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Volume 5, Issue 11 — November 1975


The Procedures to Ensure Compliance by Federal Facilities With Environmental Quality Standards

by William R. Shaw

In Chattanooga, Tennessee, as in hundreds of other communities and states, air pollution is a vital concern. Consequently, the Hamilton County Air Pollution Control Board has been authorized to fight air pollution in several ways. One is to require that stationary sources of air pollution (e.g., incinerators, factories, hospitals, and even apartment complexes) obtain permits to continue emitting smoke and other gas or particulates into the atmosphere. The permit requirement is used to learn how much pollution such facilities are creating and, if in violation of local standards, how they intend to reduce it. A permit is required of every owner or operator of a stationary facility capable of producing air pollution. However, one local facility, the Volunteer Army Ammunition Plant, has refused to comply with this permit requirement. Its refusal is premised on the ground that because the plant is owned by the United States Department of the Army, although operated by a private concern, the plant is a federal facility,1 to which the County Board permit requirement does not legally apply. Consequently, litigation is now pending between the County Board and the Secretary of the Army to determine whether the Board has the authority to require that the federal facility obtain a permit.2 The federal officials responsible for the plant have promised repeatedly that the Volunteer Plant will comply with the County Board's air quality standards, but continue to refuse to submit to the County permit requirement. Local officials are skeptical; in their view, full compliance without a permit is illusory.

While this conflict was developing in Tennessee, a different procedure led to a different result in Estaceda, Oregon. The Eagle Creek National Fish Hatchery there is a federal facility owned and operated by the United States Fish and Wildlife Service. This hatchery had discharged pollutants into Eagle Creek which decreased the oxygen content, raised the temperature and created aesthetic problems. The state of Oregon requires a water discharge permit for each facility capable of polluting the waters of Oregon. Unlike the permit system in Chattanooga, however, permits enforcing the Oregon law are issued by the United States Environmental Protection Agency (EPA) if the discharger is a federal facility. As a result, the Eagle Creek National Fish Hatchery applied for a water discharge permit from the regional office of EPA, which issued a permit to the hatchery on the condition that the hatchery meet a compliance schedule requiring it to purify its water by December 31, 1976. The compliance schedule requires the purchase and installation of necessary waste water treatment equipment. There is no lawsuit or conflict between local and federal officials in Estaceda.


VEPCO at Fault: Penalties Imposed for Material False Statements Convey a Clear Warning to Nuclear Plant Licensees

The Atomic Safety and Licensing Board, which operates within the Nuclear Regulatory Commission,1 recently imposed the most severe penalties in its 13-year history on the Virginia Electric and Power Company (VEPCO), following its finding that VEPCO officials were responsible for a series of material false statements to the Commission. The false statements, 12 in all, were made between 1968 and 1973 at various stages in VEPCO's application for licenses to construct a four-unit complex of nuclear power reactors at North Anna, in rural Louisa County, Virginia. The penalties, $60,000 in fines and a three-part order requiring certain actions of VEPCO officials to prevent recurrences, are noteworthy for their magnitude compared to past penalties, and the novel forms of affirmative action imposed on VEPCO officials. Moreover, the findings imply a high standard of care in reporting of safety information by licensees and applicants for construction permits, which may have far-reaching effects on future reporting practices by private corporations and public utilities building nuclear power plants.

Allegations of false statements first came to light in August 1973, when a citizen group, the North Anna Environmental Coalition, based in Charlottesville, formally requested that VEPCO construction license proceedings be reopened to assess the safety impact of a geologic fault at the construction site. The Coalition charged that VEPCO officials had been apprised of the existence of a fault at the site as early as February 1970, but had failed to report it to the staff of the then-Atomic Energy Commission,2 as required by Commission regulations. Subsequent investigations, conducted in 1973 by VEPCO, independent geologists, and government officials, confirmed the existence of a fault running directly through the excavations for all four reactors. In June 1974, however, the AEC announced a final decision that the fault is "not capable," or inactive, within the meaning of its rules and regulations, and therefore poses no threat to public health or safety.3 Construction at the site was allowed to continue.

The Ninth Circuit Relaxes NEPA Standing in the Highway-Triggered Private Development Context

Californians are no strangers to freeway interchanges and their strategic importance to ambitious land developers. This widespread experience with the interchange oasis phenomenon may have played a part in an important new Ninth Circuit case1 that firmly subjects development schemes at highway access points to the requirements of the National Environmental Policy Act (NEPA).2 Judge Duniway's opinion for the unanimous panel displays a solid grasp of the realities of "private" land development projects and the vital role which governmental decisions regarding highway interchange location can play in them. More generally, it recognizes that municipalities have interests that may be adversely affected by nearby development projects; it is sensitive to the vulnerability of the physical environment to harm from development, harm that may not be detected without careful study; and it firmly opts for evaluation of these risks, through the NEPA environmental impact statement (EIS) process, prior to permitting any work on a project.

In legal terms, City of Davis represents a fusion of standing law, NEPA requirements, and federal highway statutes into a matrix calculated to ensure that the environment is adequately protected from helter-skelter roadside developments, and from unexamined federal actions generally.

Circuits Split on Whelther EPA May Require a State to Adopt and Enforce Clean Air Act Transportation Controls

Two U.S. Courts of Appeals have recently ruled1 that §113 of the Clean Air Act2 does not give the Environmental Protection Agency authority to require states, under pain of civil sanctions and penalties, to adopt or enforce particular transportation control measures as part of their implementation plans. The two decisions, which expressly reject a 1974 Third Circuit ruling that EPA does have such power under the Commerce Clause3 and §113, have dealt a blow to the beleaguered Agency's ability to lead and administer effectively the national air pollution control program.

The magnitude of the task of controlling air pollution from auto emissions in certain metropolitan areas was underestimated by EPA in its initial attempts to implement the Clean Air Act. It soon became clear that in some cities, because of topographic features or the sheer numbers of automobiles, the legislatively-mandated 90 percent reduction in per-vehicle emissions levels would not be enough by itself to assure achievement and maintenance of the health-related primary air quality standards established for certain pollutants. This was brought home to EPA by judicial rulings in City of Riverside v. Ruckelshaus4 and Natural Resources Defense Council, Inc. v. Environmental Protection Agency,5 which essentially ordered the Administrator to promulgate regulations, including restrictions on transportation if necessary, for the control of photochemical oxidants (a product of automobile exhausts and sunlight) and carbon monoxide, and to disapprove state implementation plans that did not provide for the timely attainment and maintenance of the national standards for these two pollutants.

Wasting Away: The Attack on EPA Authority to Regulate Beverage Containers Used at Federal Facilities

Obliged to enforce myriad laws that lack built-in incentives to compliance, buffeted by literally hundreds of conflicting lawsuits, whipsawed by a congressional combination of strict legislative deadlines and skimpy budgets, and straitjacketed by OMB overseers, the Environmental Protection Agency must be the most beleaguered administrative agency in American history.1

As if further to compound EPA's troubles, courts have recently begun to strip the Agency of its powers under existing law by narrow judicial construction. For instance, the Agency's attempts to pressure states into helping with the massive job of enforcing the Clean Air Act have recently been invalidated by two courts of appeals.2

The charge that EPA lacks legal authority to do what it sets out to do is now being taken up by a combine of industry groups and federal agencies bent on scuttling the Agency's recently drafted proposals for establishing a mandatory deposit on soft-drink and beer containers sold on federal facilities. Generally, the draft guidelines would require exaction of a minimum five-cent returnable deposit on all carbonated beverage containers sold at such federal installations as military bases, national parks, and public works projects. These proposals, not yet officially published in the Federal Register, were themselves slow to appear due to potential regulatee opposition. Although authorized by a 1970 statutory mandate,3 the guidelines were issued only under the pressure of litigation, a suit filed by environmental groups in 1974 to force EPA to obey the statutory mandate to promulgate "as soon as possible" guidelines on "solid waste recovery, collection, separation and disposal systems,"4 which guidelines would become binding on federal facilities upon publication in the Federal Register.5

Do Trees Have Trustees? National Park Service Has Fiduciary Duty to Protect Redwood National Park

The recent case of Sierra Club v. Department of Interior1 may supply a legal basis for compelling the Department of Interior to curtail activities on lands peripheral to any National Park when such activities have an adverse effect on it. The case may even permit the National Park Service to force the Secretary of Interior to go to Congress for funds for such environmentally protective actions if the Office of Management and Budget fails to provide them. On the other hand, on a narrower reading, the case may only apply to the Redwood National Park, because of unique features of the Act2 that created it.

The recent opinion follows Judge Sweigert's original decision filed in 1974,3 in which plaintiff's complaint, which alleged that logging activities on peripheral lands were damaging the Park, survived a motion to dismiss. In Redwood I, the court held that the Secretary of Interior has a general fiduciary obligation under the National Park System Act,4 which provides that the Park Service shall "promote and regulate the national parks . . . and to provide for the enjoyment of same by such manner and by such means as will leave them unimpaired for future generations." Redwood I also relied on language in an 1891 Supreme Court case, Knight v. United Land Association, which proclaimed that:

The Secretary is the guardian of the public lands. [He is obliged] . . . to see that the law is carried out and that none of the public domain is wasted or disposed of to a party not entitled to it.

Big Rivers Electric Corp. v. EPA: Sixth Circuit Vindicates EPA's Stand on Stack Gas Scrubbers

The Environmental Protection Agency won a signigicant victory in its battle to require stack gas scrubbers as the primary strategy for the control of sulfur oxides under the Clean Air Act1 with the recent Sixth Circuit decision in Big Rivers Electric Corp. v. EPA.2 The court in Big Rivers held that a power company that burns high sulfur fuel must provide for permanent emission controls (i.e., scrubbers) or show that such controls are unavailable. In the court's view, alternate control devices such as tall stacks or switching to low sulfur fuel during air pollution episodes, do not, by themselves, meet the requirements of the statute without such a showing.

Sulfur oxides, one of the six pollutants for which air quality standards were set under the Clean Air Act Amendments of 1970, are generated largely by fossilfuel power plants throughout the nation. There are essentially two methods for dealing with these emissions. The first, and the means preferred by EPA, is removal of sulfur oxides from the gas in the stack before it is released into the atmosphere. This removal is accomplished by mechanical and chemical devices known as stack gas desulfurization systems, or "scrubbers." These devices are relatively novel, and have experienced certain developmental and operational problems, but their performance record has improved significantly over the past year. Scrubbers are also quite expensive. TVA, with one of America's largest generating capabilities, has estimated that annual cost of installing scrubbers on its 12 coal burning plants to be $150 to $200 million as opposed to $17 million for one alternative, intermittent controls.3