three
5 /
media.
In 1973 there were four states participating in
5 /
Intermedia Strategy Paper, Ch. VI at p. 9.
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-135-
a test of the consolidated grants program — New York,
Washington, Utah and Hawaii. Apparently the participating
states are satisfied with the results. The Governor of
Washington has been publicly quoted as saying, "For every
hundred strings attached before, we have clipped fifty of
_§_y
them with the Consolidated Grant." The New York State De-
partment of Environmental Conservation is reported to have
estimated saving over $200,000 from the Consolidated Grant
Program. Ten additional states are expected to be added
to the existing program this fiscal year.
Once the program is established EPA will be in
a better position to encourage the states to evaluate in-
termedia impacts within their own programs and coordinate
planning and regulation within the state. EPA could offer
assistance to the states and local authorities by pub-
lishing a series of guidelines and reports to which the
states and regional and local governments could refer in
the coordination of the various EPA programs and other
federal, state, regional and local programs and plans.
6_y
Id., at p. 8
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-186-
The purpose behind the creation of EPA was to
bring together the major environmental programs in a co-
_z_y
ordinated manner. Given the purpose for which EPA was
created, and the broad responsibilities given it by Con-
8 /
gress, it is clearly within the Agency's power to encourage
the states to undertake their own programs of coordinated
9 /
environmental planning and regulation.
7 /
See testimony of Roy Aih, supra, at p. 8.
_§_y
The Water Pollution Control Act recognizes that EPA
has broad responsibilities to undertake comprehensive
programs to control pollution over and above the
agency's specific program responsibilities:
The Administrator shall, after careful in-
vestigation, and in cooperation with other
Federal agencies, State Water Pollution Con-
trol agencies, interstate agencies, and the
municipalities and industries involved, pre-
pare or develop comprehensive programs for
preventing, reducing, or eliminating the pol-
lution of the navigable waters and ground
waters and improving the sanitary condition
of surface and underground waters.
See also, 40 C.F.R. §130.10(e), 38 Fed. Reg. 8034
(March 27, 1973). The Clean Air Act also directs
EPA to encourage "cooperative activities by the States
and local governments for the prevention and control
of air pollution" and appropriate state laws and com-
pacts relating to the control of air pollution.
(§102(a)).
9 /
A recent study of EPA released by Argonne National
Laboratory suggests such an "increase in pressure."
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-187-
EPA could publish regulations,
-------
-188-
C. National Land Use Policy Legislation
A bill which would give EPA an opportunity to
encourage states to coordinate their environmental plan-
ning with other state land use planning programs is S.268,
the Senate-passed Land Use Policy and Planning Assistance
10 /
Act of 1973
The bill provides grants to the states for the
development of a state land use planning process and its
implementation through a state-wide land use program which
must assure that:
1. The use and development of land in areas
of critical environmental concern within the
state is not inconsistent with the land use
program;
2. The use of land in areas within the state
which are or may be impacted by key facilities
is not inconsistent with the state land use
program;
3. Any large-scale subdivisions and other
proposed large-scale development within the
state of more than local significance in its
impact upon the environment is not inconsistent
with the state land use program.
10/
•H.R. 10294, the House Interior Committee's version
entitled "The Land Use Planning Act of 1973,"
has been reported out of that committee but has
been blocked in the House Rules Committee as of the
date of this report.
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-189-
By means of a National Advisory Board of Land
Use Policy, further review of potentially conflicting
policies is provided. The Board will consist of repre-
sentatives from a number of departments - Interior, Agri-
culture, Commerce, Defense, HEW, HUD, DOT, and Treasury -
and the Atomic Energy Commission, Federal Power Commission,
Council on Environmental Quality and EPA. The Act is
explicit in directing the Board to assist in the develop-
ment of consistent land use policies.
The Department of the Interior will administer
the program, but EPA has an important role in the Land
Use Policy and Planning Assistance Act as passed by the
Senate. First, under Section 203, a state's continued
eligibility for grants to implement the Act depends upon
the development of an adequate state land use program
which must include methods of implementation for (accord-
ing to Subsection (3)(F)):
Assuring that (i) any source of air,
water, noise, or other pollution per-
taining to the areas and development
activities listed in this clause (3)
will not be located where it will re-
sult in a violation of any applicable
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-190-
air, water, noise or other pollution
standard or implementation plan, (ii)
any developmental activities in com-,
bination with pollution sources will
not cause such violations to occur,
and (iii) the program is consistent
with the goals, policies, objectives,
standards and other requirements of
the Federal Water Pollution Control
Act, the Clean Air Act and other Fed-
eral laws controlling pollution;
Section 306(b) (2) provides that the Secretary
of the Interior shall not make a grant to any state until
the Administrator of EPA is satisfied:
that the State land use program of
such State is not incompatible with
the Federal Water Pollution Control.
Act, the Clean Air Act and other
federal laws control-ling pollution
which fall within the jursidiction
of the Administrator and that those
portions of the State land use pro-
gram which will effect any change in
land use within the next annual re-
view period are in compliance with
the standards, criteria, emission or
effluent limitations, monitoring re-
quirements, or other implementation
plans required by such laws.
As the Senate Report of the Committee on Interior
and Insular Affairs makes clear, the Act contains these
provisions to ensure the compatibility of a state land
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use program with the Clean Air and Water Pollution Control
11/
Acts and other federal environmental legislation.
The sponsor of this language explained on the
Senate floor that it was added:
to assure that the results of con-
centrations of people and vehicles
at such developments are anticipated
and planned for in overall programs.
This provision assures that the land
use program is supportive of and in
no way infringes upon these planning
activities [of the EPA and the States
implementing their plans]. The addi-
tion of this provision will also assure
that the land use program is consistent
with the goals, policies, objectives,
standards and other requirements of the
Federal Water Pollution Control Act, the
Clean Air Act, and other federal laws
controlling pollution. 12/
The Senate Report also emphasizes the importance which the
Senate attaches.to the Administrator's review of the state
land use plan under the Act, not only with respect to the
provisions of the Water Pollution Control, Clean Air and
11/ Senate Report of the Committee on Interior and Insular
Affairs, "Land Policy and Planning Assistance Act"
63 (June 7, 1973).
12/ 119 Cong. Rec. S11535 (June 20, 1973) As the
Senate debate of June 20, 1973 clearly indicates, a
modification of a preceding section, 203(a) paragraph
3, Clause F, was specifically amended to broaden
coverage from a showing that sources of air, water,
noise and other pollution do not violate applicable
pollution requirements and to also assure that new
developmental activities do not create violations of
the Pollution Control laws.
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other environmental acts, but also those portions of the
state land use program which will affect any change in
land use and their effect upon the standards, criteria,
emission or effluent limitations contained in any plan
which the states developed in response to the aforementioned
Federal anti-pollution acts.
The Congressional intent to provide some co-
ordination between environmental goals and other federal
goals is apparent both from the above language and the
makeup of the National Advisory Board on Land Use Policy.
The National Land Use Policy and Planning Assistance Act
is therefore meant to proceed in tandem with the anti-
pollution laws which are the responsibility of EPA to
administer and enforce, not to pre-empt any of the pro-
grams or state implementation plans thereunder.
EPA could reasonably take the position that it
is unable to properly evaluate the effect of the state's
larfd use program on the federal laws controlling pollution
unless the state establishes a system for coordinating
lan'd use planning and the environmental planning under-
taken pursuant to the various EPA programs with the land
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use program established pursuant to the Land Use Policy
Act. The lead times provided in the various drafts of
the land use policy legislation would give the states
adequate ,time to work out an effective system of co-
ordination. EPA could also use this time period to
develop more fully the standards it wants states to
achieve.
Such a policy would in no way infringe on the
responsibilities of the Department of the Interior to
administer the land use program; on the contrary, it
would greatly strengthen Interior's land use program if
the land use aspects of the state's air and water plans
were coordinated with1 the land use program.
D. Conclus ion
In summary, a need exists to coordinate various
environmental plans and regulations affecting land use.
The search for such a coordinating function is not new.
The National Environmental Policy Act, the A-95 Clearing-
house process, the EPA Consolidated State Grant Program,
and the 0MB Integrated Grant Administration program all
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represent recent attempts to provide.such coordination
for a variety of government programs. All have had a
measure of success, but it is not clear that the co-
ordinating function has yet been achieved.
The responsibility to encourage such coordinia-
tion is clearly on the shoulders of EPA. The separate
state environmental planning programs are typical of the
type o,f fragmented programs thait are, in Roy Ash's worcls,
. . . characteristic of organizational
responses to problems that were first
perceived independently. Such piece-
meal organizational structure becomes
inadequate when the interrelation of
the problem or the solution becomes the
dominant factor. 1-3 /
EPA has the responsibility and the authority to
encourage the states to coordinate their environmental
planning to avoid contradictory land use implications.
Passage of S.268 in its present form would enable EPA*
to; ensure that the environmental planning was also co-
ordinated with other state lavnd use programs.
13/
S'ee, Hearing on Reorganization Plan No. 3 of 1970,
i&efore a subcommittee of the House Committee on
Government Operations, 91st Congress, 2nd SessioVi,
page 45 (1970).
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EPA Authority Affecting Land Use
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