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Volume 3, Issue 11 — November 1973

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Senate Passes Surface Mining Reclamation Act

On October 9, 1973, the U.S. Senate overwhelmingly passed the Surface Mining Reclamation Act,1 the first federal program of its kind for the regulation of coal surface mining activities and the reclamation of coal-mined lands. According to the terms of the bill, permits must be issued by a state regulatory authority before any person can engage in surface mining within a state. Each applicant for a permit must demonstrate that reclamation of the surface-mined land can be accomplished and the land restored to the "approximate original contour." Spoil piles and highwalls—the ugly, slide-prone cliffs often left after coal is extracted from slopes—are outlawed unless the "overburden" (earth above the coal seam) is insufficient to restore the approximate original contour. Criteria are established for designating certain areas of "critical environmental concern" as unsuitable for surface mining. The Senate bill now goes to the House, which is not expected to act until next year.

The Act provides minimum standards for coal surface mining and reclamation activities to be administered and enforced by the states, and by the Secretary of the Interior on public lands. Federal financial assistance and expertise will be provided to the states to improve regulatory and enforcement programs and to purchase abandoned or unreclaimed ruined areas for purposes of reclamation. Failure by a state to comply with the requirements of the Act will result in federal enforcement of a state program or establishment of a federal program under the authority of the Secretary of the Interior. In addition, the bill authorizes a study of means to improve techniques of deep mining.

Deep Water Ports: Energy Demands Versus Environmental Safeguards

In his energy message of April 18, 1973, President Nixon endorsed the construction of deep water ports, capable of accommodating supertankers, as the answer to the nation's predicted need for sharply increased petroleum imports in the foreseeable future. Such ports would provide moorings outside U.S. territorial waters from which foreign oil could be piped ashore or offloaded into smaller tankers able to use existing harbors. The president cited a CEQ study indicating that the use of fewer, larger tankers at deep water ports connected to the shore by pipelines would present less danger of oil pollution than do the numerous small tankers that now crowd conventional ports. Asserting that oil imports will expand in any event, Mr. Nixon argued that if the U.S. does not authorize construction, these ports will be built instead in the Bahamas and Canada, with a loss to the U.S. of jobs and capital. Noting that states cannot now license deep port construction beyond the three-mile limit, the president proposed legislation giving the Interior Department authority to issue such licenses.

This presidential endorsement of the deep water port concept in conjunction with the announcement of the nation's first comprehensive energy policy stimulated a prompt response on Capitol Hill, where the question of deep port construction has been under discussion for several years without any concrete result. In the meantime, however, several coastal states have been taking actions on their own. Delaware's Coastal Zone Act of 19711 forbids construction of deep water ports off the state's shores, and Maine has prohibited the on-shore terminal facilities that a deep water port would require.2 In New Jersey, a similar ban was deleted from the Coastal Zone Management Act of 1973 before final passage.3 Washington, California and Texas, on the other hand, have shown a positive interest in such ports through referenda, staff studies, and official statements. Louisiana has gone so far as to appoint a task force composed primarily of oil men, bankers, and industrialists to promote financing and development of deep water ports in the state's territorial or contiguous waters. This group recommended that a deep port be located about three miles off the mouth of the Mississippi River and has drafted legislation, subsequently enacted by the legislature,4 setting up a state agency to oversee construction and operation of deep ports. A Florida firm has also announced plans for a deep port 30 miles from shore near the entrance to Tampa Bay.

Administration Wins First Victory in Impoundment Battle

The Nixon Administration's losing battle on the issue of impoundment was the subject of a comment in the July issue of ELR.1 At that time, a number of courts had held that the Federal Water Pollution Control act Amendments of 1972 required the Administrator of EPA to allot the entire $11 billion authorized under the Act, and one court, while conceding that the government was not obligated to allot all authorized funds, ruled that the Administrator's impoundment of 55 percent of the $11 billion constituted a "flagrant abuse of discretion."

On August 17, however, a federal district court in California handed the Administration its first victory on the impoundment issue.2 The decision came on suits, consolidated by the court, by the city of Los Angeles and by Congressman George Brown, who styled his as a class action. After ruling that the actions were not barred on grounds of sovereign immunity, and the issue was not a political question warranting judicial abstention, Judge A. Andrew Hauk found that both plaintiffs lacked standing to sue. The court noted that in previous cases, plaintiffs had supplied affidavits averring that proposals for federal assistance in constructing waste treatment facilities had been rejected owing to the impoundment. Here, however, neither the city nor Representative Brown had shown that any injury to them had occurred or was likely to do so as a result of the impoundment. The court also noted that §505 of the FWPCA authorized any citizen to sue "on his own behalf" and, as the legislative history made clear, did not permit class actions.3

The Proposed Toxic Substances Control Act: Control of Unregulated Chemical Substances

In recent years, technology has contributed significantly to the fight against pollution. The new mechanisms presently being utilized to mitigate the harmful effects of noxious emissions and to improve the quality of waste effluents are exemplary of technological gains in the environmental field. There is, however, in contrast to this progress, an increasing concern that the product of other purported technological advances actually poses a serious threat to human health and the environment. Particularly alarming are recent findings that indicate that among the 300 to 500 chemicals introduced into commercial use each year are some that are dangerous to man. For example, polychlorinated biphenyls (PCBs) have been detected in dangerous levels in poultry; cadmium and mercury, in addition to constituting a source of environmental contamination, pose a serious health hazard; and the chloroethers are believed to be a significant source of water pollution and drinking water contamination.

These findings, and the apparent certainty that other chemicals with as yet undetected detrimental properties are in widespread use, illustrate the need for new means of regulating both new chemicals and those already on the market. Unfortunately, however, the environmenal legislation presently available, such as the Clean Air Act and the Federal Water Pollution Control Act, does not provide legal authority to prevent the manufacture and distribution of PCBs or other dangerous chemical substances. In addtion to the absence of regulatory authority, data needed to assess the impact of chemicals on human health and the environment is often not made available. This lack of technical information stems at least in part from the reluctance of many manufacturers to release information relative to the chemical substances that they produce. In some instances, the absence of data has meant that environmental health disasters have had to be experienced before toxic substances could be identified.

Executive Orders Regarding Federal Procurement and Oil Discharges

On September 10, 1973, President Nixon issued Executive Order No. 11738, which provides that federal contracts, grants, and loans may not be awarded to persons or facilities violating the Federal Water Pollution Control and Clean Air Acts. This directive supersedes Executive Order No. 11602 of June 29, 1971, which applied only to the Clean Air Act, and restates that order's provisions regarding exemption procedures, designation of convicted persons and facilities, and enforcement.

The order directs the Administrator of the Environmental Protection Agency to prepare and publish a list of persons and facilities that, despite conviction for violation of §113(c)(1) of the Clean Air Act or §309(c) of the FWPCA, have failed to correct the circumstances that led to their conviction. Persons on this list would be ineligible to receive federal contracts, grants, or loans. A clause requiring compliance with both statutes must be included in all federally awarded cntracts, grants, and loans. Federal contract and grant compliance officers are instructed to report suspected violations immediately, for enforcement action by the Department of Justice.

Executive Orders on Pesticides, Off-Road Vehicles in This Month's Issues

The Statutory and Administrative Materials section of this month's ELR includes two executive orders issued on February 8, 1972, restricting the use of poisonous chemicals for predator control on federal lands and limiting the areas on public lands in which off-road vehicles, such as trail motorcycles and snowmobiles, may be used. E.O. No. 11643 directs the heads of all federal agencies to prohibit the use on federal lands of any chemical toxicant for the purpose of poisoning predatory mammals or birds. Toxicants are also forbidden where their use against mammals, birds, or reptiles may cause secondary harm to humans, animals, or birds ingesting or otherwise coming in contact with the poisoned animal. However, an agency head may grant exemptions from the ban if, after consulting with the Secretaries of Interior, HEW, and Agriculture and the Administrator of EPA, he makes a written finding that an emergency exists that cannot be dealt with by other means. The finding must also state that such use is essential to the protection of human health or safety, the preservation of one or more wildlife species threatened with extinction, or the prevention of substantial irretrievable damage to nationally significant natural resources. All federal mammal or bird damage control programs must be conducted in a manner that contributes to the maintenance of environmental quality, and to the conservation and protection, to the greatest degree possible, of the nation's wildlife resources including predatory animals. The order modified (but curiously does not refer to) 7 U.S.C. §426 (1970),1 which vested authority to conduct animal destruction or control campaigns in the Secretary of Agriculture without describing methods to be used. Federal lands in metropolitan areas and those administered by the Secretary of the Interior pursuant to his trust responsibilities for Indian affairs are excluded from the new prohibition.

E.O. No. 11644 directs the Secretaries of Interior, Agriculture, and Defense, and the head of the TVA to issue regulations designating specific areas and trails on public lands under their jurisdictions on which off-road vehicles may be operated and areas from which they are to be excluded. Off-road vehicles are defined as any motorized vehicles capable of cross-country travel over land, water, marsh, ice, or snow. Trails and areas for off-road vehicle use must be located so as to minimize damage to soil, watershed, vegetation, wildlife and wildlife habitats, and to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses for the land in question or neighboring public land. Such areas and trails may not be located in officially designated Wilderness or Primitive Areas, but may be put in National Parks, Natural Areas, National Wildlife Refuges, and Game Ranges if the respective agency head determines that off-road vehicle use in these locations will not adversely affect natural, aesthetic, or scenic values. The agency heads are also required to promulgate regulations within one year prescribing operating conditions for off-road vehicles on the public lands in order to protect resource values and preserve public health and safety. The agencies themselves are directed to monitor the effects of the use of off-road vehicles on lands under their jurisdiction, prescribe penalties for violations, and establish enforcement procedures.