Improving regulatory effectiveness in Federal/State siting actions : environmental planning and the siting of nuclear facilities : the integration of water, air, coastal, and comprehensive planning into the nuclear siting process

[From the U.S. Government Printing Office, www.gpo.gov]

NUREG-0199
,oastal Zone
information 5 IN A SERIES OF 10
Center COAS TEA,- ZONE
INFORMWOON CENTER
/Improving Re, atory Effectiveness
in Federal/State Siting Actions
Environmental Plannim and the
Siting of Nuclear cilities:
The Integration of Water,
Air, Coastal, and
Comprehensive
Planning into the
Nuclear Siting
P r o c e S S

February 1977

Center for Natural Areas for
Office of State Programs
U.S. Nuclear Regulatory
Commission

. . . .... .
n
r Fa
0 @s

NOTICE

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13176

COASTAL ZONE
INFORMATION CENTER

NUREG-0199 February 1977
Environmental Planning and the
Siting of Nuclear Facilities: The
Integration of Water, Air, Coastal,
and Comprehensive Planning into
the Nuclear Siting Process.
John B. Noble, John T. Epting, Michael
C. Blumm, Stark Ackerman and
David W Laist

Improving Regulatory Effectiveness in
Federal/State Siting Actions
Prepared for the U.S. Nuclear Regulatory Commission
under contract No. DR-77-0539 by Center for Natural
Areas, 1525 New Hampshire Ave., N.W, Washington,
D.C. 20036

U.S. Nuclear Regulatory Commission
TK 9153 .C458

Improving Regulatory Effectiveness in Federal/State
Siting Actions
NUREG-0195
Success Factor Evaluation Panel
NUREG-0196
State Regulatory Activity Involved in Need for Power
NUREG-0197
State Perspectives on Energy Facility Siting
NUREG-0198
Environmental Plcmning andthe Siting of Nuclear
Facilities: The Integration of Water, Air. Coastcd. and
Comprehensive Plcmning into the Nuclear Siting Process
NUREG-0199
Federal/ State Regulatory Permitting Actions in Selected
Nuclear Fbwer Station Licensing Cases
NUREG-0200
Water Supplies and the Nuclear Licensing Process
NUREG-0201
Nuclear Power Plant Licensing: A New England
Perspective
NUREG-0202
State and Local Planning Procedures Dealing with Social
and Economic Impacts from Nuclear Power Plants
NUREG-0203
Alternctve Financing Meffiods
NUREG-0204

ACKNOWLEDGEMENTS

prepared under the direction of

John B. Noble, Esq., Director of law

Staff Merbers

John T. Epting, Enviromental Planner and
Project Coordinator
Michael C. Blumm, Esq., Assistant Director of']Law
David E. Laist, Coastal Ecologist
Stark Ackerman, Legal- Assistant

Legal Interns

Joel Blumstein
Gary Thompson
Bill Booth
Jim Cunnings
Jim Woeppel

Support

Rosemary T. Roberts
Diana E. Capers

John Epting was principally responsible for the portions of this
report on the Clean Air Act and the 701 comprehensive planning program,
in addition -to serving as project coordinator. Michael Blum was
principally responsible for the Executive Summary and the section
on NEPA, and, along with the assistance of David Laist, composed the
chapter on the Coastal Zone Management Act. Stark Ackerman and John
Epting combined in the writing of the Federal Water Pollution Control
Section. John Noble guided research, contributed portions to all
chapters, reviewed drafts of all the chapters, and ensured that the
study was responsible to the needs of the Nuclear Regulatory Commission.

Valuable background research and editing assistance were provided by
Joel Blumstein and Gary Thompson. Bill Booth, Jim Cummings, and Jim
Woeppel helped with the editing. As always, Rosemary Roberts spent
many long hours ensuring that the study was typed.

The Center for Natural Areas would also like to acknowledge the assist-
ance provided by Robert Ryan, Robert Jaske, Frank Young, and Stephen Salomon
of the Office of State Programs at the Nuclear Regulatory Cam-Lission.

Table of Contents (Executive Sunrory

I. Overview . . . . . . . . . . . . . . . . . . E.S.- 1

II. The Relationship of the Study to Increasing Federal/State
Efficiency in the Siting of Nuclear Facilities . . . . . E.s.- 3

III. The National Envirormvental Policy Act as a Positive Tool
to Increase Efficiency in the Siting of Nuclear Facilities . E.S.- 5

IV. Quick Sum-naries of the Federal/State/Regional Planning
Programs Affecting the Siting of Nuclear'Facilities . . . E.S.-12

A. The Coastal Zone Management Act . . . . . . . . . E.S.-13

B. The Federal Water Pollution Control Act . . . . . . E.S.-15

C. The Clean Air Act . . . . . . . . . . . . . E.s.-16

D. The HUD 701 Canprehensive Planning Assistance Program . E.S.-17

Executive Summary

I. Overview

During the 94th Congress, bills were introduced in both the Senate

(S. 3286) and the House of Representatives (H.R. 13512) that would have

modified the Atomic Energy Act in order to allow for the separation of

site approval frcm the Nuclear Regulatory Comrission's (NBC) facility

licensing actions. Although nuclear facility siting bills had been in--

troduced several times before, these two bills contained the following

provision (Section 102), not contained in previous bills:

The Nuclear Regulatory Ca-rmission, in cooperation
with other Federal and State agencies, shall con-
duct a study of methods to improve further the
procedures for Federal and State participation in
the review and approval, in areas other than pro-
tection against radiation hazards and protection
of the caumn defense and security, of sites for
utilization or production facilities. The study
should give particular attention to methods for
coordinating and reaching envirom-ental decisions
as efficiently as possible. The Chairman of the
Nuclear Regulatory Commission shall subrait the
results of this study together with any reccnrLended
legislation to the Congress within twelve months
of the date of the enactment of this Act.

Although these bills died with the adjourment of the 94th Congress,

the NFC has directed its staff to proceed with the study entitled Effi-

ciency in Federal State Siting Actions. The study is expected to be

completed by this May. As outlined in the NRCIs "detailed study plan,"
the study's overall objectives are:1

1. To identify key procedural and jurisdictional activity
involved in reaching enviromiental decisions and relate
this activity to Federal, State and private actions in-
volving siting reviews;

E.S.-l

2. To determine the extent to which coordinated activities
and long range planning actions affect the efficiency
of environmental decisionmaking;

3. Tb analyze options for coordinating and reaching environ-
mental decisions more efficiently and suggest definitions
and measurements of improved efficiency; and

4. To recommend, if appropriate bases can be justified, leg-
islative options for consideration by the Congress and
changes in the site approval procedures of NRC, other
federal agencies and the states.

As part of the NRC's study, the Center for Natural Areas (CNA),

which has had extensive experience in planning and helping to implement

enviromientally sensitive management programs at the federal, state,

and local levels, was contracted to.-assist. in the preparation of cer-

tain work elements. These work elements principally involve the iden-

tification of key procedural and jurisdictical activities related to

the siting of nuclear facilities, and the development of an information

base delineating ongoing activities that way affect future environmental
decision-making. 2 Pursuant to its contract with the NFVs Office of
State Programs, 3 CNA has undertaken a legal/institutional analysis of

four major federal programs which affect the siting of nuclear facili-

ties through the establishment of federal/state/regional planning pro-

cesses. In addition to describing the interrelationship betwen nuclear

facilities siting and the planning programs developed pursuant to the

Coastal Zone Management Act (CZMA), the Federal Water Pollution Control

Act CFWPCA), the Clean Air Act (CAA), and the Housing and Community

Develor-ment, Act (1170111 program), CNA has also focused on the planning-

related requirements imposed by the National Environmental Policy Act

(NEPA), particularly as it has evolved through judicial interpretation

and my-continue to evolve as a useful mechanism to coordinate other

E.S.-2

federal planrAng-related programs.

II. The Relationship of This Study to Incre@sing Federal/State
Efficiency in the Siting of Nuclear Facilities

As expressed by Robert G. Ryan, Director of NRC's Office of State

Programs, NRCIs current efforts to improve efficiency have resulted

largely from a "growing lack of coordination" in the federal/state reg-
ulatory processes that affect the siting of nuclear facilities. 4: one

of the principal objectives of NRC in devising various options to in-

crease efficiency in these regulatory processes is to define the term

Tlefficiency," as it relates to envirorm-ental decision-making. The NIC's

detailed study plan points out that while this term may indicate differ-
ent things to different people, efficiency might be defined as: 5

elimination of unnecessary responsibilities, co-
ordination to the extent practicable of necessary
responsibilities, focusing on significant issues,
and coordanation of nece ssary data requirements.

To this, CNA would add the caveat, as is recognized in NRCIs Staff
Working Paper on alternatives to achieve efficiency, 6 that "efficiency"

may be misleading if the term does not encompass the goal of effective

decisionmaking, which results only from a broadly coordinated regulatory

program, not merely from the development of a highly scheduled, tech-

nically oriented, standardized review procedure. In short, "efficiency"

should be viewed as connoting effective and coordinated decisionmaking

procedures that embrace all available alternatives and also that look be-

yond imediate short-term goals. This point was perhaps better made by

Mr. Ryan, who, in a speech before a recent National Governors' Conference

Workshop, stated that efficiency "connotes a public interest determination
idiich, over the long term, is equitable and practicable."7

E. S. -3

CNA believes that in its analysis of the federal/state/regional

planning processes included in this study, it has identified mechanisms

that can serve to make the nuclear facilities siting process more effi-

cient, vdiile maintaining and enhancing envirorm-ental safeguards. In

order to utilize these mechanisms, hova--ver, CNA suggests that there must

first be a general recognition of the inherent distinction between NIRC's

statatorily imposed "non-prcmotionalll role in nuclear facilities siting

and the necessity of considering relevant enviromentally-related plaming

requirements at early stages of the nuclear facilities siting process.

If, as noted in NRC's Staff Working Paper, "utility plans only make
coordinated sense if examined on a regional basis, ,8 then the various

planning processes described in this study can also only make sense if

there exist effective mechanisms to integrate them. While CNA believes

that several mechanisms exist, their effective utilization depends, in no

small measure, upon a general perception that NBC's proper role in th
e

licensing and regulation of nuclear facilities extends to ensuring the

environmental compatibility of proposed sites with ongoing planning pro-

cesses, in addition to ensuring that proposed facilities satisfy radio-

logical public bealth and safety criteria. NRC's role in assuring the

long-term. environmental con-patibility of proposed nuclear sites, as uell

as in maintainmg health and safety standards, was recently reiterated by
the Conmission's Assistant Director for Environmental Projects. 9 CNA sub-

mits that this role is clearly compatible with the NRC's "non-prCmotional"

obligations.

Mention must be made of why a regulatory agency, such as NRC, should

take into consideration plans formulated by other governmental entities,

E.S.-4

in making its licensing and permitting determinations. First, although

the planning programs described in this study vary as to their ccfnprehen--

siveness and their methods of implementation, the resulting plans all

constitute means to achieve ccmnonly accepted public goals, such as im-

proved air and water quality and better managemmt of coastal and other

resources. Since they are developed largely on the state and substate

levels, the individual plans are a reflection of particular state, regional,

and local resource management policies. Moreover, because they must meet

certain minimum federally prescribed criteria, the individual plans also

represent cornerstones for attaining the nation's expressed environmental

goals.

Second, there is a discernible movement toward applying these plans

more c-crVrehensively, so that the plans not only guide the regulatory

activities of the agency preparing and implementing the plan, but also

require consistency of regulatory actions taken by other state-level

agencies, and even agencies on the federal and local levels. For example,

both- the coastal and water quality planning processes contemplate the

development of plans that, once approved and implemented, will restrict

the ability of regulators to authorize activities that are not consistent

with -the plans. Because these plans may impose restrictions on the

issuance of regulatory authorizations, such. as required licenses and

permits for nuclear facilities, they-sinply cannot be ignored, either

fran a legal or a public policy, perspective.

TII. The National EnVironmental Polia Act as a Positive Tbol to
increase Efficiency in th& SLtILg of Nuclear 'Facilities-

In rejecting the notion that the results of the NRCIs current efforts

to improve efficiency in the nuclear facilities siting process will merely

E.S.-5

lead to "another recycle of the NRC standard review plan," Director Ryan

has stated that the NRCIs study is devoted to:

a fundamental examination of the roles of the
States and the Federal government in the enti-re
process of envirormiental decision-inaking under
the National Envirormental Policy Act of 1969.

As part of this "fundamental examination," CNA has undertaken an analysis

of the potential of NEPA to help satisfy the goal of increasing efficiency

in the siting of nuclear facilities. CNA has found that by ensuring that

its NEPA procedures are utilized to identify and encourage compliance

with applicable federal/state/regional plans that affect nuclear facilities

siting, the NRC has substantial opportunit-ies to increase cooperation and

understanding of the federal-state-utility interface. This, in turn,

should result in significant reductions in duplicative administrative

effort, and thus foster the goal of increased efficiency.

The starting point for employing the NEPA process as an effective

coordinative mechanism is a realization that, once implemented, all of

the federal/state/regional planning processes described in detail in this

sbAdy will exert a considerable influence over the siting of nuclear

facilities. Because the entities principally responsible for devising

and implementing these plans are the states, when the various plans begin

affecting the issuance of regulatory authorizations, the states will have

powerful tools at their disposal with which to influence the siting of
nuclear facilities. 12

The state's increased involvement in environmental planning should

not, however,be viewed as being incompatible with the goal of increased

efficiency. As aptly put by Director Ryan, an essential prerequisite to

E.S.-6

increasing ef f iciency in the nuclea siting process is to "return to the

States the decision-nuking ability that we. in the Federal establishment
13
have preempted in our search for idealized solutions." As the.results

of this study indicate, the states already possess sufficient author-

ities to plan for and regulate the siting of nuclear facilities from a
greater than local perspective. 14 Thus, there is no compelling need for

additional legislative action to provide the states with this authority.

What is needed, however, are nx@-isms on the federal level to

ensure that the states utilize their authority in a comprehensive and

effective manner, and that they do not act arbitrarily or capriciously

in their siting detexnunations. The findings of this study illustrate

that in the case of the siting of nuclear facilities, the NRC already

possesses, in its NEPA review procedures, a potentially effective mech-

anim to ensure that the states do not ignore the national interest in

energy facilities siting vd-en formulating their envirormental planning

programs. For example, before a coastal zone management plan or water

quality plan developed pursuant to section 208 of the FWPCA can receive

federal approval, the federal agencies responsible for the administration

of the programs (the National oceanic and Atmospheric Administration and

the Enviromental Protection Agency, respectively) must prepare and dis-

seminate enviroruL-ntal impact statements (EIS's) on the programs. Con-

sequently, the NRC, as well as interested members of the public, will

have an opportunity to review and comment on these plans before they
are implemented. 15

Thus, the NEPA review process affords a significant opportunity for

both the Commission and the public to assess the implications of pro-

posed plans on the siting of nuclear facilities. The NEPA process also

E. S. -7

provides an opportunity to review the plans in terms of how effective

they nay be in fulfilling the obligations imposed by the controlling

statutes and implenvanting regulations, particularly the various re-
quirements to coordinate with related planning activities. 16

The NEPA process, therefore, can serve as a valuable mechanism for

understanding both the contents of particular state (and.substate) plans

and their relationship to the federal goals and programs under which

they were established. By developing mechanisms to effectively review

these plans as to their potential impact on the siting of nuclear energy

facilities, the NFC can take a substantial step towards fostering effi-

ciency in siting determinations.

But the NEPA process can contribute a good deal mre to the effi-

cent siting of nuclear facilities than providing an understanding of

state planning activities and their relationship to broader federal

policies. One of NEPA's substantive policies, embodied in section 101(b),

is "to improve and coordinate fed6xal plai@s, functions, programs and
resources. ,17 While the judiciary has not yet mved to interpret this
provision as nk-uidating coordination of related federal programs, 18 such

an interpretation would certainly appear to be consistent with the goals

of NBC's current efforts to increase efficiency in nuclear facilities

siting. Thus, by relying on the national policy established by section

101(b) of NEPA in its review of proposed plans that could affect siting

determinations, the NRC can encourage the federal agencies administering

the planning program to strive for more eff icient coordination between

related planning activities. This would not only eliminate unnecessary

administrative overlap in iuplementing the program, and thus increase

E.S.-8

their efficiency, but would also result in more effective and camprehensive

enviromental management.

Thus, the NEPA review process can be utilized as an effective mans

to encourage more cohesive environmental planning both on the state and

federal levels. It can and should, moreover, be employed by NRC to en-

sure that its applicants establish effective coordination and consultation

with the entities responsible for implementing envirorn-entally related

plans. This could be accmplished by making certain alterations in the

CmuLission's regulations implementing NEPA and in its Regulatory Guides
for applicants, as discussed in the chapter of this study on NEPA. 19

The effective integration of these planning processes into NRC's

review procedures may have an especially important role to play with

respect to the Cam-Lission's-still develcping Early Site Review (ESR) pro-

visions. In this regard, CNA would issue the caveat that the potential

relationships between ESR, the NEPA review process, and other environ-
mental planning programs have not been examined in detail in this study. 20

This was due largely to the fact that the Caru&ssion has not yet issued
final regulations on ESR, 21 and because the potential of ESR to help

increase efficiency in siting determinations is being considered under
a separate work element of NRC's efficiency study. 22 CNA suggests, how-

ever, that a hard look be taken at the potential implications that ESR

may have on the NRC's NEPA review process and on the other enviroment-

ally related planning processes discussed in this study.

M-Lile it appears that the NRC can take a significant step toward

the goal of increased efficiency by altering its IU2A regulations and

it.s Regulatory Guides, the need for legislative amend-aents is less

E. S. -9

apparent. Legislative amendments to the existing statutory structure,

such as the delegation of certain NEPA responsibilities to the states,
are a principal source of concern for environmental interest groups. 23

It is, moreover, far frcin clear that delegation would serve to satisfy

the desires of utilities to reduce administrative overlap and increase
federal control aver the dilatory state actions, 24 since it would ef-

fectively eliminate a potential means of federal oversight over state

environmental planning activities. Furthermore, the ability of delega-

tion to achieve the goal of. increased efficiency in the siting of nuclear

facilities is made even more doubtful by virtue of the fact that the

national interest in the siting of these facilities will often require

interstate considerations, and the states have indicated that they are

opposed to the creation of interstate entities which have the power to
make siting detenninations.25

The effective utilization of the NEPA review process by NRC can,

therefore, make significant strides toward achieving more efficient

facilities siting determinations. It can do this in three ways. First,

by providing an cpportunity to review and camment on envirorukentally@

related plans, the NRC can both better understand the implications of

these plans upon nuclear facilities siting decisions and ensure that the

plans do not arbitrarily exclude nuclear facilities. Second, by relying

on the substantive policies declared in section 101(b), the NRC can en@-

courage the federal agencies acIministering the planning programs to

achieve more successful coordination with closely related programs. This

would not only serve to foster the NIRC's goal of efficient nuclear siting

determinations, but would also help to achieve the national goal of more

E.S.-10

coherent and cohesive environmental planning. Third, by providing strong

incentives to its applicants to consult with and coordinate their activities

with responsible state planning entities before suhn-Litting applications to

the Commission, the NRC could at once acknowledge the significant role

which the states must play in making nuclear siting determinations and

also reduce administrative burdens on its own staff.

The NRC Staff Working Paper on potential alternatives to achieve in-

creased efficiency in nuclear siting decisions, while noting that there

appears to be no single cause for delays in the nuclear facilities siting
process, makes the following observation: 26

... NEPA related enviromental laws are testing
the democratic process resulting in overlapping
and duplication of laws and procedures. This
destabilizing effect on the regulatory process,
is helpful to the extent that past experience
allows improved focus on the diversity of issues.
It now appears that we have reached the stage
where Ienvironmental review-can be reorganiz@K!
into the effective management tool it
to be. (enphasis added)

While fully supporting the last sentence of the above quotation, CNA,

subnats that the findings of this study illustrate that the NEPA pro-

cess itself is not the cause of "duplication of laws and procedures."

On the contrary, the MTA process can serve to reduce unnecessary over-

lap of environmental review. In order to. do so, however, it must be

viewed quite differently than it generally has been in the past. As

is illustrated by the judicial decisions discussed in the chapter on
NEPA, 27 the NEPA process haLs been employed primarily as a reactive

device to compel NRC and other Federal regulatory agencies to undertake

certain enviromental considerations in its decisionmaking processes.

CNA suggests that this historical ea#iasis upon NEPA as a reacti-ge device

E.S.-11

bas served to obscure its potential role as a positive mecbanism, to reduce

duplicative administrative processes, and thus increase efficiency in en-

vironmental review.

The NEPA process will not, however, realize its full potential as a

means to ensure that administrative economy is achieved, both on the

federal and state levels, unless federal agencies, such as NRC, reeval-

uate the more positive possibilities which the process can offer to increase

efficient decisiomaking. In order to do this, there must be a willingness

to engage in the type of "fundamental examination" of the NEPA process
wbich Director Ryan mentioned. 28

IV. Quick Summaries of the Fede-ral/State/Regional Planning Programs
Affecting the Siting of Nuclear Facilities

The NEPA review process can be employed by NRC as an effective mechanism

to review individual state and substate plans only if the Commission is first

familiar with the policies and requirements embodied in the parent federal

program under which the plans are established. The final four chapters of
this study are devoted to explanations of fo@r principal, federally estab-

lished, state (and substate) iRplemented planning programs which can affect

the siting of nuclear facilities. CNA believes that an understanding of the

policies, goals, and means of implementing these programs is an essential

first step if the NEPA process is to realize its full potential as a mechanism

to increase efficiency in energy facility siting decisions. The "quick sum-

maries" which follow are not, however, substitutes for the detailed analyses

contained in Chapters II-V of this study. The numbers in parenthesis are

references to the analyses contained in those chapters.

E.S.-12

A. The Coastal Zone Management Act (CZMA)

The CZMA constitutes the first major federal effort to encourage

states to institute coaprehensive land and water use planning processes.

Under this program, coastal states, including Great Lakes states, are

to develop and implement their own management programs for coastal re-

gions. With the assistance of federal funds, these state programs must

be developed in accordance with certain minimum federal criteria.

Following a program. develoFnent period of up to four years, indi@-

vidual state programs must receive federal "306" approval in order to-be

eligible for continued federal funding. Those states receiving federal

approval, which to date includes only the state of Washington, will also

receive a considerable amount of leverage over federal activities that

might affect land and water uses within their coastal zones. This in-

creased leverage is the result of the MA's federal consistency pro-

visions 4iich require that all federal activities, including the issuance

of licenses and permits and the granting of federal financial assistance,

be conducted consistent with federally approved CZM Program (pp. 41-48).

In the case of the.NRCVs licensing and permitting functions, this unique

attempt at federal accaTmodation of state interests mans that an appli-

cant must obtain a state CZM verification of consistency with its CZM

plan before the NFC will issue a license or permit. This federal-state

relationship established by vir-tue of section 307(c)(3)(A) of the czMA,

is in many respects similar to the certification requirements under

section 401 of tIm- FWPCA.

The, federal consistency requirements make it highly advisable that

federal agencies such as the. NFC, take-an active interest in the develop-

E. S. -13

ment. of state CZM programs before they receive federal approval. Only

in this manner can the added state responsibilities envisioned in the

CZMA be coordinated with the federal interests. In order to assure

that the states' plans do not unnecessarily impose burdens on federal

programs, the CZKk provides a number of opportunities for interested

federal agencies to participate in develcgnent of state C2M programs.

For example, states are required to provide interested federal agencies,

including NW, an opportunity to "fully participate" in the development

of their CZM programs (pp. 50-51). In addition, after a state's program

is submitted for federal approval the NBC will have an opportunity to

comment upon its contents through the NEPA review process (p. 52). Before

a state's program can receive federal approval, the CZMA requires that

these comments receive "adequate consideration" (p. 51).

State CZM programs must also include certain planning elements that

will affect the siting of nuclear facilitiesf including a boundary de-

13-neation of the coastal zone, defini-tions of permissible land and water

uses, the development of guidelines on the relative priority of uses,

and the designation of particular geographic areas for'special considera-

tion (pp. 58-62). Perhaps of even greater significance to the siting of

nuclear facilities, states mast give "adequate consideration to the na-

tional interest" in facilities siting and must ensure that uses of re--

gl.onal benefit are not arbitrarily excluded from the coastal zone (pp.

53-58).

Recent mendments to.the CZMA require states to develop a planning

process for the siting of energy facilities in or affecting the coastal

zone (pp. 67-69). The amendments also authorize a Coastal Energy DTpact

E.S.-14

Fund to provide financial assistance to coastal states to plan for and

resspond to the consequences of increased energy-related activities in

their coastal zones (pp. 63-67). Finally, the An'LencIments establish

an interstate planning program, which could be utilized to encourage

the development of interstate energy plans (pp. 69-70).

B. The Federal Water Pollution Cont-rolAct (FWPCA)

By virtue of certain provisions of the FWPCA, principally sections

316 (pp. 82-84) and 401 (pp. 84-89), the FNqPCA has already exerted a

considerable influence over the NIRC's licensing and permitting functions.

In the near future, hovA--ver, statewide and areawide water quality nan-

agenient plans developed pursuant to sections 208 and 303(e) will also

play a large role in nuclear facility siting decisions (pp. 89-102).

Designed to assist in achieving inproved levels of water quality,

water quality nanagement plans are to include a regulatory program to

control "the location, inodification, and construction of any facilities"

that might affect water quality (p. 90). And while no plans have yet

received federal approval, once a plan is approved, no '1402" effluent

permits will be granted whichare inconsistent with the plan (p. 98).

Although the relationship between the 401 certification and approved

208 plans has not yet been clearly delineated by the Environmental

Protection Agency, it is obvious that water quality management plans

will play a crucial role in the siting of nuclear facilities which

discharge thermal effluents.

Since water quality management plans are actually land-based mech-

anisms to achieve prescribed levels of water quality, including a state-

wide anti-degradation policy, any future revision to prescribed water

E. S. -15

quality levels must be reflected in the plans' management mechanisms

(pp. 97-102). Thus, water quality management plans must be viewed as

flexible, evolving regulatory programs which will exert a substantial

influence over the siting of nuclear facilities.

The Second Memrand:um of Understanding between NRc and EPA (pp.

102-06) provides an opportunity for the NBC to utilize information

and analyses developed in connection with water quality management

plans in making site suitability determinations. It should be noted,

however, that unless a site review conducted under the applicable

water quality plan is essentially equivalent in scope and depth to

that required by NRC under NEPA, it will not serve to relieve the

Ccmmission of its duty to consider alternative sites (pp. 104-06).

C. The Clean Air Act (CAA)

The CAA establishes a regulatory framework for attaining and

maintaining national ambient air quality standards (pp. 111-13) and

for preventing significant deterioration in areas presently cleaner

than required by the national standards (pp. 117-221). The primary

mechanism for carrying out the provisions of the CAA is its require-

ment that each state develop and implement a "state implementation

plan" (pp. 114-16). -

Because there is at present no ambient air quality standard for

radioactive particles (pp. 137-41), the CAA does not directly influ-

ence the siting of nuclear facilities. It does, however, have a sub-

stantial indirect affect, since federally established standards

enforced through state implementation plans can control the siting of

other energy facilities, such as fossil-fuel power stations (pp. 125-34).

E.S.-16

Thus, in areas where the CAA precludes the siting of fossil fuel plants,

nuclear facilities may offer an alternative for meeting electric energy

demands that will not exceed established air quality standards.

Unlike coastal zone managenmt and water quality plans now being

developed, state implementing plans are already in effect. Indeed,

the CAA's elaborate federal/state planning relationship is already in
place. 29 It my, therefore, serve as a useful example of the potentials

and pitfalls inherent in establishing a nation-wide federal/state plan7

ning program. The uTlementation of state air quality plans is also

being coordinated with other federal-state planning programs, such as

the HUD 701 program (pp. 136-137).

E. The HUD 701 Ccoprehensive Planning Assistance Program
(701 Program)

The 701 program provides funds to states, large cities, urban

counties, areawride planning organizations, Indian tribal groups or

bodies,and other local units of govenurkent to development caVrehensive

plans. That will include, at a minimum, a housing element and a land

use element (pp. 147-53). Unlike air, water, and coastal zone m@mage-

nent planning, the 701 program lacks effective enforcement

nechanisms to ensure that plans are irrplemented (pp. 153-55). Thus,

individual 701 plans may vary widely in scope, method, and effectiveness.

701 planning does have the potential, how-ever, for exerting consider-

able influence over energy facilities siting decisions (pp. 150-53). In

this regard, 701 plans must address a number of factors concerning the

interrelationships between land use plans, facilities siting, energy

conservation, and future ccmmmity growth.

E. S. -17

Since one objective of the 701 program's land use element is to

strengthen coordination of land use policies betue-en various levels of

goverrment, there are significant opportunities for-entities developing

701 plans to integrate their efforts with related planning activities

(pp. 149-50). For example, agreements have been signed between HUD's

701 office and the Office of Coastal Zone Management@ Environmental Pro--

tection Agenc y (Water and Air Programs), and the Departuent of Interior's

Bureau of land Management (p. 148). These agreements are designed to

facilitate the coordination and preparation of land use policies and

plans.

The NFC might wish to consider the potential role which an inter-

agency agreement with the BUD 701 program might play in expediting

facilities siting decisions. It would seem that 701 planning entities

could assist NRC and its applicants by providing technical planning

assistance and data sources to ensure that efficient siting determina-

tions are made in light of applicable 701 plans. In this regard, it

way be useful to study the experiences of jointly funded 701 - Federal

Energy Administration dEmonstration projects which are designed to

illustrate potential coordination mechanisms and relationships between

energy siting and growth/land use policies (pp. 151-152).

E.S.-18

Footnotes (Executive Summary)

1. Nuclear Regulatory Com-nission, Office of State Programs,
Efficiency in Federal/State Siting Actions, Detailed Study
Plan (NURBG 0128, October, 1976) p. 2.

2. Id., detailed study tasks 1.3 arxi 2.3.

3. Purchase Order No. DR-77-0539, Dec. 16, 1976, as amended,
Feb. 1, 1977.

4. Robert G. Ryan, "Efficiency in Federal/State Siting Actions:
Perspective of a Federal Regulator" (speech presented at the
National Governors' Conference Workshop on Efficiency in
Federal/State Siting Actions, Atlanta, Ga., Dec. 15, 1976),
p. 2.

5. NRC Detailed Study Plan, supra note 1, p. 6.

6. NRC Staff Working Paper, "Some Potential Alternatives To Achieve
Efficiency in Federal/State Siting Actions" (Jan. 28, 1977),
pp. 2-3.

7. Ryant supra note 4, p. 7.

8. -NRC Staff Working Paper, supra, note 6, p. 4.

9. See Caments of the Nuclear Regulatory Commission on the
Department of Ccnmexce's Proposed Regulations Duplement-iiig
the Coastal Energy Impact Fund (Dec. 2, 1976).

10. See, e.g. D. Mandelker, "The Role of the Local Ccrriprehensive
Plan in Land Use Regulation," 74 Michigan law Review, 899
(1976); and Cannent, "Comprehensive Land Use Plans and the
Consistency Requirement," 2 Florida.State U. law Review
766 (1974).

11. Ryan, supra note 4, p. 5.

12. Even areawide water quality plans and "segmented" coastal
zone plans must be coordinated with statewide water
quality and coastal zone plans,respectivelyonce the state
plans are implemented. one notable exception is the HUD
"701" comprehensive planning program, which, while it does
seek to establish plans on the state level, also provides
assistance to exclusively local planning efforts. It should
be noted, however, that coordination of these local plans
with mare state-oriented air, water, and coastal planning
processes has received strong encouragement through the
signing-of interagency agreements. See, Part V, "HLID 701
Program, 11 p. 148.

E.S.-19

13. Ryan, supra note 4, p. 5.

14. For example, federally approved coastal zone management Plans
may, by virtue of section 306(c)(B) of the CZMA, in effect,
override local zoning authority, after notice and an opportunity
to comment is provided to local entities. See Part II, "CZMA,"
p. 73.

15. State implementation plans (SIP's) under the CAA and HUD "701"
comprehensive plans stand on a somewhat different footing with
respect to EIS preparation. Section 7(c)Cl) of the Energy
Supply and Environmental Coordination Act of 1974 (P.L. 93-319),
which amended the CAA, exempts actions-taken under the Act from
mandatory compliance with NEPA, however, is voluntarily
preparing EIS's regulations which-prescribe substantive cri-
teria for SIP's (see 39 Fed. Reg. 16186, May 7, 1974). In ad-
dition for any revisions in SIP's proposed by the states, EPA
will prepare a technical support document, which will be made
available to the public.

With.respect to "701" plans, RUD's regulations require state
and substate entities receiving federal planning assistance to
prepare an environmental assessment when the- plan would affect
major commnuity facilities, utility system, and transportation
system (see 24 C.F.R. 5 600.65). In addition,-HUD expects to
soon prepare a programmatic EIS on the entire 170111 planning
program-

Thus, while neither SIP's nor plans developed under the "701"
program are subject to the same kind of NEPA review as coastal
and water quality plans, mechanisms are available to review
the contents of these plans. It should be noted, however, that
coastal and water quality plans are likely to exert more direct
impacts on the siting of nuclear facilities.

16. Examples of requirements to coordinate the various planning pro-
grams described in this study are discussed throughout the study.
See e.g., Chapter II, "CZMA," pp. 70-75; Chapter III, FWCPA,"
pp. 93-94; Chapter IV, CAA," pp. 122 136; Chapter V, 701
Program," pp. 146, 148-49.

17. For a discussion of the potentials of section 101(b), see Chapter
If "NEPA," pp. 22-24.

18. See, generally, Chapter I, "NEPA," pp. 7-19.

19. See Chapter If "NEPA," pp. 24-30. If the Commission does
amend its NEPA regulations, it.should utilize the procedures
provided by the office of management, and Budget's Revised
Circular A-85 (Jan. 20. 1971), in order to allow the states
an opportunity to review and comment on potential revisions.

E.S.-20

ission of ESR in the context of NEPA review,
TEPA," pp. 29-30.

3ed regulations on ESR on April 22, 1976
35). See also Nuclear Regulatory Commission,
r Reactor Regulation, Early Site Reviews
ear Power Stations: Policy, Procedures,
hnical Review
Option (Sept., 1976).

dy Plan, supra note 1, study task 2.4.

i of delegation of EIS preparation which has
ly authorized, see Chapter I, "NEPA," pp. 17-18.

ig Paper, supra note 6, p. 2.

"NEPA," pp. 7-19.

tpra, and accompanying text.

ects of this relationship have however, been
the states in the Supreme Court. The Court Is
forthcaning decision, in EPA v. Brown (Docket No. 75-909),
should establish more firmly- the respective roles of the
federal government and the states in. controlling air pollution.

E.S.-21

February 8, 1977

ENVIROMENTAL PLANNING AIM SITING
OF NUCLEAR FACILITIES: THE INTEGRATION
OF WATER, AIR, COASTAL, AND COMPREHENSIVE
PLANNING INTO THE NUCLEAR SITING PROCESS

Contract # DR-77-0539

prepared for

THE NUCLEAR REGULATORY COMMISSION
OFFICE OF STATE PROGRAMS

prepared by

THE CENTER FOR NATURAL AREAS

Washington, D. C.; South Gardiner, Me., Los Angeles, Ca.

Table of'Contents

Section I - The National Envirorinental Policy Act . . . . . . . . . 1

A. Introduction and Overview . . . . . . . . . . . . . 1

B. NEPA's Statutory RequirEments . . . . . . . .. . . . 4

C. Significant Judicial Interpretations . . . . . . . 7

D. Future Directions - NEPA as a Coordinative
Mechanism . . . .. . . . . . . . 19

E. The Nuclea Regulatory Ccmission's Existing
NEPA Procedures . . . . . . . . . . . . . . . . . . 19

Footnotes

Section II The Coastal Zone Management Act . . . . . . . . . . . . 32

A. Introduction . . . . . . . . . . . . . . . . . . . . 32

B. The Role of the States in Developing CZM Plans. . .33

C. Federal Consistency . . . . . . . . . . . . . . . . 41

D. Federal-State Cooperation and Coordination . . . . . 48

E. Required Planning Elements of CZM. Programs . . . . . 58

F. Planning ElEments Added by the Coastal Zone
Management Act . . . . . . . . . . . . . . . . ... . 62

G. Potential Mechanisms to Coordinate Coastal Zone
Planning with Air, Water, and Ccmprehensive
Planning . . . . . . . . . . . . . . . . . . . . . . 70

Footnotes

Section III - Federal Water Pollution Control Act . . . . . . . . . . 76

A. Introduction . . . . . . . . . . . . . . . . . . . . 76

B. The Permit Process . . . . . . . . . . . . . . . . 78

C. Section 316 - Thermal Discbarges . . . . . . . . . . 82

D. Section 401 - Certification . . . . . . . . . . . . 84

E. Section 208 and 303: Planning Requirements . . . . 89

1. Introduction . . . . . . . . . . . . . . . . . 89

i Section 208 . . . . . . . . . . . . . . . . go

ii Section 303 . . . . . . . . . . . ... . . . 91

iii Development of the Continuing Planning
Process . . . . . . . . . . . . . . . . . . 91

2. Water Quality Managemmt (WQM) Plan . . . . . . 94

3. Revision of Water Quality Standards and the
Antidegradation Policy . . . . . . . . . . . . . 99

F. The Second bkn=ardum of Understanding between
NRC and EPA . . . . . . . . . . . . . . . . . . . 102

Footnotes

Section IV The Clean Air Act Amendments ... . . . . . . . . . . 107

A. Overview . . . . . . . . . . . . . . . . . . . . . 107

B. Provisions of the Clean Air Act of Interest
to the NRC . . . . . . . . . . . . . . . . . . . . 111

1. National Ambient Air Quality Standards . . . . 111

2. Performance Standards for New Stationary
Sources . . . . . . . . . . . . . . . . . . . 112

3. Emission Standards for Hazardous Air
Pollutants . . . . . . . . . . . . . . . . . . 113

4. State hTplementation Plans . . . . . . . . . . 114

C. Land Use and Siting Implications of the Clean
Air Act . . . . . . . . . . . . . . . . . . . . .. 116

1. Background . . . . . . . . . . . . . . . . . . 116

2. SIPs and Significant Deterioration . . . . . . 117

.3. Review of New Stationary Sources . . . . . . . 121

4. New Source and Significant Deterioration
Review . . . . . . . . . . . . . . . . . . . . 121

5. Indirect Sources . . . . . . . . . . . . . . . 122

6. Federal, State, and Local Air Quality Planning:
Preserving Air Quality and Permitting Growth -
A Dilemma . . . . . . . . . . . . . . . . . . . 125

D. other Provisions of the clean Air Act and
Significant Issues . . . . . . . . . . . . . . . . 134

1. Energy Supply and Environmental Coordination
Act . . . . . . . . . . . . . . . . . ... . . . 134

2. Section 116 and Section 118 of the CAA . . . . 135

3. Citizen Involvement in the CAA . . . . . . . . 136

4. EPA/HUD Agreement . . . . . . . . . . . . . . 136

E. Control of Radioactive Emissions . . . . . . . . . 137

1. Introduction . . . . . . . . . . . . . . . . . 137

2. Nuclear Energy Facilities . . . . . . . . . . . 137

a. Planned Releases . . . . . . . . . . . . . 138

b. Accidental Releases . . . . . . . . ... . . 139

c. Radioactive Waste Management . . . . . . . 139

d. Naturally Occurring Radioactive Materials. 140

3. summary . . . . . . . . . . . . . . . . . . . . 141

Footnotes

Section V Housing and Urban Development (HUD) 701 Comprehensive
Planning Assistance Program . . . . . . . . . . . . . . 143

A. Overview . . . . . . . . . . . . . . . . . . . . . 143

B. Provisions of the 701 Camprehensive Planning
Assistance Program of Interest to the Nuclear
Regulatory Commission . . . . . . . . . . . . . . . 145

1. introduction . . @ . . . . . ..... . . . . . . . 145

2. Comprehensive Planning . . . . . . . . . . . . 146

a. Land Use ElEment . . . . . . . . . . . . . 147

b. The HUD 701 Ccoprehensive Planning
Assistance Program and Energy-Related
Consideration .. . . . . . . . . . . ... . 150

c. Shortcamings of the Present HUD 701
Program . . . . . . . . . . . . . . . . . . 153

d. Other Aspects of Coordination: HUD
701 Omprehensive Plans and A-95 Review. . 155

Footnotes

I. The National Environmental Policy Act

A. Introduction and-Overview

On January 1, 1970, as his first official act of the new decade,

President Nixon signed into law the National Environmental Policy Act
of 1969 (NEPA). I In announcing a comprehensive national policy for pro-

tecting, maintaining, and restoring environmental quality, NEPA ushered

in a new era of legislative environmental initiatives, both on the
federal and the state level. 2 Unlike other environmental protection

statutes, such as the Clean Air Act Amendments of 1970 and the Federal

Water Pollution Control Act Amendments of 1972, houever, NEPA did not

establish a comprehensive regulatory program. Rather, it supplemented

the existing ndssions of all federal agencies by requiring that environ-

mental factors be taken into consideration in federal policy@making and

3
program activities.

In the context of this study, it is important to understand the

responsibilities which NEPA places upon federal agencies for several

reasons. First, the broad sweep of NEPA's language, described as "al-
most constitutional" in its generality by one commentator, 4 has placed

substantial procedural duties on all federal agencies. In doing so, it

has served in large measure as an administrative reform statute, by

forcing agencies to examine and explain their decisions in terms of

potential impact on environmental resources. And by requiring wide-

spread public notice of agency activities, NEPA, along with other recent

developments, such as the expansion of requirements under the Freedom

of Information Act and expanded judicial review under the A&Anistrative

Procedure Act, has helped to make federal agencies more accountable for

their actions to the public. Because of this, and because the duties

imposed by NEPA have been largely implemented-by the public through the

courts, an understanding of its policies and the means it specified to

carry out those policies is of special concern to agencies such as the

Nuclear Regulatory CamTtission (NRC), whose activities affect the

quality of the envirammt.

Second, by compelling federal agencies to alter their procedures

in reaching decisions, NEPA has fostered the establishment of both

legally enforceable regulations and administrative staffs to implement

them in nearly all federal agencies. These regulations offer federal

agencies the opportunity to establish procedures that encourage the con-

sideration of enviromental factors in the most comprehensive and effi-

cient manner possible. Since the siting of nuclear facilities impacts

upon numerous federal, state, and local plaming processes, the pro-

cedures and regulations which NRC has established to implement NEPA may

serve as an effective mechanism to ensure that the relationship betueen

proposed nuclear facilities and these planning processes are taken into

account at an early stage in the siting process.

The third reason NEPA is important to this study concerns the fact

that among the substantive policies it announces, is the improvement

and coordination of all federal plans and programs. While the coastal,

water, air, and comprehensive planning programs discussed in succeeding

portions of this study differ as to the amount of federal involvement,

nevertheless they all involve substantial federal funding and are ad-

ministered by federal agencies. It is conceivable, then, that as courts

move toward reviewing NEPA's requirements in terms of its substantive

goals, federal agencies may be required to conduct their activities and

programs in light of their potential effect on other federal and feder-

ally-assisted planning processes.

In order to fully appreciate the duties which NEPA imposes on fed-

eral. agencies, it is necessary not only to examine its statutory require-

ments, but also to review some of the principal court interpretations

of those requirements. This is particularly important because NEPA's

broad language has proved to be a fertile ground for judicial review of

the actions of federal agencies. As a result of the large role which

the judiciary has played in implementing its mandates, especially with

regard to the applicability and content of the Environmental Impact

Statement (EIS) requirement, NEPA's impact on the federal bureaucracy

has been evolutionary in nature. It is therefore necessary to understand

this evolutionary process in order to project the role that NEPA may play

in coordinating the diverse federal planning processes examined in sub-

sequent portions of this report.

With this in mind, after detailing NEPA's statutory requirements,

this study will review a nunber of its major judicial interpretations.

It will then focus on NEPA's potential as a coordinative mechanism, an

area in which the courts have yet to closely scrutinize. Finally, the

study will review NRC's existing regulations implementing NEPA to ascer-

ta.in whether they take full advantage of the opportunities which NEPA

procedures can offer in coordinating those planning processes that affect

the siting of nuclear facilities.

B. NEPA's Statutory Requirements

The nation's expressed environmental policy established by NEPA
declares:5

... it is the continuing policy of the
Federal government in cocperation with
State and local goverTumts, and other
concerned public and private organiza-
tions, to*use all*practicable means'and
measures, including financial and tecHil-
cal assistance, in a manner calculated to
foster and pranote the general ,Aelfare,
to createand maintain conditions under
which man and naturecan exist in produc-
tive harmony, and fulfill the social,
econcmic, and other requirements of pre-
sent and future generations. (emphasis
added)

In carrying out this national policy, all federal agencies are

directed by section 101(b) to use "all practicable means, consistent

with other essential considerations of national policy, to improve and

coordinate federal plans, functions, programs, and resources" in order

to preserve, restore, and enhance environmental quality. Section 102(l)

further requires that "to the fullest extent possible" the policies,

regulations, and laws of the federal government are to be interpreted

and administered in accordance with the national environmental policy.

In addition to establishing these broad policy goals, NEPA mandates

that federal agencies undertake certain positive- actions. The most

notable of these "action forcing" provisions is section 102(2)(c)'s

requirEment of preparing an environmental impact statement CEIS) before

undertaking major federal or federally assisted actions, including leg-

islative proposals, which uould significantly affect the environment.

The legislative history of NEPA makes it clear that "major federal actions

significantly affecting the quality of the huTon environment" may include

riot only projects administer ed or funded by the federal goverment, but

also regulations, policy statements, and expansions or revisions of on-
going federal programs-6

The EIS must be circulated to state, local, and other federal

agencies, as well as to the public, and must accompany the proposed

action throughout the agency's decision-making process. It must ad-

dress a number of specific elements, including environmental impact of

the proposed action; any unavoidable adverse impacts; feasible alter-

natives to the proposed action; the relationship of short-term uses to

long@term productivity; and any irretrievable conviitments of resources
involved in carrying out the proposed action. 7

Although the EIS requirement has received the most attention, both

from the federal bureaucracy and the courts, it is only one of a number

of "action forcing" procedures required by section 102(2). For example,

federal agencies are also called upon to utilize an integrated, inter-

disciplinary approach in addressing environmental problems; are required

to develop methods to assure that unquantified envir-onmental values are

taken into account in their decision-making; and must consider alter-,

natives to recommended courses of action uhere there exist unresolved
conflicts concerning the use of available resources. 8 It should be

noted that these requirements are in addition to the analyses uhich

must be included in an EIS, and they therefore apply utether or not a

contemplated activity is a "major federal action significantly affect-

ing the envircruLent."

An additional procedural step required of federal agencies in order

to effectuate NEPA's environmental policies is found in section 103.

That section directs all federal agencies to review their authorities,

policies, and procedures for the purpose of bringing them into line

with NEPA. Although federal agencies were required to report any in-

consistencies to the President by July 1, 1971, Executive Order 11514

makes it clear that agencies have a continuing responsibility to monitor

their activities to assure the protection and enhancement of environ-
mental quality.9 Similarly, the NEPA guidelines promulgated by the

Council on Environmental Quality (CEQ) state that "agencies should con-

tinue to review their policies, procedures, and regulations to ensure
full compliance" with NEPA. 10 The CBQ guidelines therefore make it clear

that NEPA is to be considered as a supplementary source of authority

which is superimposed upon the policies and missions of all federal

agencies.

Federal agency compliance with NEPA consequently requires more than

merely the preparation of EIS's for major federal action-; significantly

affecting the environment. Properly viewed, the EIS requirement is

only one of several means to effectuate NEPA's ends of protecting and

enhancing environmental quality. Yet because of the great effect the

EIS requirement placed on the manner in which federal agencies reach

decisions, and because many federal agencies accepted this administrative

reform with a good deal of reticence, federal agency inplementation of

the EIS requirement has been the principal focus of concern. And due

to the general nature of NEPA's language and the lack of legislative

indication as to how its requirements were to be enforced, the courts

have proved to be the principal interpretors of the scope and meaning

of its EIS requirements. To understand more clearly the influence that

DMIA's EIS process has played in n-cdifying NRC's policies and proced-

ures, it is therefore necessary to review some of the Act's Mjor judi-

cial interpretations.

C. Significant Judicial InL-e@retations

It is not the purpose of this study to perform an exhaustive study

of the role which the judiciary has played in interpreting the mandates
of NEPA. 11 It is, havqever, useful to overview some of the principal

cases vdiich have shaped the evolution of the statute, along with those

cases in which the application of NEPA to NRC (and its predecessor, the

Atomic Energy Commission) has resulted in the alteration of the agency's

procedures.
The landmark case of Calvert Cliffs Coordinating Camdttee v. ABC 12

remains the starting point for considering the treatment of NEPA in the

courts. In that case, which struck down the regulations that the ABC

had promulgated to ccmply with NEPA, the Court of Appeals for the Dis-

trict of Columbia Circuit, in an opinion by Judge Skelly Wright, ruled

that since NEPA establishes environmental protection as part of the

mndate of every federal agency, the Commission had an affirmative duty

to consider enviromental values at every stage of its decision-nuking

process. Since the court found that its procedures did not require such

consideration, the Commission was ordered to promulgate new regulations

consistent with the spirit and letter of NEPA.

Because of its exploration of the kind of "consideration" of en-

vironmental values required by NEPA, its distinction between the Act's

procedural and substantive mandates, and its interpretation of the per-

n-Lissible deference which federal agencies may give to standards estab-

lished by other agencies with envirormiental expertise, the Calvert

Cliffs decision deserves special attention. First, by focussing on the

,type of "consideration" which must be displayed in an EIS, the court

went beyond previous judicial interpretations of NEPA, which were largely

restricted to ascertaining whether an EIS had to be prepared and whether

it contained the elements listed in the statute. Judge Wright concluded

that the consideration mandated by NEPA required a balancing process,

in which enviromental costs must be weighed against econcmic and tech-

nical benefits on a case by case basis.

Second, to ensure that this balancing process is carried out, the

court drew a sharp distinction between NEPA's substantive goals (or

ends), and its procedural requirements (or the means to achieve its

ends). Citing the Act's basic policy of "[ulsing all practicable means

and measures to protect enviromental values," the D. C. Circuit deter-

mined that federal agencies were granted a good deal of discretion in

reaching decisions in accord with NEPA's substantive policy. on the

other hand, since the "action forcing" provisions of NEPA, including

the EIS requirement, were to be camplied with "to the fullest extent

possible," the court ruled that federal agencies must strictly employ

NEPA procedures, unless there exists a clear conflict with their statu-

tory authorities. In distinguishing procedural fran substantive stan-

dards of judicial review'of agencies actions under NEPA, the court de-

lineated the parameters which most courts have ccme to adopt. In Judge
Wright's words: 13

... Section 102 of NEPA mandates a partic-
ular sort of careful and informed decision-
making process and creates judicialiy- en-
forceable duties. The reviewing courts

0
U

probably cannot reverse a substantive
decision on its merits, under Section 101,
unless it be shown that the actual balance
of costs and benefits that was struck was
arbitrary or clearly gave insufficient
weight to environmental values. But if
the decision was reached procedurally with-
out individualized consideration and balanc-
ing of envirorraental factors - conducted
fully and in good faith -- it is the re-
sponsibility of the courts to reverse
(U5pFas-1s aaaed)

Third, the court ruled that the ABC's procedures for giving auto-

matic deference to state certification of compliance with the water

quality standards under the Federal Water Pollution Control Act were

inconsistent with the CamLission's duty under NEPA to consider all en-

vi-ronn-ental factors in its licensing actions. Accordingly, the court

held that NEPA required the ABC to assess water quality effects of nu-

clear facilities independently, regardless of state certification. Al-

th:)ugh Calvert Cliffs' holding as applied to water quality standards

was specifically overruled by Congress in the 1972 Federal Water Pollur
tion Control Act Amendments, 14 its reasoning remains applicable to the

consideration of other environmental factors which have not been specif-

ically exempted from NEPA balancing. In other words, except for specific

exemptions provided by Congress, federal agencies have the responsibility

of making an "individualized balancing analysis ... to ensure that, with
possible alterations, the optimum beneficial action is finally taken." 15

The principal issues discussed in the Calvert Cliffs derision have

been the subject of numerous other judicial rulings. For example, the
D. C. Circuit in NRDC v. Morton 16 expanded upon the kind of enviromen-

tal considerations which federal agencies must undertake in their Eis's.

The court carefully analyzed the Department of the Interior's discussion

of alternatives to the leasing of outer continental shelf tracts off

the coast of louisiana for oil exploration, and found the agency's EIS

to be inadequate because it did not consider all reasonable alternatives,

including those which the agency did not have the power to inplement or

which would not campletely solve the problem. The court's reasoning

was based on its belief that NEPA was designed as a basis for sound

decision-making in the legislative as uell as the executive branch. It

therefore concluded that "the mere fact that a particular alternative

uuuld require legislative inplementation does not automatically establish
it as beyond what is required for discussion" in an EIS. 17

TheMorton court also undertook an examination.of the thoroughness

with which each alternative must be discussed, stating there must be

enough detail "to permit a reasoned choice of alternatives so far as
environmental inpacts are concerned." 18 Although it ruled that this

11requires a presentation of the environmental risks incident to reason-
able alternative courses of action,"19 the court noted that alternatives

which are "remote and speculative" and those whose inpacts" cannot be
readily ascertained" need not be discussed. 20

The kind of reasoning employed by the Calvert Cliffs and Morton

courts as to the kind of consideration which must be displayed in an

EIS was recently applied to NRC's EIS concerning a proposed nuclear po-
urer station in Midland, Michigan. In Aeschliman v. Nir- 21 the D. C. Cir-

cuit ruled that the Commission failed to comply with NEPA because its

EIS did not explicitly consider energy conservation measures to reduce

the demand for electricity as an alternative to granting a license to

the facility.- The court held that since "energy conservation was clearly

a colorable alternative relevant to the goals of the project," 22 the

NRC's failure to discuss this as an alternative was arbitrary and capri-

cious. The court also held that NPC_ could not compel intervenors in its

administrative procedures to affirmatively prove that a given alternative

is a "reasonable one." In reaching this conclusion Chief Judge Bazelon

reasoned that once a "colorable alternative" is brought to the Commissions
attention, 23

Thereafter, it is incumbent on the Carmis-
sion to undertake its own preliminary in-
vestigation of the proferred alternative
sufficient to reach a rational judgment
whether it is worthy of detailed consid-
eration in the EIS. Moreover, the Czm-
mission must explain the basis for each
conclusion that further consideration of
a suggested alternative is unwarranted.

On the same day that the D. C. Circuit rendered its opinion in
Aeschliman, it also decided NRDC v. NRC. 24 In this case the court ruled

that NRC violated NEPA by not discussing the envircruiental effects of

radioactive waste disposal in its EIS on the proposed Vermont Yankee

nuclear poumear station. The court rejected the Commission's contention

that reprocessing and waste disposal issues need not be addressed in a

decision on a construction permit for a nuclear station because they

are too speculative and would be mre appropriately addressed later in

the licensing of reprocessing and waste disposal facilities themselves.

Instead, the court ruled that NEPA requires agencies to make "reasonable

forecasts of the future," and that delaying consideration of the en7

vironmental effects of nuclear wastes until after the station was con-

structed would amount to the kind of "incremental decision-nuking" which
NEPA was designed to correct. 25 The court concluded that because NRC

had not yet dealt with waste disposal and reprocessing issues by generic

rulemaking, these issues had to be addressed in individual licensing

proceedings.

Taken together, this line of cases, beginning with the Calvert

Cliffs decision, illustrates that the courts (and the D. C. Circuit in

particular) will carefully review the response of Federal agencies to

the procedural requirements which NEPA nTposes on federal decision-making.

By closely scrutinizing an EIS's assessment of all potential environ-

n-ental impacts and its treatment of colorable alternatives to proposed

actions, the courts attempt to ensure that the EIS reflects a "careful

and informed decision7making process" designed to achieve ccniprehensive

(as opposed to incremental) federal decisions. It should be noted,

however, that so long as an agency's procedures reflect these consid-

erations, its ultimate decision on a particular federal action will not

likely be overturned by a court. This is due largely to the fact that,

as noted above in connection with the Calvert Cliffs decision, the

courts have construed NEPA as granting agencies a good deal of discretion

in reaching decisions in accord with NEPA's broad substantive policies.

For example, in Aeschliman the court did not hold that NEPA required

that energy conservation measures be implemented instead of licensing

the facility, only that NRC consider this as a feasible alternative.

Similarly, in NFMC' the ruling did not prohibit the licensing because of

the risks involved in generating nuclear wastes - it merely held that

the Ccmmission could not proceed until it gave adequate consideration

to this issue. Admittedly, the distinction between judicial review of

agency procedures and review of specific decisions beccnies increasingly

blurred as the courts impose more exacting standards on the adequacy of

the former. Yet it should be kept in mind that most courts remain ex-

tremely reluctant to "second guess" agency decisions on their merits,

and that the arbitrary and capricious standard for overturning an agency

decision on the basis of NEPA's substantive policies way be an especially

difficult one to meet if the procedures the agency followed are adequate.

Another line of cases beginning with Scientists' Institute for Pub-
lic Information (SIPI) v. ABC 26 confirms NEPA's role in ccimbatting in-

crEmental decision-making by fostering a comprehensive approach to en-

virormiental management. In SIPI the D. C. Circuit required the ABC -to

file a programmatic EIS assessing the cumulative inpacts of the research

and development phase of the Liquid Fast Metal Breeder Reactor Program.

This programmatic EIS was in addition to separate EIS's evaluating in-

dividual test projects. In becaning the first court to require an EIS

on a major federal research program, the D. C. Circuit ruled that NEPA

was intended to require early evaluation of large scale policy actions

as wall as specific projects that implement those policies. The court

also established a four-part balancing test with 4lich to determine

when a program statement would be judicially required. This test has,

however, been rejected by the Supreme Court at least.in situations where

a federal agency denies that its regulatory activities are parL of
27
a broader based program.

In its first major NEPA decision, the Supreme Court in Aberdeen

and Rockfish Railroad v. Students Challenging Regulatory Agency Pro-
cedures (SCRAP 11) 28 reversed a lower court's ruling 4lich held inade-

quate the Interstate CcmTterce Camiission's EIS on the effect of rail-

road freight increases on the recycling industry. The court found that

the ICC was justified in limiting the scope of its environmental con-

siderations in its EIS because it was considering the broader implica-

tions of its rate structures in another proceeding. The impact of this

portion of the Court's ruling is, however, limited to a great extent by

the peculiar nature of the ICCIs "general revenue" proceedings. of

greater significance, particularly to the timing of programmatic EIS Is

was the Court's language indicating that an EIS is not required until

"the time at which [a federal agency] makes a reccomendation or a report
on a proposal for federal action." 29 ' (emphasis the Court's). This

language laid the groundwork for the SuprEn-e Court's subsequent ruling
in Kleppe v. Sierra Club. 30

In Kleppe the Court reversed the D. C. Circuit's ruling which re-

quired the preparation of a regional EIS on coal leasing in the Northern

Great Plains, even though the Department of the Interior claimed there
was no region-wide federal program. 31 In reversing, the Suprerrke- Court

held that since all the proposed actions were either national or local

in scope, there was no regional proposal on which to base an EIS. Cit-

ing XEM II
, the Court reasoned that the statute does not give the

judiciary the authority to caTrpel the preparation of an EIS on "contem-

plated" but not."proposed" federal actions. The Court thus specifically

overruled the balancing test announced by the Court of Appeals in SIPI

as to when a program EIS would be required when a federal agency

denies the existence of a program.

The Kleppe decision has implications both as to the timing and the

scope of program EIS'S. Although it clearly rejected the application
of programmatic EIS'S to contemplated federal actions before they reach

the stage of Ilprcposals," the Court does indicate that a final EIS must

be prepared by the time an agency makes a reccnrnendation or report on

a proposal for federal action. Since present administrative practice

is to have only a draft EIS prepared at this time, the Court seems to

be requiring earlier EIS preparation, at least where an action has

reached the imminence of a "proposal." But because the Court announced

no standards for identifying what constitutes "a report or recammenda-

tion," the precise timing of programmatic EIS preparation remains unclear.

As to the scope of program EIS's, by limiting their applicability

to only actions which have reached the proposal stage, the Supreme

Court appears to grant substantial discretion to federal agencies in

defining what is a proposal and consequently in the scope of their EIS

requirements. Yet while -the Court restricted program EIS's to pending

programs, it explicitly affirmed the concept of programmatic EIS's.
Mr. Justice Powell, writing for a seven me@@ majority, stated: 32

we begin by stating our general agreement
with [the] basic prEmise that 9 102(2)(c)
may require a ca-pprehensive impact state--
ment in certain situations where several
proposed actions are pending at the same
time... When several proposals for coal-
related actions that will have a cuiTula-
tive or synergystic environmental impact
are pending concurrently before an agency,
their environmental consequences must be
considered together. Only through com-
prehensive consideration of pending pro-
posals can the agency evaluate different
courses of action. (emphasis added)

While upholding the concept of programmatic EIS's, the Supreme Court

noted that in certain circumstances, where approval of one proposal is

not intimately related to other proposed actions, action may proceed on

an individual project before a program EIS is prepared, so long as there

is an adequate project EIS and the project's effects will be considered

in a subsequent program EIS.

In light of the above, NRC recently attempted to have the Second

circuit court of Appeals reconsider its earlier decision which blocked

the Commission's interim licensing of mixed oxide (uranium and plutonium)
fuel for comercial use until the Commission completed a program EIS. 33
The Second Circuit refused in NRDC v. NRC (GESMD) 34 and distinguished

Kleppe on two grounds. First, the court stated that because of NRC's
streamlined individual EIS's were limited to site specific effects, with--

out a program statement there would be no way to assess the cumulative

inpacts of individual actions. The court therefore concluded that NRCIs

individual EIS's were not "adequate" under the Kleppe exception. Second,

the Court distinguished Kleppe on the ground that individual coal leases

had independent utility, while the NRCIs interim licensing was "clearly

tied to anticipated wide-scale use of mixed oxide fuel and would commit
substantial resources to the mixed oxide fuel technology." 35

Thus, this line of cases indicates that while programmatic EIS's

remain a central means by which to achieve NEPA's objective of foster-

ing comprehensive environmental decision-nuking, federal agencies will

probably not be compelled to prepare program EIS's where they do not

concede the existence of a federal plan or program. This situation is

most likely to occur where the agency is merely licensing or authorizing

private actions, such as NIRC in the case of an individual power station.

On the other hand, where the federal role is much larger or there exists

a federal plan, such as in the transportation, disposal, and reprocess-

ing of nuclear material, programatic EIS's will still be required, in

addition to individual project EIS's. As to the question of under what

circumstances an individual federal project action my proceed prior to

the corrpletion of a progranvatic EIS, the Council on Envirorrental

Quality has recently issued a meworandum for the guidance of federal
ageiicies. 36 In CEQ's view, interim actions way proceed without a pro-
grarmtic EIS only if all of the following three tests are met: 37

1. the federal agency detexmines there is no significant
interdependence between the individual project and
other projects in the program;

2. an adequate project EIS has been prepared; and

3. the agency nakes a ccnm-Litment to assess the project's
cumulative effects in the forthcoming progranvatic
EIS.

Until 1975, the issue of the propriety of federal agencies' dele-

gating their responsibility for EIS preparation to state and local en-

tities was as a fertile ground for judicial review as the scope and

content of an EIS and the applicability of programmatic EIS's. The 94th

Congress, however, adcpted an Amendment to NEPA which served to clarify
t.he uncertainties regarding EIS delegation. 38 The Awmclnent specifies

that, delegation is permissible only if the federal activity involves a

grant-in-aid program and only if the following conditions are met:

1. the recipient is a state agency with statewide
jurisdiction;39

2. the federal agency furnishes guidance and par-
ticipates in the EIS preparation;

3. the federal agency independently evaluates the
EIS before it is approved and adopted; and

4. if the action or any prcposed alternatives would
affect other states or federal land management
entities, the federal agency must ensure that
they are notified and that their views are solicited.

The Amexr1ment also makes it clear that the federal agency is in no way

relieved of its duty to ensure that the scope, content, and objectivity

of the EIS are adequate and is also not relieved of its other NEPA re--

sponsibilities. Since the Amendment is specifically limited to federal

grant-in-aid programs, it is not presently applicable to the activities

of NRC.

There are two other situations in uhich federal agencies are re-

lieved of EIS responsibilities. One concerns the expenditure of general
revenue sharing funds, which is exempted by CEQ's guidelines. 40 The

other involves the Department of Housing and Urban Development's ccnt--

munity block grant program under the Housing and Cammunity Develcprnent
Act.o.f 1974. 41 Section 104(h) of that Act provides that when these

grants are used by local governments for major actions which would

significantly affect the human environment, the local goverm-ent in

effect assumes all NEPA responsibilities that would otherwise be HUD's.

Because this block grant program does not involve federal approval of

specific projects, but only broad categories of projects, it closely

resembles federal revenue sharing where the only federal act is dispers-

ing federal funds. Since both of these programs involve very limited

fedeia-1 control over the use of funds, they constitute narrow exemptions

to NEPA which do not appear to be applicable to the activities of NRC.

Finally, a developing area of NEPA litigation concerns the appli-

cability of the EIS requirement to annual budget requests of federal
TVA42 the Sixth Circuit Court of Appeal.
agencies to Congress. In EDF v.

construed the phrase "prcposals for legislation" in section 102(2)(c) of

NEPA to embrace TVA's annual appropriation requests for the construction

of the Tellico Dam. As a result, the Court held that an EIS was required

on the continuing construction of the project, even though construction

had begun prior to the enactment of NEPA..

More recent1v, in Sierra Club v. Morton 43 the District Court for

the District of Columbia ordered the Department of the Interior to pre-

pare an EIS on its annual budget requests concerning the National Wild-

life Refuge System. The Court cited the Tellico Darn case, CBQ's guide-
lines, 44 and DOI's own regulations 45 in concluding that annual requests

for appropriations are subject to EIS requirements. The Court also

ruled that the Office of Managenent and Budget, also a defendent in the

suit, must develop formal methods and procedures to identify budget

proposals for which EIS's must be prepared.

The ramifications of these rulings on the procedures of federal

agencies, including OMB, have yet to be.fully felt. if the reasoning

of these courts is employed in other cases, however, it is likely that

the in-pact of NEPA on the annual budget requests of federal agencies

could be a substantial one.

D. Future Directions - NEPA as a Coordinative Mechanism

NEPA's legacy in the area of inproving coordination aTmng federal

agencies has already proved to be a substantial one. In this regard,

the procedures for preparing and circulating draft and final EIS's

have served to increase awareness among federal agencies of the activi-

ties and responsibilities of other federal agencies. By forcing agen-

cies to describe the consequences of their actions, the EIS requirement

has put other federal agencies on notice of potential impacts on their

own program missions. And by providing an opportunity for other federal-

agencies to coment. on projects, programs, and policies discussed in

EIS's, NEPA has allamed the reviewing agencies to interject their con7

cerns before major federal actions are undertaken.

191

NEPA has also fostered the establishment of specialized adminis-

trative staffs to review and assess EIS's. Most prominent among these
are the Council on Environmental Quality (established by NEPA 46 ) and

the Office of Federal Activities in the Environmental Protection Agency
(under section 309 of the Clean Air Act 47 EPA publicly evaluates EIS's).

But ly all federal agencies have established mechanisms by which

they may review and comment on EIS's. For example, 22 different federal

agencies, including NFC, submitted comments on the Federal Power Commis-

sion's Draft EIS concerning the proposed Alaska natural gas transporta-
tion systems. 48

In addition to increasing awareness throughout the federal govern-

ment of agency activities, NEPA has promoted greater realization of the

impacts which federal actions may have on state and local activities.

State and local review and comment on federal EIS's is accomplished

through notification to state and areawide clearinghouses, under the

procedures established by the Office of Management and Budget's Revised
Circular A-95. 49

The increased intergovernmental awareness resulting from NEPA is,

however, only the first step toward establishing effective-intergovern7

mental coordination. While an understanding by the goverment's right

hand of what its left hand is doing is necessary to achieve comprehensive

decision-making, it is not in itself sufficient. What is needed are

mechanimns to ensure that a cxmprehensive approach to formulating de-

cisions is adopted at all stages of the decision-making process. Fortu-

nately, agency regulations implementing NEPA would appear to be suffi-

ciently flexible to serve as vehicles for interjecting comprehensive

planning considerations at an early stage of major federal activities.

The Council on Environmental Quality's guidelines.on EIS prepara-

tion place a heavy emphasis upon viewing the proposed action in light

of other federal activities. The guidelines state that in describing
a proposed action's envirom-Lental impacts, an EIS: 50

should also succinctly describe the environment
of the area affected as it exists prior to a
proposed action, including*other federal activi-
ties in the area affected which are related to
the proposed action. The interrelationships and
cumalative enviromental-i-n)-p-ac-t-8--07--tTg-------ix-I
prppqs
action and
sented in the statement. Cemphasis added)

More specifically, and more important to the objective of employing the

NEPA process as a mechanism to coordinate diverse planning processes,

the siting of nuclear facilities, the CEQ guideli-nes note that among
the points an EIS should address is: 51

the relationship of the proposed action to land
use plans, policies and controls for the affected
area. This requires a discussion of how the pro-
posed action may conform or conflict with the
objectives and specific terms of approved-or
proposed Federal, State and local land use plans,
policies, and controls, if any, for the area,af-
fected including UTo-se developed in response to
the Clean Air Act or the Federal Water Pollution
Control Act Amendments of 1972. Where a conflict
or inconsistency exists, the s@atement should
describe the extent to which the agency has re-
conciled its proposed action with the plan, policy,
and control, and the reasons why the agency has
decided to proceed notwithstanding the absence
of full reconcilation. (emphasis added)

The CEQ g-aidelines thus expressly declare the interrelationship between

the EIS process and other approved or proposed planning processes. It

should be observed that while these guidelines do not carry the- force

of law, they are granted considerable deference by the courts. And

despite the ruling in Kleppe v. Sierra Club regarding the sccpe of pro-

grammatic EIS's, in that case the Supreme Court explicitly affirmed corar-
prehensive planning as a primary goal of the EIS process. 52

It is therefore quite conceivable that, for example, if an EIS on

the licensing of a nuclear facility failed to consider the relationship

of that facility to the planning processess described in succeeding

sections of this report, a court might find the EIS to be inadequate.

NRC can avert this situation by requiring the kind of considerations

specified by CBQ's guidelines in its EIS regulations.

It is also conceivable that NEPA could be interpreted to require

more than merely consideration of other existing or proposed planning

processes. If the courts move bo reviewing federal decisions in light

of NEPA's substantive policies, rather than merely carefully scrutiniz-

ing the procedures they auploy in mplementing NEPA, coordination of

federal activities with other plans could be compelled. Section 101(b)

of NEPA requires:

the Federal government to use all practicable
means, consistent with other essential consid-
erations of national policy, to inprove and
coordinate Federal plans, Lun @tio!is, programs
and resources Lto preserve and enhanceenviron7-
mental quality]. (EWhasis added)

A court reading this policy in ten-as of substantive duties could there-

fore strike dam an agency decision which conflicted with existing or

proposed plans, in spite of the fact that consideration was given to

those plans in the agency's EIS. Of course, the agency might be able

to show compliance with NEPA by demonstrating that its decision was

11consistent with other essential considerations of national policy."

2 2

As previously noted, however, courts have been reluctant to inter-

pret NEPA in terms of substantive requirements. WJhile a federal agency's

action has never been explicitly enjoined as being in violation of NEPA's

substantive policies, six Circuit Courts of Appeal have indicated that

a court could do so if it found an agency's decision to be arbitrary
and capricious in light of NEPA's substance. 53 For example, in EDF v.
54
Corps of Engineers (Gilham. Dwn) the Eighth Circuit stated:,

The language of NEPA, as wiall as its legislative
history, makes it clear that the Act is more than
an envirorrnental full disclosure law. NEPA was
intended to effect substantive changes in decision-
making...

The unequivocal intent of NEPA is to require
agencies to consider and give effect to the en--
viromtental goals set forth in the Act, not just
to file detailed inpact studies which will fill
govermental archives. (emphasis added)

A court adopting a substantive standard of review could therefore

a-ijoin an NIU action if it determined that, for example, the action was

n:)t coordinated to the fullest extent practicable with other federally

assisted planning processes, such as the coastal, water, air, and can-r-

prehensive plans described in this report. It could do so by deter-

mining that the failure to coordinate was arbitrary and capricious "or
clearly gave insufficient weight to envirornental values." 55 And it

should be noted that under a substantive standard of review such a

conclusion could be reached even though the NRCIs EIS was procedurally

adequate.

There are therefore good reasons for the NRC to develop mechanisms

to ensure that its activities are coordinated with other planning pro-

cesses. First, under the generally accepted standard of procedural NEPA

review courts may require, at a mininun, consideration of applicable

plans in the facility siting process. Second, substantive coordination

with plans that affect the siting process could be required if the

courts move to reviewing federal activities in light of NEPA's policies.

Third, apart from the threat of judicial intervention, this type of

coordination would help to reduce potential conflicts between NRC ac-

tions and existing environmental planning. And by serving to clarify,

at an early stage of the facility siting process, the relationship be-

tween the roles of NRC and the entities which inplement these planning

functions, NFC can belp to increase efficiency in the-siting of nuclear

facilities, w1iich is, after all, the principal goal of NRCIs current

efforts.

The concluding section of this discussion of NEPA will focus on

NRCIs procedures inpleutenting NEPA, in order to detennine how effective

these regulations are at integrating coastal, air, water, and campre-

hensive planning considerations into the nuclear facility siting process.

E.. The Nuclear Regulatory Commission's Existing NEPA Procedures

The NEPA process affords substantial opportunities for NRC to

effectively integrate the various planning processes subsequently dis-

cussed in this report at early stages of the nuclear facility process.

By requiring that its EIS review of an applicants' proposal carefully

scrutinizes the relationship of the application to existing state and

local plans, the NFC can encourage its applicants to take those plans

into consideration before proposals are suirnitted. This can serve

to increase efficiency in siting determinations by fostering close ccn-t--

muni-cation and consultation between potential applicants and state and

local planning authorities prior to the suhnission. of applications to

The principal mechanisms for assuring early coordination between

potential applicants and relevant state and local planning processes
are the NBC's regulations implementing NEPA 56 and the Commission's
57
Regulatory Guideg 4.2 (Preparation of Envirorffnental Reports) and
4.7 (General Site Suitability Criteria). 58 As recognized by the Con-r-

mission in its Regulatory Guide 4.2, one of the principal goals of NEPA

concerns improving coordination of all federal agency programs-to en-
hance environmental -quality. 59 This section will focus on NRCIs imple-

mentation of that directive.

The basic mechanism presently employed by NFC in ascertaining the

relationship of applications to relevant planning processes is the

applicant's construction permit stage environmental report. This re-

port is required of all construction permit applications which the NRC
60
has detexmined require an EIS. The Ccnudssion's regulations imple-
menting NEPA state that this report must include: 61

a discussion of the status of compliance of the
facility with applicable environmental quality
standards and requirements (including, but not
limited to, applicable zoning and land-use reg-
ulations and thermal and other water pollution
limitations or requirements pram1gated or im-
posed pursuant to the Federal Water Pollution
Control Act) which have,been imposed by Federal,
State, regional, and local agencies having re-
sponsibility for environmental protection. The
discussion of alternatives in the Report shall
include a discussion whether the alternatives
will comply with such applicable environmental
quality standards and requirements. The en-
vironmental impact of the facility shall be
fully discussed with respect to matters covered
by such standards and requirements irrespective
of whether a certification or license from the

appropriate authority has been obtained (in-
cluding, but not limited to, any certification
obtained pursuant to section 401 of the Federal
Water Pollution Control Act).

62
The regulations also inform applicants that:

No permit or license will, of course, be issued
with respect to an activity for which a certi-
fication required by section 401 of the Federal
Water Pollution Control Act has not been obtained.

These requirements are incorporated into Regulatory Guide 4.2,

concerning the preparation of environmental reports, in a number of

places. For example, chapter 12 of the Guide states that applicant's

environmental reports must list and give the status of all required

federal, state, local, and regional authorizations, including those
related to air, land, and water use planning. 63 Applicants are further

directed to "note the state, local, and regional planning authorities
contacted or consulted." 64

Similarly, sections 4.3 and 6 of Regulatory Guide 4.71 designed

to help applicants select potential sites for nuclear power stations,

call for discussions of water quality and land use considerations in
terms of national and state requirements. 65 Section-4.3 notes the

JuTportance of satisfying the vater quality criteria "and other require-
ments" of the Federal Water Pollution Control Act, 66 while section 6

calls upon applicants to resolve conflicts between potential sites and

land use plans adcpted by federal, state, regional, or local govern-
nmtal entities. 67

Since the basic purpose of both the regulations and the Guides

is to foster early interaction between the applicant and the state and

2; G

local regulatory agencies, they have a potentially large role to play

in increasing efficiency in nuclear siting determinations. In order

to fulfill this role, however, both the regulations and the Guide should

be made more explicit. For example, where applications could "affect"

the coastal zone of a state with a federally approved coastal zone

management program, a state CZM certification is required, in addition

to the certification required by section 401 of the Federal Water Pollu-

tion Control Act (FWPCA). Section 307(c)(3) of the Coastal Zone Manage-
ment Act (CM14A) 68 requires a certification of consistency with a state's

C714 program before NRC can issue a license or permit for actions that

would affect the state's coastal zone. Therefore, wherever the regu-

lations or the Guide note the applicability of the 401 requirement,

they should also mention the certification of consistency required by

307(c)(3) of the CZMA.

The Commission's regulations and the Guides should also make more

explicit mention of applicable state and areawide water quality plans
developed pursuant to section 208 of the FWPCA 69 and state 1Mplementa-
tion plans developed pursuant to section 110 of the Clean Air Act (CAA). 70

Although the regulations do note that "applicable zoning and land use

regulations" of the FWPCA must be discussed, they appear to emphasize

water quality "standards and requirements." Yet because approved water

quality plans will control the issuance of section 402 NPDES permits,

compliance with these plans will be of particular concern to NRC appli-

cants. The Czmmission should, therefore, endeavor to put potential

applicants on notice of the importance of applicable water quality plans

by supplying specific reference to them in its regulations, as well as

in chapter 12 of the Regulatory Guide 4.2 and sections 4.3 and 6 of

Regulatory Guide 4.7.

State implementation plans under the CAA are less directly re-

lated to the concerns of NRC applicants. But because these plans,in

most areas of the country, will incorporate the CAA's restrictions

against "significant deterioration" of air quality, they may serve to

preclude the siting of energy facilities which have greater impacts on

air quality than nuclear stations, such as fossil fuel generating

plants. This potential siting restriction should not, home-ver, be

taken as circumscribing the consideration of alternatives under NEPA,

since NEPA clearly requires the consideration of alternatives which may
be beyond the capability of the reviewing agency to implement. 71 In

addition to limiting the available options a potential applicant has

to generate electric power, the interrelationship betue-en state imple-

mentation plans and nuclear facility siting may becane more significant

in the future. For example, if under the CAA., EPA were to prescribe

an ambient standa rd for radioactive particles, all applicants for nu-

clear authorizations uuuld-then have to demonstrate ccmpliance with this

standard. By incorporating explicit mention of applicable state imple-

mentation plans into its regulations and the Guides, the NRC can help

to ensure that the potential for conflicts is minimized.

The NRC should also amend its regulations concerning the prepara-
tion of draft and final environmental impact statements 72 to ensure

that applicants have considered and are in campliance with applicable

coastal, water and air quality planning, as well as local land use

regulations. While the latter are explicitly mentioned, as is the

certif ication under section 401 of the FWPCA, 73 there is no mention

of the consistency certification required by section-307(c)(3) of the

CZMA or of compliance with water quality planning under 208 of the

FNVCA or state implementation plans developed pursuant to section 110

of the CAA. More explicit reference in these regulations would serve

to reinforce the important role which these planning processes will

play in helping to determine the suitability of potential sites for

nuclear facilities.

By incorporating these recommended changes into its regulations

and Guides, the NRC would not only help to increase efficiency in the

siting of nuclear facilities by identifying at an early stage of the

siting process potential conflicts with applicable plans, but would

also help to ensure that the policies established by NEPA are fulfilled.
This. is becausesection 101(b) of NEPA, 74 which declares the national

policy to improve and coordinate federal plans, functions, and programs,

appears to be entirely consistent with the goal of NBC's current ef-

forts to increase efficiency in the facility siting process. In this

regard, it would seem that the Cmr(Lission's regulations implementing

NEPA,uhich call upon the presiding officer of public hearings to de-

texmine whether certain elements of section 102 of NEPA have been
complied with, 75 could be amended to include also a deterudnation as

to whether the policies expressed in section 101(b) have been fulfilled.

In this manner, NWA can be effectively utilized by NRC as a mechanism

to coordinate the diverse planning processes that impact on the siting

of nuclear facilities.

The effective integration of these planning processes into Nw-'s

siting procedures may be especially crucial with respect to the Ccm-
mission's still developing regulations on early site review. 76 Unfor-

tunately, the procedures to be followed under early site review remain
scmewhat uncertain, 77 perhaps due largely to the fact that, unlike the
Energy Research and Development Administration, 78 the NRC has not yet

developed explicit guidelines on the preparation of programatic EIS's,

and no EIS was prepared on the proposed regulations,-It does appear,

however, that improved coordination between potential NRC applicants

and applicable coastal, water, air, and local land use planning could

go a long way toward ensuring that the early site review process results

in more efficient facilities siting, while at the same time increasing

the effectiveness of environmental planning. For example, the integra-

tion of applicable planning considerations into the early site review

process should allow the lcng@-range implications of the siting of nuclear

pow-r stations, such as the potential inpacts of "de-ccuwdssioning" the

station, to be considered at an early stage of NRCIs review process.

By amending its NEPA regulations and the ensuing Regulatory Guides

to provide for close coordination between potential applicants and the

applicable coastal, water, air, and land use planning processes, the

NRC can employ its NEPA procedures as a positive tool to ensure that

potential applicants are put on notice of their obligation to meet and

satisfy relevant enviromimtal. planning considerations before NRC re-

views their applications. This will serve to alleviate administrative

burdens on NRC's staff and therefore can be a valuable mechanism by

which to increase efficiency in the siting of nuclear facilities.

NEPA

Footnotes

1. P.L. 91-190, 42 U.S.C. SS 4121, 4331-61 [hereinafter citations
will be to the sections of the Act - e.g., NEPA, S 101(a)].

2. Although NEPA is aimed exclusively at federally@related
activities, the Council on Environmental Quality reports
that as of April, 1976, 26 states had enacted legislation
reseTrbling NEPA inlorder to require environmental analyses
of state-related activities. Council on Environmental Quality,
Environmental Quality, Seventh Annual Report 135 (1976).

3. NEPA � 105.

4. E. Schaechter, "Standards for Evaluating a NEPA Environmental
Statement," 90 Public-Utilities Fortnightly 29 (Aug. 31, 1972).

5. Id. , � 101 (a) .

6. Senate Report No. 91-296, 91st Cong., lst Sess., 5 (1969).

7. NEPA, 102(2)(c).

8. Id. , 102 (2) (A) ; (B) ; and (E) .

9. Executive Order 11514, S 2(a), 35 Fed. Reg. 4247 (March 5, 1970).

10. 40 C.F.R. � 1500.4(a), 38 Fed. Reg. 20551 (Aug. 1, 1973).

11. For comprehensive, if dated, reviews of judicial interpretations
of NEPA, see F. Anderson, NEPA in the Court (1973); and F.
Anderson, "The National Environmental Policy Act," in Federal
Environmental- Law (E. Dolgin and T. Guilbert, Eds., 1974).

12. 449 F.2d 1109 (D.C. Cir. 1971).

13. 449 F.2d at 1115.

14. � 511(c)(2) of the Federal Water Pollution Control Act
Amendments of 1972 [33 U.S.C. 1371(c)(2)].

15. 449 F.2d at 1123.

16. 458 F.2d 827 (D.C. Cir. 1972).

17. Id., at 837

18. Id., at 836.

NEPA

19. Id., at 834.

20. Id., at 838.

21. F.2d (D.C. Cir. July 21, 1976), 6 ELR 20599

22. Id., at 20602.

23. Id.

24. F.2d (D.C. Cir. July 21, 1976), 6 EER 20615.

25. Id., at.20617.

26. 481 F.2d 1079 (D.C. Cir 1973).

27. See following discussion of Kleppe v. Sierra Club.

28. 422 U.S. 289 (1975).

29. Id., at 320.

30. U.S. (June 28, 1976), 6 EER-20532.

31. The lower court's decision is found at 514 F.2d 856 (D.C. Cir.
1975).

32. 6 EIR at 20536-37.

33. NPDC v. NRC, F.2d (2d Cir. May 26, 1976), 6 ELR 20513.

34. F.2d (2d Cir. Sept 8, 1976), 6 EIR 20723.

35. Id., at 20723.

36. Council on Envirormental Quality Memorandum on Kleepe v.
Sierra Club and Flint Ridge Development Co. v. Scenic Rivers
Ass'n @Tf-Oklahcma [where the Supreme Court-exempted property
disclosure statements under the Interstate Land Sales Full
Disclosure Act from NEPA requirements because of a "clear
and unavoidable conflict" between the two statutes], Sept 16,
1976.

37. See Ccninent, "Second Circuit, CBQ Clarify Permissibility of
Interim Actions Prior to Czopletion of Programs EIS, " 6 ELR
10244-45 (1976) .

38. P.L. 94-83, 42 U.S.C. S 4332(2)(D).

NEPA 2

39. It is not entirely clear, however, whether the Amendment
forbids delegation to state agencies with less than statewide
jurisdiction, since it states that "this subparagraph does
not affect the legal sufficiency of statements prepared by
state agencies with less than statewide jurisdiction,"

40. 40 C.F.R. � 1500.5 (a) (2).

41. P.L. 93-383, 42 U.S.C. �� 5301 et. seq-

42. 468 F.2d 1164 (6th Cir. 1972).

43. 395 F.Supp 1187 (D.D.C. 1975).

44. 40 C.F.R. S 1500.5.

45. 36 Fed. Reg. 19342 � 516.2.5.A.

46. NEPA, 201-09.

47. 42 U.S.C. 1857h-7.

48. Federal Power CaTn-Lission, Alaska Natural Gas Transportation
Systems, Final Environmental Lipact Statement, Vol. IV
(April, 1976).

49. 41 Fed. Reg. 2052 (Jan. 13, 1976).

50. 40 C.F.R. S 1500.8(a)(1).

51. Id., � 1500.8(a)(2).

52. See text acccuipanying note 32, above.

53. See Calvert Cliffs Coordinating Ccnvdttee v. AEC, 449 F.2d. 1109,
1115 (D.C. Cir. 1971); EDF v. TVA, 470 F.2d 289, 300 (8th Cir.
1972); Sierra Club v. Froehlke, 486 F.2d 946F 953 (7th Cir.
1973); Conservation Council of North Carolina v. Froehlke,
473 F.2d. 664, 665 (4th Cir. 1973); Silva v. Lynn, 482 F.2d.
1282, 1283 (1st Cir. 1973); Jicarilla Apache Tribe v. Morton,
471 F.2d 1275, 1281 (9th Cir. 1973). For a contrary conclusion,
see National Helium Corp. v. Morton, 455 F.2d. 650 (10th Cir.
1971).

54. 470 F.2d at 297.

55. Calvert Cliffs Coordinating Committee v. ABC, 449 F.2d at 1115.

NEPA 3

56. 10 C.F.R. 9 51 (1976).

57. U.S. Nuclear Regulatory Commission, Regulatory Guide 4.2,
Revision 2, Preparation of Enviroratental. Reports for Nuclear
Power Stations (July, 1976). (hereafter cited as Regulatory
Guide 4.21.

58. U.S. Nuclear Regulatory Commission, Regulatory Guide 4.7,
Revision 1, General Site Suitability Criteria for Nuclear
Power Stations (Nov. 1975). [hereafter cited as Regulatory
Guide 4.71.

59. Regulatory Guide 4.2, p. V.

60. A list of those actions requiring the preparation of an EIS
is contained in 10 C.F.R. � 51.5(a) (1976).

61. 10 C.F.R. 9 51.20 (c) (1976).

62. Id., note 2.

63. Regulatory Guide, 4.2, p. 12-1.

64. Id.

65. Regulatory Guide 4.7, pp. 4.7-5-4.7-7 and 4.7-9-4.711.

66. Id., p. 4.7-9.

67. Id., p. 4.7-11.

68- 16 U.S.C. 1455(c) (3).

69. 42 U.S.C. 1857c-5.

70. 33 U.S.C. 1288.

71. See text preoeeding note 17, supra.

72. 10 C.F.R. SS 51.23, 51.26 (1976).

73. Id., S 51.23(c).

74. 42 U.S.C. � 4331(b).

75. 10 C.F.R. 9 51.52(c)(1) (1976).

NEPA 4

76. See proposed regulations at4l Fed. Reg. 16835 (April 22, 1976).
See also Nuclear Regulatory Commission, Office of Nuclear
Reactor Regulation, Early Site Reviews for Planned Nuclear
Power Stations, Policy, Procedures? and Possible Technical
Review Options .(Sept., 1976).

77. See, e.g., comuents of the Environmental Protection Agency on
Early Site Reviews and LiTftited I%brk Authorizations (July 13, 1976).

78. See 10 C.F.R. � 711f 42 Fed. Reg. 4826 (Jan. 26, 1977),
particularly �� 711.43 and 711.45.

NEPA 5

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2 3 4 5 6 1 8 9 10 11 12 13 14 15 1 E I 118 13 21, ? 122 23 24 25 26 21 28 29 30 31 37 33 34 35 36 37 38 33 10 41 42 43 44 45 46 47 49 50 51 52 53 54 55 56 51 58 59 60 51 67 63 64 55 65 67 68 69 ID 71 17 13 14 15 15 17 78 19 80

PSMOS
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4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 A 4 4 4 4 4 4 4 4 4 4 4 4 4 d 4 4 4 4 4 4 4 4 4 4 4 4 4 A
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II. The Coastal Zone Management Act

A. Introduction
The Coastal Zone Management Act of 1972, as amended in 1976 (Ca'a), 1

reflects the findings of a series of reports cmipleted in the late 1960's

and early 19701s. These reports examined the growing conflicts in the

nation's coastal areas reflected in increasing pressures for development

and a simultaneous deterioration in environmental quality. The first

and perhaps most important of the studies was ccnpleted in 1969 by the

Marine Science, Engineering and Resources Ccomission, better known as

the Stratton Ccrm-nission, entitled Our Nation and the Sea. In addition

to recognizing the extreme value of coastal areas for both their natural

and develcpment qualities, this report also recognized that rapid growth

in coastal areas has produced a multiplicity of overlapping jurisdic-

tional responsibilities that lacked the central focus necessary to achieve

ef fective management.

By the end of 1970, two additional reports had been canpleted:

The.National Estuarine Pollution Study, which enumerated the particular

development pressures threatening the national integrity of coastal

estuarine enviroments, and The- National Estuary Study, winch depicted

the alarming extent to which damage had already been inflicted on our

estuaries. During this period of increasing concern over the plight

of the nation's coasts, the idea of caTprehensive land use planning was

gaining acceptance. Largely as a result of two reports, One Third of

the Nation's Land and Model Land Development Code, many government

officials recognized public support for a mre authoritative state role

in land use planning and for strong Federal legislative support for

3 2.

these new state efforts. 2

The motivating forces for the CZMA, as outlinedin the Senate

Commerce Cam-Littee Report accappanying the Senate's version of the
Coastal Zone Management bill, included the following: 3

1. the extensive degradation of highly productive
estuaries and marshes;

2. burgeoning populations in coastal areas (53%
of the U.S. population lived within 50 miles
of the coasts in 1970), with resulting demands
for cam-ercial, residential, and recreational
develor-ment;

3. the fact that 70% of the nation's ccmmercial
fishing takes place in coastal areas; and

4. the fact that most estuarine areas equal or
double the food production rates of the best
upland agricultural areas, and are 15-20
times more productive than ocean waters.

In enacting the CZMA, Congress intended to create a mechanism to strike

a balanced approach for resolving conservation and develoFment interests

in the coastal zone. As the Act declares, its purpose is to "...pre-

serve, protect, develop and where possible, to restore or enhance, the

resources of the Nation's coastal zone for this and succeeding genera-
tions...." 4 The Act therefore represents the first national effort to

employ ccinprehensive land use planning as a tool to resolve conflicting

interests, and remains the principal federal land use program. Signi-

ficant interest nevertheless exists with the goal of extending federal

land use efforts to the reminder of the country.

B. The Role of the States in Develaing CZM Plans

Basically, the CZMA establishes a federal grant-in-aid program for
coastal states to encourage the development 5 and support the adminis-

tration6 of a program to manage the land and water uses of the nation's

ocean and Great Lakes coasts. The Act vests responsibility for admin-

istering the program with the Secretary of Commerce, who has delegated

his responsibilities to the Administrator of the National oceanic and

Atmospheric Administration. The Administrator, in turn, established the

Office of Coastal Zone Management (OCZM) to ensure that the provisions

of the CZMA are carried out. Under the term of section 305, states

are allowed up -to 4 years to develop a coherent CZM program. During

this develol-ment period, a participating state can receive federal fund-

ing in the amount of 80% (increased from 66 2/3% by the 1976 CZMA Amend-

nents) of the costs incurred during its development process. Individual

states may then suhnut a plan to the Secretary of Commerce for his appro-

val. The Secretary's review is primarily a determination as to whether

the miniml provisions required of state programs by the Act and its

accompanying regulations have been met. Those states which receive the

Secretary's approval are then eligible for continued federal funding

under section 306 for the inplanentation and administration of their

CZM programs. The amount of the funding provisions under section 306

are also 80% of the state's cost. In addition to signalling the begin-

ning of the inplrsmentation of the states' CZMA programs, the transition

fram "30511 to "306" funding creates a milestone that allows the Secre-

tary of Commerce to insure that each participating state CZM program

has met the policies and provisions set forth in the federal statute.

By selecting the states to inplen-ent the CZMA, Congress encouraged

state governments to assume a larger responsibility for specific land

and water use decisions. The Senate Commerce CcnTnittee Report reveals

that-this was done for two reasons. The first was the number of com-

plex issues involved in managing the coastal zone, including its fragile

ecological nature and its economic inportance. The Senate Report points

to a "sharp contrast" between land utilization within the coastal zone

and Luid utilization in other areas. The Report notes that this "sharp

contrast" results frcm a unique contest between public and private

interests that is brought about by the great nunher of people living in

coastal areas, an abundance of jurisdictional overlaps, and pressures

for ccmmercial and industrial development. The Report states, "the

fact is that the waters and the narrow strip of land within the coastal

zone is where the most critical demands, needs, and problem presently
exist.,,7

Tile second reason for placing primary responsibility at the state

level involved a-basic lack of confidence in the ability of local gov-

errzLexits to adequately deal with the ccmplex issues mentioned above.
The Report states:8

At present local goverments do possess consid-
erable authority in the coastal zone. However,
frequently their jurisdiction does not extend
far enough to deal fully and effectively with
the land and waters problem in that zone. Ad-
ditionally, there have been numerous examples of
canTexcial development taking precedent over the
protectio-n-of land and waters in the coastal
zone. There has been an understandable need to
create new revenues to provide governmental ser-
vices demanded by a growing population, thus
creating pressures for commercial, residential,
and other econmdc development.

The Senate CamTerce Ommittee Report therefore concluded that the states

9
should serve as the fulcrum of the program:

The Camnittee has adopted the States as the
focal point for developing*comprehensive plans
and Mplementing management programs in the
coastal zone. It is believed that the states
do have the resources, and constitutional
authority on which to build a sound management
program. (emhasis added)

Although the focus of the CZMA is on the state level, this does not

necessarily mean that local authorities will be preempted by state

planning actions. In add essing the nature of the proposed state-local

relationship, the CZMA requires that one or a ombination of the follow-

ing three techniques of controlling land and water use in the coastal
zone be used: 10

1. State establishment of criteria and standards for local
inplementation but subject to state administrative re-
view and enforcement of compliance;

2. Direct state land and water use planning and regu7-
lation; or

3. State administrative review for consistency with the
management program of all development plans, projects
or land and water use regulations proposed by any
state or local authority or a private developer.

It appears that most state CZM programs are eTrphasizing the first

option listed above but complementing it with concepts frcxn the second
and third alternatives. 11 Under the first option, state programs de-

velop guidelines to be followed by local governments in devising their

own plans, including zoning ordinances, regulations, and enforcement

mechanism. After the local plans are prepared, they must then be sub--

mitted for state review and approval prior to its implementation. WIAle

this option allows the states to ensure that local plans are consistent

with the state guidelines, local governments retain their traditional

role in implementing specific land and water use decisions.

3 C

The second option listed above does preempt the traditional local

planning role and permits the state to becane directly involved in

establishing detailed land and water use regulations; however, fa,7

-states have elected to use this option as its primary method of control.

Ihstead, some states are relying on this option as an alternative to

be used only if local governments fail to prepare their own plans, or

fail to adhere to the state's guidelines.

The final option leaves local goverments free to adopt their own

plans without the. guidance of specific state guidelines. The state

must, however, have provisions for review of any local plan, land or

water use regulations or individual development projects. Because this

option is too cumbersome to administer as the sole method of control by

a state goverment, it has been used only sparingly in scme states.

When, it has been &-aployed, it is generally applied to large developments

or "developments of regional impact." Here, although local governments

love a strong voice in the ultimate decision, the final ruling usually

rests with the state goverment.

The planning provisions required of state plans under the CZM
have been interpreted in the federal regulations 12 prcmulgated by the

Office of Coastal Zone Management to be process oriented. The federal

regulations therefore do not stipulate incorporation of specific sub-

c
stantive elements in plans in order to achieve the Secretary's approval

for funds to implement state programs. What is required is that certain

broad areas be addressed to -the satisfaction of the Secretary. Only in

this manner could -the CZMA acccnrmdate the extreme complexities of

dealing with vastly different types of environments, the unique problem

and pressures of differentgeographic areas, and the separate govern-

mental and institutional arrangements found in different states. The

result of this approach has been to have each state develop a unique

program with its own inherent strengths and ueaknesses. Significantly,

these flexible requirements grant states a wide latitude in which-they

can forraulate plans. Conceivably, approved state plans could enphasize

either end of a spectrum, running frcim extreme conservation to extreTte@

development.

Most of the actual planning provisions which- state plans must ad-

dress are listed in section 305(b) of the CZMA. The 9 requirements

described in this section are listed-below, with an asterisk before
those which have the greatest bearing on the siting of nuclear facilities: 13

*1. an identification of the boundaries of the coastal zone
subject to the management program;

*2. a definition of what shall constitute permissible land
uses and water uses within the coastal zone boundary
which have a direct and significant inpact on the coastal
waters;

3. an inventory and designation of areas of particular
concern within the coastal zone;

4. an identification of the means by which-the state pro-
poses to exert control over the land uses and water uses
referred to in 2 above;

*5. broad guidelines on priorities of uses in particular
areas including specifically those uses of lowest
priority;

6. a description of the organizational structure proposed
to implement such a management program;

7. a definition of the term "beach, " and a planning pro-
cess for the protection of, and access to, public
beaches and other public coastal areas of environ-
meirtal, recreational, historical, esthetic, ecological
or cultural value; (added under the 1976 CZMA Ameiid-
ments)

303

.*8. a planning process for energy facilities likely to
be located, in or which my significantly affect,
the coastal zone, including but not limited to, a
process for anticipating and managing the impacts of
such factilities (added under the 1976 CZMA Amend-
ments); and

9. a planning process for 1) assessing the effects of
shoreline erosion, and 2) studying and evaluating
ways to control or lessen the impacts (added under
the 1976 CZMA Amendments).

Three additional planning requirements of relevance to the siting of

nuclear facilities are contained in section 306:

1. The managEment program must have been developed with
the opportunity of full participation by relevant
federal agencies,- 14 /

2. The management program must provide for adequate con-
sideration of the national interest involved in plan@-
ning for, and in the siting of, facilities which are
necessary to meet requirements which are other than
local in naturey 15/ and

3. The management must [have] developed and applied a
method for detexmining uses of regional benefit and
established a method for assuring that local land
and water use controls in the coastal zone do not
unreasonably or arbitrarily restrict or exclude
those uses of regional benefit. 16/

The C72AA Amendments of 1976 also added'two sections to the Act

that provide various forms of assistance to encourage and aid state C2M

programs in undertaking certain planning processes. The most important

of these, at least in terms of available funding, is the Coastal Energy
Impact Program (CEIP). 17 This section of the Amendments was enacted in

response to the important role being thrust upon coastal states in deal-

ing with the "energy crisis." The CEIP is authorized to expend $1.2

billion to assist states in planning ahd ocnpensating for the effects

of energy facilities and activities that take place in the coastal zone.

I
The financial assistance is in the form of loans,. grants, and bond guar-

ahtees. Although portions of the CEIP pertain to nuclear facilities,

much of the funding allowances are restricted to OCS fossil fuel re-

lated development and are thus not available in connection with nuclear

facilities and activities. The second funding provision added by the
1976 Amendments concerns the distribution of interstate grants. 18 De-

signed to encourage states to coordinate their coastal zone planning,

policies, and programs with those of neighboring states, the provisions

of this section allow for funding of up to 90% of the cost of such

coordination, study or inplementation. Each of these sections is also

discussed later in this chapter.

At present, all of the 30 coastal states, as well as the four ter-

ritories eligible for participation in the federal coastal zone manage-

went program, are receiving federal funding. All but one state are

receiving funds under section 305 for program development. These states

are in either their 2nd, 3rd or 4th (and final) year of eligibility

under this section. One state, Washington, has had its CM program

approved by the Secretary and thus is inplementing its plan with the

assistance of 306 funding. Several other states, or portions thereof,

are in the process of subnLitting or are about to sulmiit CZM plans for

306 approval. It is,however, likely that not all state CZM programs

will survive to 306 implementation due to their inability to maeat the

conditions required for federal approval.

The two major forms of encouragement for state participation in

the federal program are the funding provisions mentioned above and the

federal consistency provisions. The latter are designed to serve as a

form. of guarantee to participating states, that any federal program or

activity in t1kat state's coastal zone -- including the granting of any

fedexal license -- will not be undertaken unless it is consistent with

a state's approved C711 plan. Although the funding provisions of the

Act were probably of greater importance in attracting initial partici-

pation by coastal states and territoriest the consistency provisions

are probably of greater value as encouragement for assuring their con-

tinued participation. The novel approach and authority exercised under

the consistency provisions may make their long term importance greater

than the attraction of federal funding. Indeed, the consistency pro-

visions are quite possibly the most important innovations in the Act

as they add a new dimension to federal-state relations.

C. Federal Consistency

Perhaps the most ijrportant reason for NFC to be aware of the con-

tent of state C724 prograras lies in the fact that approved State CZM

programs will exert considerable influence on the ability of the Coar-

mission to take certain actions. After a state's program receives

federal approval from the Secretary of Ccmerce, NRC cannot issue a

license for an activity that would "affect" the state's coastal zone

until the state certifies that the activity is consistent with its CZM

program. The duties which the federal consistency provisions of the

CZMA place upon federal agencies are therefore of central importance

to N.C. These provisions, wtlich essentially alter federal-state rela-

tions in the coastal zone by promising federal acconviodation to state
interests, are perhaps the most complex aspect of the Act. 19 An irxii-

cation of the complexities involved in implementing this novel approach

1@1

to federal-state decision-making is provided by the fact that the office

of Coastal Zone Management, which promulgated proposed federal consist-
ency regulations, 20 is-in the process of redrafting the regulations and

will be reissuing them in proposed form. Consequently, it is not yet

possible to predict precisely how OC724 will implement the federal con-

sistency provisions. It is possible, however, to review the statutory

requirements in terms of their potential impact on NRC activities.

When NRC is considering an application for a required permit or

license under its regulatory authority, the applicable consistency

requirements are those contained in section 307(c)(3)(A) of the. CZMA,

which reads:

After final approval by the Secretary of a
state's management program, any applicant for
a required Federal license or permit to con-
duct an activity affecting land or water uses
in the coastal zone of that state shall provide
in the application to the licensing or permit-
ting agency a certification that the proposed
activity complies with the state's approved
program and that such activity will be con-
ducted in a manner consistent with the program.
At the same time, the applicant shall furnish
to the state or its designated agency a copy of
the certification, with all necessary informa-
tion and data. Each coastal state shall estab-
lish procedures for public notice in the*case
of all such certifications and, to the extent
it dee m, appropriate, procedures for public
hearings in connection therewith. At the ear-
liest practicable time, the state or its des-
ignated agency shall notify the Federal agency
concerned that the state concurs with or objects
to the applicant's certification. If the state
or its designated agency fails to furnish the
required notification within six months after
receipt of its copy of the applicant's certifi-
cation, the state's concurrence with the certi-
fication shall be conclusively presumed. No
license or permit shall be'granted by the *Nii-
eral agency until the state*or its designated

agency has concurred with the applicant's cer-
tification or until, by the state's failure to
actl the concurrence is'conclusively presumed,
unless the Secretary, on his own initiative or
upon appeal*by the applicantr finds, after Pr0-
viding a reasonable opportunity for detailed
ccrments frcm the Federal agency involved and
fra-a the state, that the activity is consistent
with the objectives of is title or is other-
wise necessary in the interest of national
security. (emphasis Td7d-ed)

There are several things to note about this provision. First of

all, it is applicable only to federal licenses and permits and only to

those issued after a state's CZM plan has received approval fran the

Secretary of Commerce. The prospective nature of this requirement is
supported by the legislative history of the CZMA. 21 Second, consistency

attaches to all permit or licensed activities that affect the state's

coastal zone. While neither the CZLNiA nor its legislative history defines

the term "affect," it would seem to clearly imply that the activity need

not be within the defined boundaries of the state's coastal zone. For

example, an applicant for a construction permit or an operating license

for a nuclear power station outside the coastal zone but affecting it

would still be required to obtain certification frcm the state.

The initial determination of whether consistency attaches is vested

in the state. OCZM's proposed consistency regulations suggest that this

be accomplished by the state developing and transmitting to Federal agen--

cies a listing of all federal license and permit activities that require
state review for consistency. 22 Both the proposed California 23 and
Oregon 24 CZM plans, for example, have listed licenses and pemdts issued

by NRC for the siting and construction of nuclear power stations among

the federal activities which will require state certification. Therefore,

if these plans receive federal approval, NRC will not be able to issue

such licenses and permits until the state certifies that the proposed

activity is consistent with its program.

When consistency is required, an applicant for an NBC authorization

will have to prepare and transmit to NRC, along with his application,

a certification attesting to the fact that the proposed activity will

be consistent with the. content of the state plan. This does not mean

that the proposed activity must be specifically mentioned in the state's

Cal plan, but rather that it must be in caTpliance with the requirements

set-forth therein. A copy of both the application and the certificate

must also be sent to the state C2M agency in order to allow the state

to verify the applicant's findings. When the state receives the appli-

cant's certification, it issues public notice of the proposed activity
and may hold public hearings. 25 The state then has a maxi6am of six

mnths to announce its decision concerning the consistency of the pro-

posed activity. After this maximm. period of time, failure to forward

a decision to NRC and the applicant amounts to a decision concurring

with the applicant's certification statement. According to the proposed

consistency regulations, most consistency decisions should be reached

within 30 to 90 days. only in "extraordinary cases" should a decision
not be reached until the end of the six month period. 26

If a state determines than an NRC applicant's activity is not con-

sistent with its approved program, the applicant may appeal the state's

denial of certification to the Secretary of Commerce on the basis that

the activity is consistent with the objectives or purposes of the Fed-

eral C&MA, or is necessary in the interest of national security. OCZM's

proposed consistency regulations define "consistent with objectives of

purposes of the Act" to require that a three-part determination be made
by the Secretary: 27

1. The proposed activity is cmpatible with the objectives of
the federal C724A (although not with the state's specific
program requirements);

:2. Complete adherence to the state's program cause the appli-
cant to suffer a substantial burden; and

3. The decision, if permitted, would not have a significant
negative in-pact upon the integrity of the state's program.

"Necessary in the interest of national security" is defined by the pro-

posed regulations as requiring a determination by the Secretary inde-
pendent of the views of Defense Department agencies. 28 It should again

be emphasized, however, that the final form of OCZM's consistency regula-

tions has yet to be determined, and that there may be substantial changes

in the subsequent draft, expected to be issued in March.

If a state does certify an activity requiring an NRC license or

permit as being consistent with its CZM program, or if the Secretary

overrides the state's denial, it must be noted that this does not re-

lieve NRC of its duty to review the application in light of its own

regulatory policies and objectives. In other words, NRC is in no way

precluded frcm denying the application if it detexmines that the appli-

cant has not satisfied the Ccmmission's own licensing and permitting

requirements.

The CZMA contains three other federal consistency provisions re-
lating to activities "conducted or supported" by federal agencies, 29
federal developatent projects, 30 and federal grant-in-aid programs. 31

Because NIC responsibilities regarding nuclear activities are limited
by the Energy Reorganization Act of 1974 32 exclusively to licensing and

pIexmitting activities, it is not necessary to examine these consistency

provisions here. It should be noted, however, that these provisions

will be applicable to the activities of other federal agencies, such as

the Energy Research and Devel-cpment Administration, which are actively

involved in the construction of nuclear facilities or in the transporta-

tion or disposal of nuclear materials. Since these agencies will have

to obtain an NRC license or permit to carry out their activities ', both

the specific activity and the NRC authorization will be subject to

consistencY with approved state CZM programs. In this instance, the

proposed consistency regulations-encourage consolidated review by the
states. 33

One aspect of the CZMA's federal consistency provisions that has

particular irrportance to other planning processes examined in this study

concerns an exception to the consistency requirements. Section 307(f)

of the CMA states:

Notwithstanding any other provisions of this
title, nothing in this title shall in any way
affect any requirement (1) Established by the
Federal Water Pollution Control Act, as amended,
or the Clean Air Act, as amended, or (2) Estab-
lished by the Federal Government or by any state
or local goverment pursuant to such Acts. Such
requirements shall be incorporated in any pro-
gram developed pursuant to this title and shall
be the water pollution control and air pollution
control requirements applicable to such program.
(Emphasis added)

Thus, rather than having to demonstrate consistency with approved state

CZM program, air and water quality requirements are to be incorporated

into CZM plans. While it is clear that a state's C724 program cannot

adopt less stringent air and water quality standards than those estab-

lished pursuant to the Clean Air Act or the Federal Water Pollution

41 C

Control Act, the question of whether mre rigorous standards could be

adopted has specifically been left open by the proposed consistency
regulations. 34

A related question concerns how the state CZM plans are to be

coordinated with the air and water quality planning processes described

in subsequent sections of this study. Largely because the Office of

Coastal Zone Management and the Envirornental Protection Agency have

been unable to agree on precisely what elements of the air and water

quality planning processes constitute "requirements" within the meaning

of section 307(f), no effective mechanisms have been developed to inte-

grate the planning processes. It is likely, houiever, that steps will

be -taken to coordinate the various plans affecting particular areas

before they are iniplemented.

One final note on the CZIVA's consistency provisions concerns the

exclusion of federal lands fran the Act's definition of the statels
coastal zones. 35 This exclusion has recently been interpreted by the

Attorney General to extend to all federal lands. While this effectively

removes frcm the states much of their ability to plan for and regulate

activities that take place on lands that would otherwise be considered

tobe within their coastal zones, it does not necessarily preclude the
36
application of the consistency requirennnts. This is because, at least

with respect to the consistency provision of greatest concern to NFC,

the test for whether consistency attaches is an "affecting" standard.

Consequently, proposed activity on federal lands, which_ by definition

would be outside of the state's coastal zone, could nevertheless be

subject to consistency with the state's approved CZM program, if the

activity %vuld affect land or water uses within the coastal zone. For

e_k@le,if an NRC license or permit uere required for an activity taking

place on excluded federal lands, and if the activity would affect the

land or waters of the state's defined coastal zone, a certification of

consistency frcrq the state would be a prerequisite to NRCIs authorization.

The consistency regulations proposed by OCZM do not attempt to

clearly define the sccpe of the "affecting" standard. They state:

... it shall be presumed that a prcposed activity
will affect land or water uses in the coastal
zone if the activity is to take place within,
adjacent, or in close proximity to the bound-
aries of the coastal zone.... 37/

It may therefore be difficult to determine in a given case whether

consistency is required. This may be particularly true with respect to

the siting of nuclear po%er stations, where thermal water discharges

could conceivably be shown to "affect" a very large surrounding area,

perhaps even an entire estuary. Consequently, NRC and the relevant

states should seek to develop mechanisms that will serve to put appli-

cants for required NRC authorizations on notice as to when their activi-

ties will require state certification in spite of the fact that they

will not take place within the defined coastal zone.

D. Federal-State Cooperation and Coordination

It must be emphasized that consistency of NRC-issued authorizations

with a state's CZM program is required only after the state's program

has received federal approval frcm the Administrator of NOAA. As pre-

viously mentioned, at the present time, only the state of Washington

has received federal approval and is implementing its CZM program. All

of the other states are in varying stages of program development. It

4 nu

is at this stage that federal-state interaction can play a crucial role

in the ultimate shape of a state's CZM plan, and consequently, influence

the ultimate in-pact which-the federal consistency provisions will exert

on federal agency program missions.

In contrast to the federal consistency requirements, which essen-

tially place the burden on federal agencies to assure that their actions

are in conformance with the state's approved CZM program, the federal-

state coordinative mechanisms before program approval basically operate

to compel the states to consult and cooperate with federal agencies.

If a state fails to adeciuately involve interested federal agencies in

the development of its CZM program, its program can be denied federal

approval. And if this occurs, not only will the state be deprived of

federal funding to assist in inplementing its program, but the federal

consistency provisions will not be available to help the state implement

a comprehensive land and water use program for its coastal zone. There

are, therefore, strong incentives for the states to initiate and main--

tain close cooperation with federal agencies, such as NFC, throughout

the development stage of their CZM programs.

The nature of the CZMA's goal of close ccirmunication and coordina-

tion between federal and state efforts is first described in two pass-

c
ages in the Act's declaration of findings and policy. Section 302(h)

states:

The key to more effective protection ... of the
coastal zone is to encourage the states to ex-
ercise their full authority over the lands and
water in the coastal zone by assisting the
states, in cooperation with Federal'and local
govej@rments ... in developing land and water use
programs the coastal zone.... (emphasis added)

The need for close state-federal agency ties is again raised in section

303(c), w1hich declares the national policy:

for all federal agencies engaged in programs
affe'cEHg_ th coastal zone to cooperate and
participate with state and local governments
and regional agencies in effectuating the pur-
poses of this title. (emphasis added)

These passages make it clear that federal agencies and the states are

to work together in satisfying the policies of the Act. These sections

--also place the burden of initiating any contact on the states rather

than the federal agencies, although federal agencies may also be asked

to respond to requests frcm the federal Office of Coastal Zone Manage-

ment on some iratters.

To ensure that close federal-state cooperation is maintained

throughout the development of state CZM programs, and that these pro-

grams reflect a two-way give and take exchange betwraen federal and state

interests, the CZ14A described procedures which must be followed in order

for the states to receive federal approval of their CZM programs. Fed-

er,al-state coordination before the state's program is approved is essen-

tially a two-step process. The first step involves the requirement of

section 306(c)(1) that "relevant federal agencies" be afforded "the

opportunity of full participation" in the development of the state's

program. The Nuclear Regulatory Commission is specifically listed as
a 11relevant" agency in the implementing regulations. 38 The "opportunity

of full participation" has been interpreted by OCZM to mean "requiring

pzff-ticipation at all appropriate stages of manage-nent program develop-
Ment.'139 It should be auphasized that this does not require participation

by federal agencies, only the opportunity for it.

.The second step of Federal-state cooperation occurs after the state's

program, has been submitted for federal approval. Section 307(b) states

that. "the Secretary shall not approve the management program... unless

the views of federal agencies principally affected have been adequately

considered." "Principally affected agencies" have been construed by OCZM

to mean "relevant agencies," and this includes NFC. Section 307(a) fur-

they, provides that "the Secretary shall consult with, cooperate with,

and, to the maxhnua extent practicable, coordinate his activities with

otl-er interested federal agencies." OC724's regulations provide that if

a state's program which is submitted for federal approval appears to caTply

w-ith the criteria established for federal approval, -the Administrator of

NOAA will prepare a draft environmental impact statement and forward it,

along with a copy of the state's management program, to each relevant fed-
eral agency for review and comment. 40 only after these camients are re-

ceived, are given "adequate consideration" by the Administrator, and a

final environmental impact statement prepared, can the state's prograrn

receive federal approval.

Because many states are reaching the end of the development phase

of their C72,1 programs and are or will shortly be seeking federal approval

to implement their programs, initial contacts between individual state

programs and NRC should have already occurred. OCZM's regulations stip-

ulate that "early in the development of its state program" each state

should contact all relevant federal agencies (including NRC) to estab-
lish procedures for assuring that "full.participation" does take place. 41

Before the Administrator can consider a state's program for federal

approval and prepare a draft environmental impact staten-ent on it, the

state must submit to OCZM a list of the federal agencies with which it

has worked in developing the program, along with the names of the prin-

cipal contacts in each agency and the agency's views regarding the
42
state's program-

If during the development stage, NRC and the state cannot agree
on certain aspects of the state's program, section 307(b) of the CZM44
and the ensuing regulations 45 provide mechanisms to resolve the differ-

ences. First, after being informed of the disagreement in writing by

either NRC or the state, OCZM wAl endeavor to reconcile the differences

through informal assistance. If this fails to result in an adequate

resolution, the Administrator of NOAA will solicit statements fran both

NRC and the state and reccnrend a solution. If the parties refuse to

accept the Administrator's reccmTendation, the office of Management and

Budget then may also recamend a solution. If this recamiendation is

not accepted, the regulations state that the Administrator must deter-

mine and ccmunn-dcate to the parties "the extent to which the inclusion

in the state program of the state agency's.position in the-disagreement
would affect his ability to approve tha state-program." 46

After a state's CZM program has been developed and is submitted

for federal approval, the NEPA process affords NBC an additional oppor-

tunity to express its view on the content of the state's program. Copies

of both the draft EIS and the state's program are to be submitted to

NIRC for review and ccmment. In addition, NRC has an opportunity to

submit ccmments on the final EIS, to be prepared after the initial com-

ments are received. Before the Administrator of NOAA can approve the

program., he must review and consider the canments on both the state's
program and the final EIS. 43
52

Similar mediation procedures are provided in section 307(b) for

f-ederal-state disagreements that arise in the context of the adminis-

tration of an approved state program. These disagreements, however, are

likely to involve the impact of the federal consistency requirements on

f
,ederal "conducting and supporting activities" and federal development
projects. 47 Since, as pointed out above, NRC's role is limited to li-

censing and permitting functions, disputes between NRC and a state after

a state's program receives federal approval should not occur. It is pos-

sible, houve-ver, that an NRC applicant could appeal a state's consistency

determination to the Secretary of Cmmerce, as mentioned in the previous

discussion of federal agency.

Potential areas of disagreement between NRC and the states in the

development of their CZM programs could concern two elements required of

all state programs. The first is embodied in section 306(c)(8), Wilich

stipulates that state programs must provide:

for the adequate consideration of national
interest involved in planning for, and in
the siting of facilities (including energy
facilities in, or wbich significantly affect,
such state's coastal zone) necessary to meet
requirements which are other than local in
nature.

CCZM1s regulations identify energy production and transmission facili-

ties as being among those for which national interest consideration is
necessary and specifically lists nuclear powar stations. 48 Because 11re-

quirements which are other than local in nature" has been interpreted
to include facilities "clearly designed to serve more than one locality," 49

other facilities in the nuclear fuel cycle should also be considered as

falling within the scope of this provision.

The implementing regulations stress that this required eleuent of

a state's program does not compel a state to site "national interest"

facilities in its coastal zone, only that its program give "adequate
consideration" to these facilities. The regulations state: 50

The requirewnt should not be construed as
compelling the States to prcpose a program
which accommodates certain types of facili-
ties, but to assure that such national con-
cerns are included at an early stage in the
State's planning activities and that'such
facilities. not be arbitrarily excluded or un@
'Teasonably'restrictod in, the'manaqemen-t'2@2jram
Without'good and'sufficient reasons ... Managenmt
programs must.recognize the need of local as
well as regional and national populations for
goods and services which can'be supplied only
through the'use of facilities in the coastal
zone in order to nake reasonable proviFi-ons for
such facilities in light of the size and popu-
lation of the State, the length and character-
istics of its coast and the contribution such
State is already making to regional and national
needs. @ This'wdll require the. state to enter
into discu8sions'With appropriate Fed @al a@gen-
cies and agencies of other States in the region,
a process which should begin early in the de-
velopment of the management program so that
the full dimensions of the national interest
may be considered as the State develops its
program. (Enphasis added)

During state program develcpment and administration, "national

interest" facilities are to be considered in the same rranner as any

other coastal use. In fact, the consideration of these facilities is

intended to be part of the same procedure used for pexmissible and

priority use determinations, described in the following section of this

chapter. The one difference comes when a state program submits its plan

for federal approval.. At that time the progrcm must present evidence

that during the review of "national interest" facilities appropriate

consultation with relevant federal agencies (e.g. the NRC, regarding

nuclear power stations, fuel reprocessing plants, etc.) has been conw-

ducted. In this manner, OCZM anticipates that national views, as rep-

resented by these federal agencies, will be incorporated into state CZM

plans. The regulations encourage the states to "actively seek ... guid-

ance from these federal agencies, particularly in view of the fact that

all management programs will be revieued with the opportunity for full
cami-ant by all Federal agencies prior to [federal] approval." 51 They

also note that OC2M will encourage federal agencies to develop and make

available to the states policy statements regarding their perception

of the national interest in the coastal zone.

Interstate cooperation is just as significant as close federal-

state cooperation in assuring that "national interest" facilities are

given adequate consideration. OCZM's regulations strongly suggest that

a state's C2M program must look beyond its own boundaries and consider
the needs of nearby states in order to fulfill this requirement. 52

The States should also consult with adjacent
and nearby States which share similar or com-
mon coastal resources or with regional inter-
state bodies to determine how regional needs
may be net in siting facilities. Specific
arrangements of "trade-offs" of coastal re-
source utilization should be documented with
appropriate supporting evidence. The import-
ance of this type of interstate consultation
@Wl@copperation in,planning cannot be over-
enlphasized'f0r'it @offers.*the States'the Oppor-
La@ty of'resolving significant@national
problems on a Wi9TO-UtFederal
intervention.- (emphasis added)

It should be noted that the requirement of giving adequate consid-

eration to siting "national interest." facilities will now be directly

related to certain planning processes to be developed pursuant to the

Coastal Zone Management Act Amencbents of 1976. The most prominent of

these, which are discussed in the following sections of this chapter,

is the newly required energy facility siting process.

If all the procedures available to NRC and the states to develop

close consultation regarding the siting of "national interest" nuclear

facilities are utilized, there is little likelihood of disagreements

arising betwe-en the Camussion and the states. Thus,thp_ mediation

procedures need not be invoked. This is particularly true in light of

the large role already played by the states in the siting of nuclear

power stations. By effectively utilizing its opportunities to assist

states in the develcpment of their CZM programs (e.g., by providing

relevant information, data, or studies),, NEC can, rwreover, heln to make

the role of the states in planning for the siting of nuclear facilities

in the coastal zone more efficient and more responsive to the national

interest.

The second potential area of conflict between NRC and the states

regarding the content of their CZM programs could involve the require-

ment in section 306(e)(2) of the CZMA that state programs must include:

@a method of assuring that local land and water
use regulations within the coastal zone do not
unreasonably restrict or exclude land and water
uses of a regional benefit.

The inplementing regulations define uses of a regional benefit to mean

those "that typically provide benefits to a significant area beyond the

boundaries of a single unit of the louvast level of locall general-purpose
goverment.1153 The regulations also stipulate that in carrying out this

requirement the states '!must first identify those uses wt�ch [they per-
ceive] will affect or produce some regional benefit." 54 Mile the states

are given considerable discretion in making this detexmination, the reg-

ulations do provide that all "national interest" facilities "should" be

included as uses of a regional benefit. After these uses are identified,

the states must incorporate in their CZM programs mechanisms to guard

against their arbitrary exclusion by localities.

There should be no blanket exclusion or re-
strictions of these uses in areas of the
coastal zone by local regulation unless it
can be shown that the exclusion o7r -restriction
is based upon reasonable considerations of
the suitability of .the area for the uses or
the carrying capacity of the area. The re-
quirEment of this section does not exclude
the possibility that in specifl-c-areas certain
uses of regional benefit may be prohibited.
However, such exclusions way .not be capricious.
The method by which the management program
will assure that such unreasonable restrictions
or exclusion not occur in local land and water
use decisions will, of course, be up to the
State, but it should include the preparation
of standards and criteria relating to State
int@@@retation of "unreasonable restriction
or exclusion," as %Tell as the establishment
of a continuing mechanisms for such determina-
tion./55 (emphasis added)

This requirEment may serve as an effective means to ensure that

coastal states exrploy regional considerations, including the interests

of areas outside the geographic boundaries of their coastal zones, in

the siting of facilities which are other than local in nature. For ex-

ample, if siting restrictions for a nuclear power station could cause

an umanageable interface with respect to transmission interconnections

on an area-wide power grid, an approved state CZM program should have

in place mechanisms whereby such regional interests can be voiced and

appropriate action can be initiated. If, however, a particular state

has not effectively incorporated such mechanisms into its C2M progran, or

has not identified certain "national interest" facilities as falling with-

in the purview of "uses of a regional benefit," then NRC could invoke

the mediation provisions outlined above.

Finally, in addition to providing for close federal-state cooperation-

in the development of state programs, the C2MA requires that members of

the public have the opportunity to participate in the formulation of the

states' CZM programs. Section 306(c)(3) of the CZMA requires the states

to hold public hearings in the development of their programs. The imple-

menting regulations establish procedures for public notice, public hear-

ings, and ccmprehensive sumtaries of the hearings which are to be sub-
nutted to OC2M at the time the state requests federal approval. 56 The
regulations also encourage less formal means of public involvement. 57
They further stipulate that a state's program will not be approved: 58

unless there has been a full and effective
opportunity for public involvement in every
portion of the plan. The key to ccmpliance
with the provisions of the Act is the assur-
ance that the public has had an adequate
opportunity to participate in the development
of the plan.

It would seem that the public form might be an especially useful

means for federal agencies to assess a state's develcping program in

terms of their perceptions of the national interest. 'It could also

serve as an effective mechanism for federal agencies to provide infor-

nation of utility to a state's program. The potential of both formal

and informal public involvement techniques to encourage close federal-

state cooperation, therefore, should not be overlooked.

E. Required Planning Elements of CZM Programs

Two of the required planning elements which must be reflected in

state CZM programs before they can receive federal approval -- the ade-

quate consideration of "national interest" facilities and the method to

ensure against unreasonable local restriction of "uses of a regional

benefit" - have already been detailed. There are, howe-ver, five addi-

tional elements which must be incorporated into a state's program.

First, section 305(b)(1) of the CZMA requires the states to identify

the boundaries of its coastal zone. This boundary identification is

hTportant to federal agencies, such as the NRC, because the boundaries

of the state's coastal zone will effectively determine the scope of ap-

plicability of the consistency provisions. It is logical to assume that

in a state with an expansively defined coastal zone a greater number of

federal activities will "affect" its coastal zone, and thus must be con-

sistent with the CZM program, than in a state with a mre restrictive

boundary delineation.

Although the seaward boundary of all state coastal zones is statu-

torily established as the outer limit of tl-p- territorial sea (at present

3 miles), the inland boundary can vary significantly from state to state

and even within states. This is because the landward boundary is to ex-

tend to "shorelands, the use of which has a direct and significant inpact
upon coastal waters." 59 Due to the variety of biological, topographical,

political and other factors in the various states, the inland boundary

may penetrate as little as a few hundred yards or as far as 20 miles or

ncre. OC2M's regulations note that the key to fulfilling this require-

merit is the utilization of a procedure which results in the selection of

a 'Landward boundary that bears a "reasonable relationship" to the statu-
tory definition of shorelands. 60 In addition, the states must utilize

this procedure to identify particular coastal features, such as trans-

itional and intertidal areas, salt marshes, wetlands, and beaches, that

'59

are to be included. 61 Excluded from the parameter of the states' coastal

zones, however, are federal lands, as noted previously in the discussion

on federal consistency.

The second planning element which must be incorporated into state

CZM programs is section 305(b)(2)ls requirement of defining "permissible

land and water uses within the coastal zone that have a direct. and sig@

nificant impact on coastal waters." This requirement has obvious impli-

cations for potential applicants for NRC authorizations. In order to

fulfill this requirement OCZM's regulations specify that the states must

first establish which uses have a "direct and significant impact on

coastal waters." Then they must determine which of these uses are per-

missible in light of the nature and location of the area. In making the

latter determination, the states are to employ a procedure that includes

an inventorying of coastal resources; a means of analyzing the capability

and suitability of each resource type inventoried to acccmnodate existing,

projected, or potential uses; and a means of assessing the environmental
impact of reasonable resource utilizations. 62

The implementing regulations state that where a particular use is

prohibited, the above analyses should be employed as evidence to support
the prohibition. The regulations also stipulate that: 63

In determining peiauissible uses, States should
give consideration to "requirements for industry,
commerce, residential development, recreation,
extraction of mineral resources and fossil fuels,
transportation and navigation, waste disposal,
and harvesting of fish, shellfish, and other
living marine resources.

The third required planning element involves section 305(b)(3)ls

"inventory and designation of areas of particular concern within the

coastal zone." These areas are established largely as a result of data

accumulated in the inventory of coastal resources conducted in connec-

tion with the designation of permissible uses. It should be emphasized

that these specifically designated geographic areas way include not only

areas of significant natural value, but also areas especially suited to

intensive use or development and developed areas uhere reclamation, res-
toration, and public access measures are especially needed. 64 (DC724's

regulations indicate that the development of state-wide policies and
actions regarding those areas is encouraged. 65

The fourth required planning element concerns section 305(b)(5)ls

"broad guidelines on priority uses in particular areas, including spe-

cifically those uses of lowest priority." This requirement is closely

tied -to both the identification of permissible uses and the designation

of areas of particular,concern. These guidelines establish a state's

policies as to the relative priorities of permissible uses in given areas

throughout the coastal zone. Their purpose is to provide a franework in

uhich a state or its localities can deal with specific development activi-

ties in various areas. OCM's regulations specifically note the relation--
ship between this requirEment and the siting of energy facilities: 66

[the state's] program should establish special
procedures for evaluating land use decisions,
such as the siting of regional energy facilities,
which my have a substantial impact on the en-
vironient. In such cases, the program should
make provision for the consideration of avail-
able alternative sites which will serve the
need with a minimum averse impact. (emphasis
added)

The fifth required planning element involves section 306(c)(9)ls

procedures whereby specific areas may be designated for the purpose

of preserving or restoring them for their conservation, recreation,

ecological, or esthetic values." This requirement actually represents

particular types of "areas of particular concern." Recognizing this

similarity, the implementing regulations provide that "unless the state

can make a compelling case to the contrary," all areas designated for

preservation and restoration will also be considered as areas of partic-
ular concern. 67

Taken together, these five required planning elements enable a

state to designate specific geographic areas and regulate permissible

uses in these areas by establishing guidelines on priorities of uses.

While in same areas states may exclude certain types of develcpment to

preserve important envirormental qualities, in other areas they may pre-

serve a particularly viell suited industrial site from preeniption by other

uses. In this marner, power stations or other permissible uses may be

restricted from some coastal sites and encouraged in others. For example,

the California coastal plan includes a map that divides its coastal zone

into four broad categories prioritizing areas for nuclear power station

development into those that are favorable, possible, require special con-
sideration (due to earthquakes), and are prohibited. 68

F. Planning Elements Added by the Coastal'Zone Management Act
Amendments of 1976
The Coastal Zone Management Act Amendments of 1976 69 signed into

law on July 26, 1976, made substantial changes in the CZMA. In addition

to extending the federal consistency requirements to outer continental

shelf activities and establishing a $1.2 billion Coastal Energy Impact

Program to assist states in meeting the reeds stemrdng from energy de-

velopment activities in their coastal zones, the Amendments contain a

nimber of provisions which might effect the siting of nuclear energy

facilities. The most important of these involve section 309's federal

assistance to encourage interstate planning and coordination; section

305 (b) (8) Is required energy facility planning process; and section

308(c)Is planning grants to assess the economic, social, and environ-

mental consequences of siting new or expanded energy facilities in the

coastal zone.

The planning grants authorized by section 308 (c) are a part of the

a2!w $1.2 billion Coastal Energy Impact Program (CEIP). The CEIP makes

available to state and local governments a total of $1.2 billion dollars

to be distributed in the form of loans, grants and bond guarantees from

two separate but interlocking sources. Although its creation was in

large part a response to state and local concerns over potential on--

shore impacts caused by accelerated OCS oil and gas develoExnent, por-

tions of the CETP funds are also available to plan for the effects gen-

erated by other forms of energy development, including nuclear po@%-er

stations, uranium enrichment facilities, and nuclear fuel reprocessing

plants.

From a somewhat complicated system, states can seek to obtain money

from an $800 million Coastal Energy Impact Fund (CEIF) and/or a $400

million pool of mney allocated as "formula grants." As depicted in

accompanying Figure 1, the source of funding assistance is detennined.

by what type of energy related activity precipitates the need for assist-

ance and to what purpose the assistance will be applied. under the terms
of the CEIP interim-final regulations, 70 state or local gove=nents can

Figure 1.

Coastal Energy Impact Program: Primary and Secondary Funding Sources
L@@se Primary Source Secondary Source

Planning CEIF: 308(c) Formula grants:
Planning grants 308(b)(4)(B)
for all energy facilities for OCS energy activity planning grants
impacting coastal zone 2

Public CEIF: 308 (d) (1) Formula grants:
facilities for coastal-d@pendent and 308(d)(2) for OCS energy activity 308 (b) (4) (B)
and services energy activity 3 loans and public facilities
guarantees and services
grants

Formula grants:
308(b (4)(A)
bona retirement:
Inability to CEIF: 308(d)(3)(A) for
meet loan or for coastal-dependent through (d)(3)(C) coastal-deven-dent and, if insufficient
guarantee energy activity refinancing or energy activity
obligations modification CEIF: 308(d)(3)(D)
of terms repayment
grants
Unavoidable Formula grants: CEIF: 308 (d) (4)
environmental/ for coastal-dependent 308(b)(4)(C) for coastal-dependent environmental/
recreational energy activity environmental/ energy activity recreational
losses recreational grants
grants
1. Adopted from 15 C.F.R. Part 931,
2, Any facility which plays a part in the energy process, including nuclear facilities, whether or not located
,@nt

in the coastal zone, which has a significant affect on the coastal zone,
3. Includes only OCS energy activity and coastal-dependent activities irvolving liquified natural gas, oil,
natural gas, or coal.

receive assistance relating to nuclear facilities under the first option

in, Figi-ire 1 (planning for energy facilities impacting the coastal zone)

Each of the other three options are restricted to coastal energy "acti-

vities," which are defined by section 304(4) of the amended CMA to in-

clude only fossil fuel energy related activities.

The amount of planning and assistance available to each state under

section 308(c) is determined annually by OC2M according to a list of pro-

posed new or expanding energy facilities (including nuclear facilities)

in each state and the application of a standardized planning-need factor,

which estirrates the amount of planning necessary for each facility based

on the amount of employment generated, potential environmental irrpacts,
and safety considerations. 71 It also should be noted that a proposed

energy facility, such as a nuclear power station, need not be located in

the coastal zone in order for the coastal state to qualify for a study

and planning grant. Section 308(c) requires only that the new or ex-

panded energy facility have, or be likely to have, a significant effect

on the coastal zone.

OC&4's regulations specifically allow section 308(c) grants to be
used for inter alia: 72

1) conducting analyses required for state or
local regulatory decision related to energy
facilities;
2) conducting risk management studies, hazard
analyses, emergency contingency planning
and coordination studies, and assessments
of mitigating measures for maintaining or
improving public safety threatened by the
energy facilities; and
3) devising strategies for public purchase of
land or establishment of other enforceable
land use controls for land upon or near
which energy develcpment is to take place.

Financial assistance under the CEIP is tied to the requirements

of the CZMA by virtue of section 308)(g)'s eligibility requirements.

Eligible states are only those:

1) with an approved management program under
section 306;
2) receiving a development grant under section
305; or
3) which have been judged by the Secretary to
be making satisfactory progress towards the
development of a namqement program cona-
sistent with the policies of the CZMA.

Because most of the financial assistance made available by the CETP

concerns ccmpensating coastal states for the costs involved in siting

fossil fuel and related facilities, such as-those acccopanying OCS de-

velcpment, one of the principal effects of the CEIP, therefore, appears

to be encouraging the states to site these facilities in their coastal

zones. On the other hand, incentives for states to site nuclear facili-

ties'are less apparent, since federal assistance is, limited to planning

for their consequences. Still, by encouraging the states to set aside

areas for non-nuclear energy development, the CEIP ray encourage the

states to site nuclear facilities in these areas, if nuclear facilities

are determined to be canpatible with other energy@related activities.

Thus, the CEIP way in effect foster the development of "energy centers."

One aspect of the CEIP which my be of interest to the NRC concerns

the manner in which OCZM plans to meet the -requirements of NEPA in dis-

persing funds to the states. The CEIP regulations state that OCZM an-

ticipates performing EIS's only with regard to forms of assistance which

are not available in connection with the siting of nuclear facilities.

That is, EIS's will probably not be, prepared with- respect to the dis-

persal of planning funds. The regulations do note, howevere that the.

G G

agency "will monitor the uses of assistance [for, e.g., the planning of
proposed nuclear facilities] with the requirements of NEPA in mind. ,73

In this regard, OC2M will require the entity receiving the planning

funds to provide "initial data and information on environmental impacts"
of prcposed projects, according to guidelines to be developed by OC2M. 74

The IR@C way wish to encourage OC714, in developing these guidelines, to

require information that will facilitate the Ccunission's review of site

suitability under NEPA.

The second major addition to the CZMA resulting fram, the 1976 Amend-

ments concerns section 305(b)(8)ls requirement that state programs develop:

a planning process for energy facilities likely
to be located in, or which may significantly af
fect, the coast-al zone, including but not limited
to, a process for anticipating and managing im:
pacts fran such facilities. (emphasis added)

Under section 304(5)ls operational definition of "energy facilities" all

facilities involved in the nuclear energy fuel cycle UX)uld be subject to

the provisions of this planning process, including mining and milling,

conversion, reprocessing, enrichment, and power station facilities.

Moreover, the planning process would embrace not only nuclear facilities

located within a state's coastal zone, but also those which would "sig@

nificantly affect" it.

This planning element, along with two other newly added planning
processes, concerning beach access 75 and shoreline erosion, 76 must be
incorporated into all state programs approved after October 1, 1978. 77

States may receive federal approval before October 1, 1978, without

these additional planning elements, provided they incorporate these
requirements by that date. 78

.The newly required energy facility siting process is related to the

adequate consideration of "national interest" facilities requirement,

discussed above, since it may ensure that the latter requirement is

fulfilled, at least with respect to energy facilities. It is also tied

to the CEIP's planning funds for energy facilities, since the proposed

implementing regulations state that CEIP planning funds may be used to

apply the energy planning process to proposed energy facilities that
qualify for CEIP planning assistance. 79

OCZM's proposed regulations also state that this planning process
should include: 80

(1) A means of identifying energy facilities
which are likely to be located in or which ray
significantly affect the coastal zone;
(2) A procedure for assessing impacts for such
facilities;
(3) Development of State policies and other
techniques for the management of energy facility
impacts; and
(4) A mechanism for coordination and/or coop-
erative working arrangements, as appropriate,
betv@en the State coastal management agency-
and other relevant State, Federal, and local
agencies involved in energy facility, planning-

These provisions represent minimal requirements for states. that are pro-

cess oriented. Thus, states are given considerable lattitude within,

which to develop energy facility requirements. Since they reinforced

the state Cal role in energy facility decision-vaking, the effect of

the energy planning provisions will most.likely be expressed in terms

that restrict facility siting options to areas that state CZM program

have determined are suitable and appropriate for energy development.

This, in turn, should reflect thepattern and direction of development

desired by the state, based on existing and projected environmental,

6 on

SOCiaLl, and economic conditions.

Perhaps the most significant aspect of this planning provision in

terms of NFVs current efforts to increase efficiency in the siting of

nuclear facilities involves the third and fourth elements listed above.

The development of statewide policies and coordinative mechanism should

serve to increase the flow of information between federal agencies and

the states, between the states and localities, and among different states.

In this regard, the implementing regulations call upon the states to es-

tablish cooperative arrangements that will increase the information ex-

change between state and federal energy agencies, interstate planning

entities (discussed below), energy industries, and state utility commis-
sion.s. 81

The third major change resulting from the enactment of the 1976

Amendments involves funds authorized by section 309 to encourage coastal

states to address coastal zone management issues which are interstate

in nature in a cooperative manner. A total of $5 million per year in

interstate grants is available to approved interstate entities. These

entities include executive agencies established by interstate compacts

or agreements, temporary entities created by two or more states, or

existing regional interstate entities designated by the affected states.

Interstate grants are to be utilized only for purposes consistent
with sections 305 and 306 of the Act. More specifically, the. regular

tions proposed to implement section 309 require that the- grants be. used
for -the following purposes: 82

1) the coordination of state coastal planning,
policies and programs with respect to areas
in or affecting the coastal zone;

2) the study, planning and/or implementation
of unified coastal policies in such areas;
and/or
3) the establishment of effective federal-
state coordinarave mechanisms to deal with
mutual problems with respect to marine and
coastal areas.

Interstate grants may provide up to 90% of the cost of these activities.

In light of the fact that section 306(c)(8) requires that state

programs., give "[adequate] consideration to any applicable interstate

energy plan or program," if interstate grants are employed to develop

interstate energy plans, these plans could serve an important role in

assuring that adequate consideration is given to the siting of "national

interest" energy facilities. Interstate energy plans also have an inpor-

tant relationship to the newly required state energy facility siting

Frocess, since OCZ111s regulations explicitly require that the states take

interstate plans into consideration uben formulating coordinative mech-

anisms between their C714 agencies and other pertinent federal, state,
and local agencies involved in energy facility planning. 83

G. Potential Mechanisms to Coordinate@Coastal Zone Planning
with Airf Water'. and (@prdhensi:Ve Planning

The CZMA contains express requirEments which caftpeel state C2M pro-

grams to coordinate their planning efforts with other ongoing planning

processes. Efforts to integrate the various plans are in-portantelements

in increa ing efficiency in the siting of energy facilities because they

can help to eliminate duplicative administration in the implementation

of the plans and thus serve to increase certainty in sit-ing determinations.

Efforts to integrate and rationalize the various planning activities

described in this report have been initiated by the various federal agen-

cies charged with administering the program and have resulted in a num-

ber of interagency agreements. 84 However, since all of the planning

processes will be implemented by states or localities, and since most

of the plans are still in the develcFment stage, it is not yet possible

to assess how effectively these coordinative nechAnisms will operate in

practice. Still, in the context of C714 planning, it is useful to under-

stand the obligations placed upon the states by the C&AA and the inple-

wenting regulations to integrate their CZM planning efforts with. other

related planning activities. Such an understanding should allow NRC, in

reviewing CZM plans submitted for federal approval, to assess how well

the states have met their obligations. If the states have not provided

effective mechanisms to coordinate other related planning activities,

NRC should encourage OC2M to ensure that they do so. This will not only

serve the purpose of increasing efficiency in. the siting of nuclear fa-

cilities in the coastal zone, but also will help to fulfill the CZMA's,

national policy of "LeIncouraging cooperation amng various state and

regional entities, including cooperative procedures and joint action,
particularly regarding enviromental programs." 85

There are two basic statutory directives of the CZMA which involve

integrating planning efforts. The first., already meritioned in the dis-

cussion on federal consistency, concerns section 307(f)ls requirement

that the "requirements" of the Clean Air Act and the Federal Water Pollu-

tion Control Act be incorporated into all CZM plans. In interpreting

this provision, OCZM's regulations explicitly require coordination of
C2M plans with air and water quality plans. 86

The basic purpose of this requirement is to
ensure that the nanagement program does not
conflict with the national and Stat_e_@E=cies,,
pIaHsand regulations mandated E@@ Federal
Water Pollution Control Art, as anended, and

the Clean Air Act as amended. The policies
and standards adopted pursuant to these Acts
should be considered essential baselines
against which the overall management program
is developed. This is a specific statutory
requixement that reflects the overall coastal
zone management objective of unified state
management of envirornental laws, Fegulations
and applicable standards. To this end, manage-
ment programs should provide for continuing
coordination and cooperation witli'@airand water
programs during subsequent administration of
the approved management program. (eaphasis
added)

In view of the strong language employed by its regulations, OCZM should

not approve a state CZM plan wtdch is not effectively coordinated with

the state's air and water quality planning.

The second statutory mandate involves section 306(c)(2)(A)ls re-

quirement that before a state's CZM program can receive federal approval,

it must demonstrate that it has "coordinated its program with local,

areawide, and interstate plans applicable to areas within tI-P- coastal

zone existing on January 1 of the year in wbich-the state's.management

program is submitted" for federal approval. This directive %rill embrace

not only state air and water quality plans, but also state and local

ccmprehensive plans developed under the "701" program. In interpreting
this requirement OC2MIs regulations state that: 87

The objective of this provision is to seek and
achieve as complete coordination and intergra-
tion as possible at the State level of. all al
State and Federal programs that lead to the
setting of policy or the developmmt of public
and private works' facilities or programs in
the StateIs defined coastal zone. (emphasis
added)

Among the programs with which the. CM plans must "seek and achieve!' this
coordination and integration are: 88

State programs dealing with land use controls
in the coastal zone or other regulatory, li-
censing, permit or operating programs in the
coastal zone including, but not limited to,
activities such as mineral extracting, power
plant siting and harbor construction.
(emphasis added)

OCZM1s regulations also specifically note the importance of establishing

coordinative planning mechanisms regarding those portions of the CZM plan
that deal with power transmission lines. 89

While the regulations define the local, areawide, and regional plans

to which the statutory provision applies as those "officially adopted" or

11ccmwnly recognized as a guide for action, 11 they do draw a distinction

regarding the amount of deference to be given to local plans, such as

those which might be developed under the "701" comprehensive planning

90
Program:

... the State management prograin must be coordi-
nated with existing local, areawide and inter-
state plans-applicable to portions-of the-coastal
zone. It should be noted that this section does
not -do@d compliax@ce of .the State prograM with
local'plans... (emphasis added)

That local plans stand on a scrnewhat different footing than areawide or

interstate plans is further evidenced by the fact that section 306(c)(B)

of the CMvlk allows the state CZM agency to effectively override local

zoning authority, so long as the local government is provided notice

and an opportunity to cmment on the state's action in advance.

It should be noted that although the CZMA and the implementing

regulations are replete with provisions requiring coordination of C2M

plans with other planning activities, unlike in the case of federal

activities, consistency is not required. OC7141s regulations define
coordination as: 91

[implying] a high degree of cooperation and
consultation arnong agencies, as well as a mutual
willingness on the part of the participants to
accomTiodate their activities to the needs of
the others in order to carry out the public
interest.

It must be noted that there is a difference between requiring a "high

degree of cooperation and consultation" and requiring consistency. Even

with respect to air and water quality planning, it is not completely

clear that consistency is required, since it is uncertain whether the

11requireTtentsil
entirety of air and water quality plans fall within the

that must be incorporated into a CZM plan. It does appear, though, that

these environmental plans are to be accorded a higher degree of deference

by Czm plans than other planning efforts, since the regulations explicitly
state that C714 plans "must not conflict" w-ith.aix and water quality plans. 92

Thus, while CZM plans certainly offer substantial opportunities to

develop a framework in which to foster nore cohesive planning, their suc-

cess in doing so will largely depend upon the efforts of the individual

states. The state of Washington, for example, the only state which has

received federal approval for its CZM program, has established machanisms

to coordinate various planning efforts within the state through its En-
vironmental Coordination Procedures Act. 93 These mechanisms and those

developed by other state CM programs, may serve as an effective means

to coordinate diverse planning processes in areas affecting the coastal

zone. By doing so, they could go a long way toward increasing efficiency

in the siting of energy facilities, including nuclear facilities.

The NBC has numerous opportunities to review state C2M efforts to

coordinate planning functions whicli impact on the siting of nuclear

facilities. Not only must the-states provide NRC with- an opportunity

7@,

to "fully participate" in the development of their programs, but before

they can receive federal approval, NIRCIs views must be accorded "ade-

quate consideration" by OCZM. In view of the fact that federally ap-

provel CZM programs, through the federal consistency provisions, will

exert substantial in-pact upon NRCIs licensing and permitting functions,

the Cmutission should not take its opportunities to review and cowment

on state programs lightly. In this regard, OC2MIs NEPA procedures afford

an excellent opportunity for NRC to assess proposed C7M programs an terms

of their effectiveness in achieving coordinated energy faci-lity siting

plans and procedures. NFC should, therefore, carefully scrutinize tle

EIS's prepared by OC2M, as well as the proposed state CZM plans, to ensure

that the coordinative nkandates of the CZMA and the implementing regulations

have 'been met and satisfied.

This may be particularly hnportant because the contents of C2M pro-

grams will have a large bearing on the options which may be available to
applicants under NRCIs still developing procedures for early site review. 94

NRC should investigate the relationship between CZM energy facilities

planning and the early site review process to determine whether, in fact,

the latter may result in duplicative administrative effort.

7 S

Ca4

Footnotes

1. P.L. 92-583, 16 U.S.C. �� 1451-64 [hereinafter cited as CZMA
S 1. The 1976 Amendments were enacted by virtue of P.L. 94-
3767 In addition, minor amendments were made in 1974 through
P.L. 93-612.

2. For a review of the events leading to the passage of the
CZMA, see Senate ComTdttee on Commerce, Legislative History
of the Coastal Zone Management Act, CaTtmittee Print, 94th
Cong., 22-d Sess. (Dec. 1976), pp. 1-8.

3. Senate Report No. 92-753 (April 19, 1972), pp. 2-3. [herein-
after cited as Senate Report].

4. CZMA, 303(b).

5. Id., 305.

6. Id., 306.

7. Senate Report, p.4.

8. Id.

9. Id., pp. 5-6.

10. CZMA 9 306 (e) (1) .

11. See Arm H. Berger, "Methods of Control of Land and Water Uses
in The Coastal Zone" (Office of Coastal Zone Management, 1975).

12. See OCZM's development grant regulations, promulgated at 15
C.F.R. S 920,38 Fed. Reg. 33044 (Nov. 29, 1973) and 41 Fed.
Reg. 53418 (Dec. 6, 1976); and the administrative grant
regulations promulgated at 15 C.F.R. �923 (40 Fed. Reg. 1683,
Jan. 9, 1975).

13. CZMA, S 305 (b) (1) - (9).

14. Id. , S 306 (c) (1) .

15. Id., S 306(c)(8).

16. Id. , S 306 (e) (2) .

17., Id., � 308. See also proposed implementing regulations, 15
C.F.R. � 931, 41 Fed. Reg. 46724, (Oct. 22, 1976).

CzM 1

18. Id., S 309. See also proposed implementing regulations, 15
C.F.R. S 932, 41 Fed. Reg. 55786 (Dec. 22, 1976).

19. For a detailed analysis of the federal consistency provisions,
see M. Blum and J. Noble, "The Prcmise of Federal Consistency
Under Section 307 of the Coastal Zone Management Act," 6
Environmental Law Reporter 50047 (1976).

20. See 15 C.F.R. S 921, 41 Fed. Reg. 42878 (Sept. 28, 1976).

21. Senate Report, p. 9.

22. 15 C.F.R. 921.6(a), 41 Fed. Reg. 42888 (Sept. 28, 1976).

23. Department of Ccmrberce, National Oceanic and Atmospheric
Administration, State of California CZM Program, Draft Environ-
mental Impact Statement, p. 64.

24. Department of Commerce, National Oceanic and Atmospheric
Administration, State of Oregon CZM Program, Draft Environ-
mental Impact Statement, p. 56.

25. 15 C.F.R. � 921.6(d), 41 Fed. Reg. 42888 (Sept. 28, 1976).

26. Id., � 921.6(e), 41 Fed. Reg. 42889.

27. Id., S 921.6(p), 41 Fed. Reg. 42885.

28. Id., 9 921.1(g).

29. CZMA, S 307(c)(1). See also proposed regulations at 95 C.F.R.
921.5, 41 Fed. Reg. 42887 (Sept. 28, 1976).

30. Id., S 307(c)(2). The proposed regulations for this provision
are incorporated into those implementing � 307(c)(1).

31. Id., S 307(d). See also proposed regulations at 15 C.F.R. S
921.7, 41 Fed. Reg. 42890 (Sept. 28, 1976).

32. 42 U.S.C. S 5801-91.

33. See Introduction to Federal Consistency Regulations, � 2(B)(ii)
(b)(2), 41 Fed. Reg. 42883 (Sept. 28, 1976).

34. Id. , 2 (B) (iv) .

35. CZMA, 304(h).

CZM 2

36. Office of Legal Counsel, U.S. Department of Justice Opinion
on the Excluded Federal Lands Provision of Section 304(a) of
the Coastal Zone Management Act (Aug. 10, 1976).

37. 15 C.F.R. S 921.6(e), 41 Fed. Reg.-42889 (Sept. 28, 1976).

38. Id., � 925.3(a), 40 Fed. Reg. 8546 (Feb. 28, 1975).

39. -Id., � 923.31(b)(2)(ii)(a), 40 Fed. Reg. 1692 (Jan. 9, 1975).

40. Id., S 925.5, 41 Fed. Reg. 8547 (Feb. 28, 1975).

41. Id., S 925.3(b).

42. Id., � 925.4. See also 923.3.(b)(2), 40 Fed.--PjQg,,_ 1692 (Jan.
@-, 1975).

43. Id., � 925.5(d).

44. This provision was formerly part of 307(b) until amended by the
Coastal Zone Management Act Amendments of 1976 (P.L. 94-370).

45. 15 C.F.R. � 925.6, 40 Fed. Reg. 8547 (Feb. 28, 1975).

46. Id., � 925.6(e).

47. See 15 C.F.R. S 921.5, 41 Fed. Reg. 42887 (Sept. 28, 1976).

48. 15 C.F.R. S 923.15, 40 Fed. Reg. 1688 (Jan. 9, 1975).

49. Id., S 923.15(b).

50. Id.

51. Id.

52. Id.

53. Id., S 923.2, 40 Fed. Reg. 1684 (Jan. 9, 1975).

54. Id., � 923.17(b), 40 Fed. Reg. 1689 (Jan. 9, 1975)

55. Id.

56. Id., � 920.31, 38 Fed. Reg. 33049 (Nov. 29, 1973).

57. Id., � 920.32.

CZM 3

58. Id., 920.31(c).

59. CZMA, 304(a).

60. - 15 C.F.R. S 923.11(b)(1), 40 Fed. Reg. 1686 (Jan. 9, 1975).
See also 15 C.F.R. � 920.11, 38 Fed. Reg. 33045 (Nov. 29, 1973).

61. Id., 923.11(b)(3).

62. Id., 923.12.

63. 15 C.F.R. S 920.12, 38 Fed. Reg. 33046 (Nov. 29, 1973).

64. Id., � 920.13, 38 Fed. Reg. 33046.(Nov. 29, 1973).

65. Id., � 923.13, 40 Fed. Reg. 1687 (Jan. 9, 1975).

66. Id., � 923.14, 40 Fed. Reg. 1688 (Jan. 9, 1975). See also
1-5 C.F.R. � 920.15, 38 Fed. Reg. 33047 (Nov. 29, 1973).

67. Id., � 923.16, 40 Fed. Reg. 1689 (Jan. 9, 1915).

68. California Coastal Zone Conservation Commission, California
Coastal Plan (Dec., 1975) p. 113.

69. P.L. 94-370, 90 Stat. 1013 (1976). Citations to particular
sections added or revised by the 1976 AnvxrInents are to the
CZMA as amended.

70. 15 C.F.R. � 931.19, 42 Fed. Reg. 1175 (Jan. 5, 1977).

71 15 C.F.R. � 931.36(b), 42 Fed. Reg. 1177 (Jan. 5, 1977).

72. Id., � 931.33.

73. Id., 931.34, 42 Fed. Reg. 1186 (Jan. 5, 1977).

74. Id.

75. CZMA,, S 305(b)(7). See also proposed implementing regulations
at 15 C.F.R. � 920.17, 41 Fed. Reg. 53420 (Dec. 6, 1976); and
15 C.F.R. � 923.18, 41 Fed. Reg. 57006 (Dec. 30, 1976).

76. CZMA, � 305(b)(9). See also proposed implementing regulations
at 15 C.F.R. � 920.19, 41 Fed. Reg. 53422 (Dec. 6, 1976); and
15 C.F.R. � 923.20, 41 Fed. Reg. 57007 (Dec. 20, 1976).

77. CZMA, � 305(b).

CZM 4

78. 15 C.F.R. S 920.60(b), 41 Fed. Reg. 53424 (Dec. 5, 1976).

79. Id., S 920.18(b)(3), 41 Fed. Reg. 53422 (Dec. 5, 1976).

80. Id., 5 920.18(a). See also 15 C.F.R. S 923.19, 41 Fed. Reg.
57006 (Dec. 20, 1976).

81. Id., S 920.18(d), 41 Fed. Reg. 53422 (Dec. 6, 1976).

8.2. Id., S 932.3(a), 41 Fed. Reg. 55788 (Dec. 22, 1976).

83. Id., S 920.18(b)(4), 41 Fed. Reg. 53422 (Dec. 6, 1976).

84. See, e.g., Joint Agreement for Coordination of Planning
Between the office of Community Planning and Development.
(HUD) and the Office of Coastal Zone Management (February 19,
1975); Interagency Agreement Between the Department of Housing
and Urban Development and the Environmental Protection Agency
(March 24, 1975); OCZM/EPA Water Programs Coordination Prin-
ciples (August 26, 1975).

85. CZNA, S 303(d).

86. 15 C.F.R. S 923.54(b)(1) [formerly 9 923.44(b)(1); redesigna-
ted by virtue of 41 Fed. Reg. 57009 (Dec. 30, 1976)].

87. Id., S 920.55(f) [formerly � 920.45(f); redesignated by virtue
@Tf_ 41 Fed. Reg. 53420 (Dec. 6, 1976)].

88. Id., � @20.55(f) (5).

89. Id., S 923.42(b), 41 Fed. Reg. 57008 (Dec. 30, 1976).

90. Id.

91. Id.

92. See text accompanying note 86, supra.

93. See State of Washington, Department of Ecology, Washington
State Coastal Zone Management Program (Jan., 1976) pp. 47-50.

94. See proposed early site review regulations, 10 C.F.R. �� 2, 50,
41 Fed. Reg. 16835 (April 22, 1976).

CZM 5

III. Federal Water Pollution Control Act

A. Introduction

The passage of the Federal Water Pollution Control Act Amend-
1
nents of 1972 (hereafter "Amendments") marked a turning point in the

approach toward water pollution control in -the United States. Prior

to these Arrendments, the Act focused on ambient water quality -

permissible discharges were calculated using the estimated assimila-

tive capacity of the receiving body of water. Unfortunately, vio-

lations were hard to pinpoint and enforcement was slow and cumber-

som. The 1972 Amex0ments, however, rewrote all existing federal
2
water pollution control laws. Not only did the Amexi3ments extend

federal responsibility to all "navigable waters", but they switched

the focus from.water quality and assimilative capacity to more

easily enforceable discharge requirements.

Instead of allowing certain segments of a river or stream to

remain polluted, the ATmndments were established "to restore and

maintain the chemical, physical, and biological integrity of the
3
nation's waters." The prohibition of pollution is emphasized by

the Senate Report on the bill which states:

This legislation would clearly establish that
no one has the right to pollute--that pollution
continues because of technological limits, not
because of any inherent right to use the nation's
water-ways for the purpose of disposing the wastes. 4/

The Amendmnts established two national goals:
1. (T)hat discharges of pollutants5into navigable
water 6/ would be eliminated by 1985, 7/ and

2. (T)hat-whenever attainable, an interim goal of water
quality which provides for the protection and pro-
pagation of fish, shellfish, and wildlife and
provides for recreation in or on water be achieved
by July 1, 1983. 8/

To meet these goals the Amendments require industrial discharges

to achieve an initial set of effluent limitations by 1977, and more
9
stringent limitations by 1983.

The purposes of the Amendments may be summarized as follows;

(1) to regulate discharges of pollutants from "point
sources;1I

(2) to regulate the discharge of vessel sewage;

(3) to regulate oil spills and hazardous substances;

(4) to regulate dredge and fill activities in the waters
of the United States;

(5) to require states to have a continuous planning pro-
cess for all water pollution-related activities, both
point and non-point sources; and

(6) to financially assist states in waste water manage-
ment planning and the construction of waste facilities.

The Amendments approach water quality management from two perspectives:

regulation and planning., The regulatory program established by the

law basically revolves around the issuance of permits under the

National Pollutant Discharge Elimination System (NPDES) permit pro-

gram (� 402). Those states that meet requirements set by the Environ-

mental Protection Agency (EPA) can administer the NPDES program,

issuing permits to dischargers consistent with guidelines established

b,
y EPA for major categories of discharges, and subject to EPA review.

The second major focus of the 1972 Amendments is on planning.

The Amendments specify that the states should set up a continuing

planning process to develop a management program and procedures to

carry out the water quality planning and implementation requirements

of the Act. The continuing planning process is the state's manage-

ment approach for organizing the activities undertaken to fulfill

the*Act's requirements, and for coordinating those activities with

other state and local policies and programs.

The continuing planning process can itself be divided into a

two-pronged approach: a continuing water quality planning process

under Section 303(a) and a continuing area-wide waste treatment

management planning process under Section 208. The Section 303 water

quality management plans, dealing primarily with the effluent limi-

tations necessary for point sources to meet established water quality

standards, were to have been submitted to EPA by July 1, 1975, un-

less an extension of up to one year was granted. The Section 208

planning process, which calls for a more comprehensive water manage-

ment analysis, is just now approaching the implementation stage.

B. The Permit Process

The regulatory program authorized by the Amendments has a

direct and major impact on all nuclear facilities discharging

11pollutants" into navigable waters, since the discharge of any

pollutant is unlawful unless in compliance with the requirements
10
under this statute. Moreover, the broad definition of "pollutant"

in Section 502(6) includes heat, bringing thermal discharges frcxn

nuclear power stations within the purview of the Amendments

The actual regulation of discharges is based upon the

establishment of water quality standards and the implementation of

these standards through the permit program mandated by Section 402.

Water quality standards are founded upon effluent limitations-

restrictions and conditions placed upon the discharge of pollutants.

Parsuant to Section 301(b), the effluent limitations limiting the

maximum amounts of specific pollutants thatmay be discharged into

waterways is based upon the availability of control technology.

Specific limitations are applied to each category of industrial

discharges and to municipal wastewater treatment plants. The first

set of limitations on industrial discharges, requiring the "best

practicable treatment control technology currently available," must
12
be met by July 1, 1977. By July 1, 1983, more stringent effluent

limitations, requiring "best available technology economically
13
achievable, " must be mt.

Effluent limitations based upon the 1977 and 1983 levels of

technology provide the basic tool in regulating discharges. But in

a number of situations effluent limitations will be stricter than

the 1977 and 1983 standards. Under Section 302(a) the Administrator

of EPA has the authority to establish more stringent limitations if

the 1983 standards interfere with the achievement of water quality

an a specific portion of a navigable water. In addition, Section

303(d) sets out.a procedure for states to identify those waters

where the 1977 and 1983 effluent limitation criteria do not achieve

water quality standards for that stretch of water. once identified,

those waters can, upon approval by the Administrator of EPA, be sub-

ject to maximum daily load allocations.

"New sources" that is, those sources upon which construction

began after EPA promulgated "standards of performance" under Section

306, are subject to. more stringent requirements than those imposed by

the 1977 and 1983 standards. These stricter requirements--the

standards of performance--are intended to reflect the best avail-

able demonstrated control technology, including where practicable,
14
a standard permitting no discharge of pollutants.

Stricter than national standards can also be imposed by-the

states, political subdivisions thereof, or interstate agencies,

since all three are not precluded from adopting any effluent

limitation or other restriction more stringent than those required
15
under the Act. on the other hand, however, Section 301(c) pro-

vides that in some circumstances the best available technology

criteria (1983 standard) can be lifted as long as water quality does

not suffer.

Effluent limitations are implemented through the National

Pollutant Discharge Elimination System (NPDES) permit program

authorized by Section 402 of the 1972 AiTendments. Under this law

the discharge of any pollutant is unlawful unless a permit that

complies with all appropriate Sections of the Amendments has been

no
0

obtained. Each source of pollution must be regulated by a permit,

although several sources may be included in one permit (e.g., several

pipes emanating from the same plant). The permit,valid for up to five

years, specifies the rules under which the discharger can continue to

discharge. Each pen-nit contains effluent limitations specific to

that source, as well as a legally enforceable Schedule of Compliance.

The purpose of the Schedule of Compliance is to ensure that the dis-

charger meets the permit requirements in a timely fashion.

Section 402 of the amended Act envisions the NPDES Permit

Program being administered by the Administrator of EPA unless a

State meets the requirements of Section 402(b) for its own program.

Tb gain approval the State must convince the Administrator that its

program will implement all the requirements set forth in the Act,

and that the State has adequate authority to enforce these require-

ments. Even where States have assumed the responsibility for the

permit program, however, the approval for that program can be with-

drawn if the Administrator determines, after a public hearing, that

the State is not fulfilling the requirements of the Act.

The Environmental Protection Agency, in its transition papers

submitted to the Carter Administration, described the status of

the NPDES Permit Program as follows:

The NPDES Permit Program has identified approximtely
65,000 dischargers (22,000 municipal and 43,000 in-
dustrial) and has issued permits to over 50,000 of
those dischargers (19,000 municipal and 31,000 in-
dustrial). Of those dischargers, about 9,000 have
been identified as major dischargers (4,600 municipal
and 4,400 industrial), and all but a few of them have
been issued permits. A recent survey projected com-

pliance with BPT by the deadline of July 1, 1977,
by as many as 90% of the major industries.
CaTpliance by major municipalities with secondary
treatment is highly dependent upon resolution of
funding problems. Authority to issue NPDES permits
has been given to 28 States. Many of the major
industrial and heavily populated States are now man-
aging the NPDES program. Several other States either
have cooperative NPDES agreements or are anticipated
to assume the NPDES program in the near future. Ap-
proximately half of the issued permits are in NPDES
States. 16/

A nuclear facility that discharges into a navigable water-

way will, like any other discharger, be required to obtain an NPDES

permit. Following the issuance of that permit the facility will be

required to follow the rules and coupliance schedule specified in

the NPDES permit. However, the permit process with respect to

nuclear facilities, and especially nuclear units, is modified

by two additional sections of the 1972 Amendments:

(1) Section 316, which establishes special procedures
to deal with thermal discharges; and

(2) Section 401, which requires all applicants for
federal licenses or permits to show state (or EPA)
certification that any discharges fran the activity
will not adversely affect water quality. These
two sections are discussed in more detail below.

C. Section 316 - Thermal Discharges

Section 316(a) provides a procedure by which thermal dis-

chargers can be granted a variance from the effluent limitations

of Section 301 or the performance standards of Section 306.

The Administrator of EPA (or the State, if appropriate) can suspend

the applicable standards if the discharger persuades him that the

proposed standards are more stringent than necessary to guarantee

"the protection and propagation of a balanced, indigenous popu-

lation of shellfish, fish, and wildlife in and on that body of
17
water." The burden of proof is on the owner or operator of the

source of thermal discharge. If the Administrator is persuaded,

he can impose a lesser limitation that will still assure the

"balanced indigenous population" standard. The regulations govern-

ing this procedure are found at 40 C.F.R. S 122.

Section 316(b) of the Amendments stipulates that any standard

for point source discharges required by Section 301 or 306 must

require "that the location, design, construction, and capacity

of cooling water intake structures reflect the best technology
18
available for minimizing adverse environmental impact." EPA's

procedure for implementing this requirement is to ask thermal

dischargers applying for a 402 permit to conduct a detailed study

and submit a report on the impact of the cooling water intake on

the environment. Based on this report, and its own understanding

of the available technology, EPA will determine what design features

are required for the cooling water intake structures. Depending upon

the changing state of technology and conditions in a particular

body of water, an additional study might be required when a 402

permit comes up for reissuance, and an upgrading of a cooling water

intake structures could be necessary.

Section 316(c) provides for a 10 year moratorium on stricter

standards for certain thermal discharging point sources modified

Q` 3

after the enactment of the Amendments. Any such modified thermal

point source which meets effluent limitations that assure a balanced,

indigenous population of fish, shellfish and wildlife in the dis-

charge area, will not be subject to any more stringent effluent

limitations on its thermal discharge for 10 years.

This section, in applying to point sources modified after

the enactment of the Amendments, would seem to subject any existing

thermal discharger (such as an operating nuclear facility) to no

more than one upgrading of standards in any 10 year period. How-

ever, new facilities appear subject to more stringent standards at

any time after beginning initial operation. Only after scme modi-

fication of the facility (e.g., to meet revised effluent limitations),

would the discharger profit from the Section 316(c) grace period.

It should be noted that the special treatment given thermal

discharges in Section 306 is founded upon an assurance of the pro-

tection and propagation of a balanced and indigenous ecological

community. None of the variances from other standards can take

effect absent an assurance of this continued protection.

D. Section 401 - Certification

Section 401 of the 1972 Amendments establishes a procedure to

guarantee that activities requiring a federal license or permit are

assured, at the earliest possible mcment, of compliance with applic-

able state and federal water quality standards. Before any applicant

can be granted a federal license or permit to conduct an activity

which may result in a discharge into navigable waters, the applicant

must receive certification from the appropriate certifying agency

that the discharge will comply with the relevant provisions of
19
Sections 301, 302, 306 and 307 of the 1972 Amendments.

The appropriate certifying agency in these matters is that

person or agency designated by a state to certify compliance with

applicable water quality standards. where an interstate agency7has

exclusive authority to certify, it is the appropriate agency. And

where water quality standards have been promulgated by the Admin-

istrator of EPA under Section 303(b) of the Amendments, or where

no state or interstate agency has authority to certify, the
20
Administrator shall be the certifying agency-

No license or permit can be granted by the federal agency

until certification is provided. The denial of certification by

the. certifying agency prevents the issuance of a permit or license.

However, where the certifying agency does not act on a request for
21
certification within a reasonable time, the certification require-
22
ments are deemed to be waived. In those instances where no standards

have been promulgated under Sections 301, 302, 306 or 307, the agency

shall so certify and a license will be granted.

The certifications prepared pursuant to Section 401 are not

simple statements of compliance, but must include any effluent

limitations and monitoring or other requirements necessary to assure

that the applicant will comply with applicable federal or state

water quality standards. These conditions upon which certification

is granted become conditions upon the federal license or permit

itself, and are subject to all the carpliance requirements of
23
Section 401.

The Nuclear Regulatory Commission could not grant a license

to construct a nuclear generating facility, for example, until that

applicant received a Section 401 certification fran the proper

agency that the facility's discharges met all applicable water

quality standards. If the certifying agency denied certification,

the project could not proceed. If certification was granted or

waived, NRC could grant its license, but any conditions placed upon

certification would have to be included as conditions to the NRC

license.

In addition to the certification requirements of Section 401(a)

(1) that must precede the granting of certain federal permits and

licenses, there are three additional conditions under which states

can review the ompliance of federally licensed or permitted acti-

vities with applicable water quality standards. Section 401(a)(2)

provides an opportunity for any other state wtxDse waters are affected

by discharges certified under Section 401(a)(1) to review those dis-

charges for compliance with its own water quality standards. Under

this procedure a federal licensing or permitting agency, must notify

the Administrator of EPA when it receives an application and the

accompanying certification. If the Administrator determines that

the discharge in-question will affect the quality of the waters

of any other state, and if the adjacent state determines thatthe

discharge will result in a violation of its water quality requirements,

that state can object to the issuance of that license or permit and

request a public hearing on the matter. The licensing or permitting

agency must then hold a hearing on the objection, and, based upon

available recommendations and evidence, condition its permit to

ensure compliance with applicable water quality standards. If no

conditions can ensure such compliance, the agency cannot issue its

license or permit.

It would seem, however, that the above scenario could only take

place in those states that had water quality standards stricter

than the national standards, and even then only where the standards

in the affected state were more stringent than any stricter-than-

national standards in the certifying state.

The second additional right to review previous certification

is found in Section 401(a)(3). This right of review involves the

granting of federal permits or licenses for the operation of facilities

that have received certification at the time of the application for

construction permits or licenses. Generally, the construction-re-

lated certification will also fulfill the certification requirements

for the granting of a permit or license for operation. The certifying

agency must, however, be given notice of the application for a permit

or license to operate. If there have been changes since the con-

struction-related certification in (1) the construction or operation

of the facility; (2) the condition of the receiving water; (3) the

applicable water quality criteria; or (4) applicable water quality

standards; and the certifying agency determines that there is no

longer a reasonable assurance that the relevant provisions of

Section 301, 302, 306, and 307 will be cxxnplied with, the con-

struction-related certification will not be sufficient to fulfill

the certification requirements forthe license or permit to operate.

Nor will such previous certification suffice if the applicant for

the operating license or permit has not advised the certifying agency

of changes in the permitted or licensed project that may result

in violation of the applicable water quality standards.

A further opportunity for reviewing the compliance of federally

permitted and licensed activities is provided by Section 401(a)(4).

Under this Section, those projects which have been certified under

Section 401(a)(1) at the construction stage are subject to a review

of their compliance with water quality standards at the operation

stage, even if the activity is not subject to a federal operating

permit or license. If the certifying agency notifies the permitting

or licensing agency that the activity will violate applicable standards

the licensing or permitting agency may, after public hearing, suspend

the license or permit until further certification is received.

The certification provisions outlined above provide a frame-

work for the early detection and avoidance of federally permitted or

licensed projects that do not comply with water quality standards.

These certification requirements do not apply to actions by federal
24
agencies themselves, or to activities requiring permits or licenses

fran state or local authorities. Nor are the certification procedures

necessarily applicable to the issuance of 402 permits, since permits

granted by States under the 402 program are not federal but rather
25
State permits.

The significance of Section 401 for the Nuclear Regulatory

Commission lies in the additional opportunity it provides the states

for review of applicants' projects, and an additional step an appli-

cant must take to secure a permit or license. This certification,

however, does not really impose an additional requirement on most

applicants, since compliance with applicable water quality standards

would be required at a later date anyway. This process is simply

a further means of ensuring ccupliance, and also ensuring that con-

siderations of compliance are dealt with early in the planning process

of a given project.

E. Section 208 and 303: Planning Requirements

1. Introduction

Section 208 and 303 of the Azexclments are considered together
26
because EPA's revised regulations consolidated their planning

requirements and outlined the elements of water quality planning and

management required by the two sections. Specifically, the revised

regulations established a single state process (the Continuing

Planning Process (CPP)) to direct the develqpment of W. .1 Plans

(Section 208 plans), as well as implementing program prepared

pursuant to Sections 208 and 303(e) of the Amndments and 40 C.F.R.

131.

To set the tone for discussing the continuing planning process,

Section 208 and 308 will be briefly reviewed.

i. Section 208

The purpose of Section 208 is to develop and then implement

new areawide waste treatnient management and regulatory programs to

clean up the waters in polluted areas and basins and to prevent

pollution from degrading relatively unpolluted areas. The Section

208 planning agencies are to develop a "continuing areawide waste
27
treatment management planning process" which is to result in a

water quality management (WQM) -olan containing, among other elements:

"the establishment of a regulatory program to -

regulate-the location, modification, and
construction of any facilities wif-bin such
area which mav result in qDy discharge in
such area 28/(emphasis added) and

"t-heidentification of measures necessary to = out
the plan (including financing), ...the costs of carrying
out the plErri ... and the economic, social, and environmental
impact of carrying out the plan... 29/(emphasIs- -added)

The 208 (Water Quality Management) plans are to develop ccnpre-

hensive strategies to con-bat both "point" and "nonpoint" sources

of water pollution. "Point sources" are defined as "any discernible,

confined and discrete conveyance, including but not limited to any

pipe, ditch, ch@nnel, tunnel, conduit, well, discrete fissuref .

container, rolling stock, concentrated animal feeding operation or

vessel or other floating craft, from which pollutants are or may be
30
discharged.

Although "nonpoint" pollution is not explicitly defined in the

Act it embraces all pollutants which do not originate from "point"

sources. The Director of the Water Planning Division of EPA has

stated that "nonpoint" pollution:

implicitly is man-made or man-induced alteration
of the chemical, physical, biological, or radio-
logical integrity of water that is not introduced
via a discernible, confined or discrete conveyance
such as a pipe, well or container, or not intro-
duced by discrete, readily discernible sources of
pollution. Examples of nonpoint pollution are
sediment introduced by runoff from agricultural
land or construction sites, acid mine drainagel
or salt water intrusion of ground water. aZ

There are presently no approved Section 208 Water Quality

Management Plans. Several plans are, however, scheduled to be ap-
32
proved before the end of February, 1977.

ii. Section 303

Section 303(e) provides that each state prepare a continuing

planning process which will result in plans for all navigable waters

within the State to include, but not be limited to:
33
"effluent limitations and standards of carpliance...

"the incorporation of all elemnts of any applicable
areawide waste managemnt plans under Section 208... ;@4/
(enphasis added)

"total maximum daily load for pollutants... ; 35/

"adequate authority for intergovernrental cooperation, 36/
and

"adequate mplementation, including schedules of
conpliance, for revised or new water quality standards...

iii. Development of the Continuing Planning Process.

Due to the decision in Natural Resources Defense
38
Council v. Train, EPA's revised regulations consolidated the

requirements of sections 208 and 303 and provided for the establish-

ment of a continuing planning process (CPP). .

In developing the continuing planning process, Section 130.10(a)

of the regulations requires that the state and designated areawide

planning agencies include:

public participation during plan development,
review, and adoption... ; 39/

Adequate intergovernmental input in the development
and inplementation of water quality management
plans ... ; 40/

The cooperation and integration of the water
quality management planning in State planning area
and in designated areawide planning areas ...and co-
ordination of water quality management planning with
related Federal, State, interstate, and local ccm-
prehensive, functional, and other developmental plan-
ning activities, including land use and other natural
resources planning activities... ; 41/

The preparation, adoption, and revision, of water
quality management plans for the appropriate areas
of water within the State... 42/(emphasis added); and

The establishment and implementation of regulatory
programs identified in approved water quality manage-
ment plans ... ; 43/

Moreover, ti-ie state agency's planning process must also provide
for:

The development, review and adoption of water quality
standards... 44/(eMhasis added);

The deve@opm?nt, adoption and implementation of a
Statewide policy on antidegradation ... 45/;

The review, and certification of plans for designated
areawide planning areas..46/; and

The annual preparation of the State strategy ... 47/

ihe requiremnts of the CPP related to water quality management

plans, water quality standards and antidegradation are discussed more

fully in subsequent parts of this section. Each of these require-

ments will affect the siting of any facilities which discharge into

navigable waters. The aspects of the CPP emphasizing intergovernmental

cooperation will, however, be mentioned here. The CPP is to assure

that State TA794 plans are coordinated with plans for designated areawide

planning agencies within the State, with Section 208 planning in adja-

cent states, and with affected State, local and Federal -programs,

and any other applicable resource and developmental prograTm including:

(1) State and local land use and develorpent. programs.

(2) Activities stem=g from applicable Federal resource
and developmental programs including:

(i) The Solid Waste Disposal Act, as amended (Pub. L. 91-
512).

(ii) The Safe Drinking Water Act (Pub. L. 93-523).

(iii) The Clean Air Act, as amended (Pub. L. 91-604).

(iv) The Coastal Zone Management Act. (Pub. L. 92-583).

M The Watershed Protection and Flood Protection Act.
(Pub. L. 83-455).

(vi) rffie Rural Development Act of 1972 (Pub. L. 92-419).

(vii) Land and Water Conservation Fund Act, as amended
(Pub. L. 88-578).

(viii) The National Historic Preservation Act (Pub. L. 89-665).

Ux) The Fish Restoration Act (Pub. L. 81-681) and the
Federal Aid in Wildlife Restoration Act (Pub. L. 75-
415).

(x) The Endangered Species Act (Pub. L. 93-205).

(xi) wastewater management urban Studies Programs
administered by the U.S. Army Corps Of
Engineers (Pub. L. 685, 1938, Pub. L. 429, 1913).

(Xii) Transportation Planning administered by the Depart-
ment of Transportation (Pub. L. 87-866, Pub. L. 93-366,
Pub. L. 93-503.

(Xiii) The Housing and Community DeveloFmnt Act of 1974
(Pub. L. 93-383).

(xiv) Other Federally assisted planning and management
programs. 48/

In addition, in developing the CPP, the State or areawide

planning agency must consider "level B" studies prepared pursuant to

Section 209 of the Anxez0ments - Of particular importance are the

portions of the level B plan relating to "energy development and
49
production factors." If the level B plan, pursuant to Section 209,

has not been initiated, the State or designated areawide planning agency

is to identify constraints on water quality management due to "(e)nergy
50
development and production factors," as well as other considerations.

2. water Quality Management (WW) Plans

A water quality management plan or section 208 plan is "...the

plan for managing the water quality, including consideration of the

relationship of water quality to land and water resources and uses,

on an areawide basis, for each EPA/State approved planning area and

for those areas designated pursuant to section 208(a)(2),(3), or (4)

(the areawide planning agencies). - - . Preparation, adoption, and imple-

nentation of water quality management plans... shall constitute

cmpliance with State re@@ponsibilities under Sections 208 and 303 (e) of

the Act (Amendments) and areawide responsibilities under Section 208
51
of the Act (Amendments)." (emphasis added)

Thus, in each State there will be two kinds of Water Quality

Management Plans - plans for specially designated local areas (area-

wide) and the state plan for the reminder of the state. The WQM

plans in the designated areas will be prepared by local authorities

while the state is responsible for developing I@Ul plans in the nonde-

signated areas of the state. The regulations (40 C.F.R. � 131)

describe the requirements for the state and areawide planning agency

planning and implementation under Section 208 of the Anendments. The

WQM plans to be developed pursuant to these regulations and the imple-

mentation of these WQM plans must be in full compliance with the
52
requirements of Section 208. The state has the ultimate responsi-

bility for the outcome of the state and areawide planning efforts.

The primary objective of the water quality management plan is

"...to define the programs necessary to achieve the 1983 national

water, quality goal established in Section 101(a)(2) of the Act
53
(Ainendments)" As stated previously, the national goal is "...wherever

attainable, an interirn goal of water quality which provides for the

protection and propagation of fish, shellfish, and wildlife and provides
54
for recreation in and on water be achieved by July 1, 1983."

The regulations (40 C.F.R. S 131.11) specify many elements that

must be included in a WQIvI plan. only those elements of specific rele-

vance to this study, however, will be discussed.

First of all, the WW plan must contain an ele-nent on "water
55
quality assessment and stream classification." The WQM plan is

to assess existing and potential water quality problems within

the state planning area or designated planning area. This assess-

ment is to include: "an identification of the types and degree of

problems and the sources of pollutants (both point and nonpoint sources)

contributing to the problems." certain segments with existing or po-

tential water quality standards violations may require controls more
56
stringent than Best Practicable Waste Treatment Technology (MM)
57
or Best Available Technology (RAT). Areas where it is expected that

(RAT/BPWTT) will not be sufficient to meet the 1983 water quality goals

will require detailed planning for both point and nonpoint sources.

In general, it seems that applicants for a license to construct

or operate a nuclear facility that would discharge into navigable waters

should avoid locating within areas with current or potential water

quality problem. It seems that these restrictions may tend to focus

development on locations with no water quality
. problem'. However, the

regulations include an antidegradation policy to insure that high-quality

waters are protected from becoming polluted. (See part 3 of this section).

The WQM plan is to contain an inventory of municipal and

industrial sources of pollutants, a summary of existing land use

patterns, demographic and economic growth projections for at least a

20 year planning period so that potential water quality problems can

be identified, a projection of future minicipal and industrial waste
58
loads, and a projection of future land use patterns, It seems

that this data on existing and future sources of pollution and land

use could be of relevance to electric utilities who are preparing

assessments of future energy needs, as well as determining those

locations where increased energy needs must be met.

The WQM is also to provide rry--chanisms for meting applicable
59
water quality standards, including the Statewide antidegradation policy,

established pursuant to Section 303(a)(b) and (c) of the ATrendments,

as well as any plans to revise such water quality standards. It appears

that standards may need to be revised in two general situations:

(1) "to adequately protect existing beneficial uses (including high

quality waters for which existing standards are not stringent enough),"

and (2) "to propose upgrading of existing use classifications in order

to achieve the 1983 goal in Section 101(a)(2) of the Act (Amendments),
60
wherever attainable."

Water quality standards and the antidegradation policy, and

their relevance to this study, are discussed more fully in part

3 of this section.

The requirement that the WQM plan include a description of

existing state/local regulatory programs which are or will be utilized

to irrplement the plan is very inportant to this study. of particular

relevance to applicants for a license to construct or operate a

nuclear facility is that the W94 plan should assure that:

(t)he location, modification and construction of any
facilities, actTv-ities, or substantive changes in use
of the lands within the approved planning area, which
might result in any new or deleterious discharge
directly or.indirectly [email protected] waters are
regulated. 61/(emphasis added).

The WQM plan must also demonstrate that it has identified and

evaluated all sources of pollution in the area and that it has

developed appropriate control alternatives for existing and potential

pollution sources. The WQm plan is also required to demonstrate that

an adequate regulatory program for each category of pollutant source
62
identified in the continuing planning process is included in the plan.

These provisions of the WQM plan are of direct importance to

persons seeking to construct and/or operate a facility that will dis-

charge into navigable waters. Once the WQM plan is approved, facilities

within the plan's jurisdiction discharging into navigable waters,

must be consistent with the plan before a Section 402 NPDES permit
63
can be issued. Thus, those planning to construct a facility (including

a nuclear facility) that will discharge into navigable waters should

be aware of the requirements of the applicable 208 Water Quality

Managemnt Plan. Steps to insure that the facility is consistent with

this plan should be taken at an early stage in facility develoFuent.

Finally, in the develogrkent of the WQM plan, the environmental,
64
social and economic impacts of meeting the plan must be assessed.

This assessment is required to meet the requirements,in part, Of Section

102(2)(c) of the National Environmental Policy Act of 1969 (see Section

I of this study on NEPA) and the requirements of Section 208(b)(2)(E)

of the AmenaTients. The WW plan should identify the existing con-

ditions in the area and evaluate the likely unpacts on these

conditions with respect to the alternative IIQM plans.

As noted previously, no IVQM plans have been approved by the

federal EPA. Several plans should, however, be approved by the

end of February, 1977. Thus, the precise effects of these plans

on applicants for licenses to construct or operate a nuclear facility

or the NRC, in general, cannot be evaluated at the moment.

3. Revision of Water Quality Standards and the Antidegradation

Policy.

Water quality standards, perhaps best described as "the

combination of designated uses of a stream segment (such as fishing,

drinking water, etc.) and pollutant criteria necessary to achieve
65
those uses," are not static, but are in a continual reevaluation

and revision process. Together with the federally required state
66
nondegradation policy, the states have an established planning

objective upon which to base their day@to-day decisions regarding

the pernutting of potential sources of water pollution.

In November of 1975, the EPA promulgated revised regulations

which, in part, set forth a strict policy to prevent any degradation

of high quality waters and set forth the criteria and procedures for

significantly upgrading state water quality standards. Due to the

fact that the general requirements and inplications of revisions of

water quality standards and the antidegradation policy are adequately
67
described in existing publications, and since the requirements were

also discussed in detail in part-3 (concerning Section 208 and 303),

the remainder of this part will focus on those aspects of the EPA

regulations of most relevance to this study.

The essential elements of the regulations regarding revision

of water quality standards have been described as follows:

States must review their water quality stan-
dards every three years and revise them
where appropriate.

Water quality standards must protect public
health and welfare and provide protection
for downstream water quality standards.

States must upgrade existing water quality
standards where current water quality sup-
ports higher uses than those presently de-
signated.

States must upgrade existing water quality
standards to achieve the Act's 1983 goal
of fishable, swimmable waters, where
attainable, with attainability premised
on environmental, technological, social,
economic, and institutional factors.

States must downgrade existing water quality
standards upon a demonstration that (a)
existing standards are not attainable be-
cause of natural conditions (such as high
background due to leachate from natural
heavy metal deposits); (b) existing stan-
dards are not attainable because of irre-
trievable man-induced conditions (such as
where known control methods are incapable
of restoring the water to the designated
uses); or (c) application of existing
standards would result in substantial and
widespread adverse economic and social
impact (suEh as a large increase in un-
employment not due to other factors in
a large area for over one year.) 68/(emphasis
added) .

Through the 401 Certification process and the 208 areawide wide

100

waste treatment plans, higher water quality standards will directly

affect the siting of nuclear facilities. Thus, the NRC needs to

ensure that its guidelines for renewal of applications for nuclear

facilities, both at the construction permit stage and at the operat-

ing permit stage,take careful consideration of any ongoing revisions

of water quality standards.

The state antidegradation policy must contain, at a mininTum:

1. In all cases, existing instream beneficial
water uses must be maintained and protected.
Any actions that would interfere with or
becorre injurious to existing uses cannot
be undertaken. Waste assimilation and trans-
port are not recognized beneficial uses;

2. Existing high quality waters must be maintained at
their existing high quality unless the State
decides to allow limited degradation where
economically or socially justified. If limited
degradation is allowed, it cannot result in
violation of water quality criteria that describe
the base levels necessary to sustain the national
water quality goal uses of protection and pro-
pagation of fish, shellfish and wildlife and
recreation in and on the water;

3. In all cases, high quality water which bon-
stitute an outstanding national resource must
be maintained and, protected;

4. Any determinations concerning thermal discharge
limitations under Section 316(a) of the Act will
be considered to be in compliance with the anti-
degradation policy. 69/

EPA's regulations provide for implemntation of the anti-

degradation policies in three stages. First, the continuing planning

process that each state must develop and submit to EPA must contain

a schedule for the I'developrrent and adoption of a statewide policy
70
on antidegradation." Second, after public hearings, each state is

101

required to adopt a new statewide policy on antidegradation between

April and Decenber, 1976. The new policy is to be suhrnitted to EPA

for approval. The requirements are to be at least as restrictive

as the national policy. on July 1, 1977, state antidegradation

policies are to go into effect. After that date, all proposed

activities that result in increased water pollution will have to

be screened for,consistency with the federal-state antidegradation
71
requirements.

It should be noted that the antidegradation policy expressed

in the regulations has been challenged by a group of public
72
utilities. The outcome of this litigation is uncertain.

F. The Second Memorandum of Understanding between NRC and EPA

The express purpose of the "Second n3wrandum of Understanding
73
Regarding Implementation of Certain NFC and EPA Responsibilities" is

"to clarify the respective roles of EPA and NRC in the decision-

making processes,concerning nuclear power plants and other facilities
74
requiring an MC and EPA license or permit.11 Mile the procedures

established by the Second Memorandum address cooperative evaluation,

review, and processing of a variety of activities, it is clear that

the Second k4emorandum is not intended to restrict the statutory
75
authority of either agency. The opportunities this agreement pro-

vides for the two agencies to more effectively fulfill their re-

spective responsibilities by increasing efficiency in the gathering

and processing of data does provide, however, a positive example

of two federal agencies with distinct russions cooperating to

102

mininLize duplication of effort and maximize sound decision-making.

The Second MemorandLun provides moreover, a concrete illustration

of how federal agencies can attempt to introduce the expressed

concerns and views of*the states into the decision-making process

for siting of nuclear energy facilities. In this context, and for

the purposes of this study, the provisions of the Second Memorandum

of most significance relate to the state certification (Section 401)

of the acceptability of an NPDES permit (Section 402), in light of

the Section 208 areawide and state-wide waste treatment management

plans.

As mentioned in the preceding sections of this chapter, once

a 208 Water Quality Management plan has been an approved, an NPDES
permit cannot be issued if it would conflict with the plan. 76 Thus,

a proposed nuclear facility which will discharge into navigable

waters and which is to be sited in an area within the purview of an

approved 208 plan will not be issued an NPDES permit if it is in

conflict with the plan. of particular importance to the siting

of nuclear facilities is the requirement that all 208 plans must

provide for the regulation of "the location, modification and con-

struction of any facilities within such area which may result in any
77
discharge in such area." The operative effect of this provision

is scmewhat unclear because no 208 plan has been formally approved

by EPA. The Second Memorandum and the supporting correspondence,

however, do specifically address this provision in terms of its

hplications on the scope of the required examination of alternatives

in NRC's impact statements.

103

In "Appendix Ar-Policy Statement on IiTplementation of Section
78
511 of the Federal Water Pollution Control Act" the NRC established

its policy concerning the effect of Section 511 of the FWPCA upon

its statutory responsibility and authority under NEPA in licensing

actions. Of particular importance is the statement contained in

Part 4.C:

Neither alternative sites, facilities
or activities, nor alternative systems
will be considered by NRC pursuant to
NEPA if and to the extent that a deter-
mination made with respect to the facility
or activity under Sections 208(b)(2)(C)
(ii) and 303(c)(3)(B) of the FWPCA requires
a condition that a particular site, facility
or activityor system be adapted. 79/

Employing this reasoning, NRCIs consideration of alternatives,

for example, would be restricted by the contents of applicable

water quality plans developed pursuant to the FWPCA. The legal

defensibility of this approach was, however, drawn into question by

the Council on Environmental Quality, which resulted in the following

statement from the NRC:

The paragraph reflects the constraint on NRC's
authority under NEPA imposed by section 511(c)
(2) of the FWPCA. The paragraph limits the
authority of NRC under NEPA to review and
evaluate alternative sites where a State or
EPA, acting under section 208(b)(2)(C)(ii) of
the FwPCA, establishes and implements in the
particular case a regulatory program which
includes review and analysis of sites and which is
.essentially equivalent in its scope and depth
of review of environmental factors and alterna-
tives to that required of Federal agencies, such
as NRC, under NEPA.

104

NRC is hot relieved of its responsibility
to review and evaluate alternative sites
under NEPA to the extent that the State
or EPA review progran under section 208
(b)(2)(C)(ii) is narrower in scope of re-
view of environmental factors than required
of Federal agencies by NEPA. For example, if
envirorm-ental impacts of transmission lines
o
if land use impacts were not considered.
r 1
NRC would consider such impacts in its review
of the application. 80/ (emphasis added)

Thus where prior state or EPA site review under an applicable

water quality plan is narrower in scope than that required of NRC

under NEPA, it will not serve to relieve the Commission of its NEPA

inposed duty to consider environmental factors and alternative sites.

But because one requirement for approval of a 208 plan by ZPA is the

"identification of ... the economic, social, and envirorznental inpact
81
of -carrying out the plan," and because EPA will prepare an EIS on
82
the proposed 208 plan before approving it, a great deal of information

will be available for use by NRC in its licensing process.

It must be noted, however, that this information, standing

alone, would not satisfy the requirements set forth in Appendix A

to the Second Memorandum, since these envirom-ental assessments would

not normally address a specific site use. This is so primarily for

two reasons. First, the 208 plan will not usually contain a de-

signation of permissible uses on a map, let alone a positive state-

ment that nuclear facilities will be allowed at specific locations

within the planning area. Second, the primary purpose of the EIS

for a proposed 208 plan is to assess the envirormiental implications

of the process by which decisions under the plan will be made,

105

in light of certain physical and biological parameters within the

planning region.

It is, therefore, highly unlikely that either the 208 plan-

ning process or the EIS's prepared on approved plans will serve as

viable substitutes for the kind of careful enviromnental considerations

required of NRC in its license and permit decisions. It is possible,

however, that the environmental information and analyses developed in con-

nection with water quality plans can be effectively and efficiently em-

ployed by NRC in reaching its own independent judgment of site suit-

ability.

106

EVICA

Footnotes

1. P.L. 92-500, 33 U.S.C. S 1251 et. seq. (hereafter FWPCA).

2.. Statement by John Blatnik, Chairman, Ccxrmttee on Public
Works, in United States House of Representatives, Committee
on Public Works. Laws of the United States Relating to
Water Pollution Control and Environmental Quality, 93d Cong.,
lst Sess., March 1973, p. 3.

3. FTIPCA S 101(a)

4. A Legislative History of the Water Pollution Control Act
Affendments of 1972, 93d Cong., lst Sess.,January 1974, p. 1286.

5. The term "pollutant" is defined by Section 502(6)to mean: "dredged
spoil, solid waste, incinerator residue, sewage@, garbage, sewage
sludge, munitions, chemical wastes, biological materials, radio-
active materials, heat, wrecked or discarded equipment, rock-, sand,
and agricultural waste discarded into water."

6. The term "navigable waters" is defined by Section 502(7) to
mean "the waters of the United States including the territorial
seas."

T. FNVCA S 101 (a) (1) .

8. Id. , � 101 (a) (2).

9. Id. , SS 301 (b) (1) (A) (i) and 301 (b) (2) (A) (i) .

10. Id., 301 (a).

11. Id. , 502 (11).

12. Id., 301 (b) (1) (A) (i) .

13. Id., 301 (b) (2) (A) (i) .

14. Id., 306 (a) (1) .

15. Id., 9 510.

16. "Envirom-ental Protection Agency Transition Papers to Incoming
Carter Administrator on Areas of Agency Jurisdiction," 7 En.
Reporter 1322 (1/7/77).

17. FWPCA S 316(a).

18. Id. , 5 316 (b)

FWCA 1

19. Id. 4 01 (a) (1).

20. 40 C.F.R. S 123.1(e) (1976).

21. Mat constitutes a "reasonable time" is determined by the
licensing agency and is generally six months but less than
one year. 40 C.F.R. S 123.1 (1976).

22. FWPCA 4 01 (a) (1) .

23. Id., 401(d).

24. Id. , 4 01 (a) (6) .

25. U.S. Congress, Comnittee on Public Works, A Legislative History
of the Water Pollution Control Act Amendment of 1972, 93d
Cong., lst Sess., January 1973, p. 814.

26. 40 C.F.R. �� 130 & 131 (NoveTber 28, 1975). These regulations
were prcmulgated in accordance with a court ruling, Natural Re-
sources Defense Council v. Train (D.C. D.C. Civ. Act. No. 74-485)
which found that Section 208 planning must be conducted by the
States in all areas of the State, not just those areas desig-
nated by the Governor as areawide planning agency, pursuant to
Section 208(a)(2)-(4) of the ENIPM. Designated areawide planning
areas" are areas "...which, as a result of urban-industrial
concentrations or other factors, has substantial water quality
control problems. "

27. FWPCA 20 8 (b) (1) .

28'. FWPCA 208(b)(2)(c)(ii).

29.@ Id. , (b) (2) (E) .

30. FWPCA � 502 (14) .

31. Mark Pisano, "208: A Process for Water Quality Management" in
Enviromental Comment, (Urban Land Tnstitute, Jan., 1976), p. 16,
footnote 1.

32. Conversation with Ginger Patterson, U.S.E.P.A., Water Planning
Division, February 4, 1977.

33. EIIPdA � 3 03 (e) (3) (A).

34. Id. @ (e) (3) (B) .

35. Id. , (e) (3) (C) .

na:ICA 2

36. Id. , (e) (3) (E) .

37. Id., (e)(3)(F). Note: for the purposes of the FWPCA, the
Eerm "Water quality standards" includes thermal water quality
standards (FWPCA S 303(e)(3)(h)).

38. D.C. D.C. Civ. Act. No. 74-1485.

39. 40 C.F.R. S 130.10(a)(1).

40. Id. , (a) (2) .

41. Id., (a)(3).

42. Id., (a) (4) .

43. Id., (a) (5) .

44. Id., (b) (1) .

45. Id., (b) (2) .

46. Id., (b) (3) .

47. Id., (b) (4) .

48. Id., 13 0. 34 (a) (1) (i) - (Xiv)

49. Id., (c) (7) .

50. Id. , (d) (3) .

51. 40 C.F.R. S 130.2(f).

52. 40 C.F.R. 9 131.1(b)

53. Id., S 131.10(a).

54. FWPCA S 10 2 (a) (2) .

55. 40 C.F.R. S 131.11(b)(1).

56. Best Practicable Waste Treatment Technology (BPWTT) "Waste
treatment management plans and practices shall provide for
the application of the best practicable waste treatment tech-
nology before any discharge into receiving waters, including
reclaiming and recycling of water and confined disposal of
pollutants so they will not migrate to cause water or other
environmental pollution...." (FIIPCA, Section 208(b)).

FNPCA 3

57. Best Available Technology (BAT) - "Not later than July 1, 1983,
effluent limitations for categories and classes of point
sources, other than publicly owned treatment works ... shall
require application of the best available technology economically
achievable for such category or class, which will result in
reasonable further progress toward the national goal of elimina-
ting the discharge of all pollutants as determined in accordance
with regulations issued by the Administrator pursuant to section
304(b)(2) of this Act..." Section 301(b)(2)(A)).

58. 40 C.F.R. S 131.11(c) (I)-C5).

59. Id. , (e)

60. U.S.E.P.A., "Guidelines for State and Areawide Water Quality
Management Program Development." p. 3-13, November, 1976.

61. 40 C.F.R. S 131.11(n) (ii).

62. Supra, note 57 at 3-63.

63. FWPCA S 208(e).

64. 40 C.F.R. 9 131.11(p).

65. D. Donley & K. Hall, "Section 208 and Section 303 Water
Quality Planning and Management: Where is it Now?", 6 EIR
50115, 50118 (Oct. 1976)

66. 40 C.F.R. S 130.17(e).

67. See supra., note 65; Environmental Protection Agency, Guide-
line-s -for Developing and Revising Water Quality Standards,
April, 1976.

68. Supra, note 65, at 50118.

69. 40 C.F.R. � 130.17(e)(2).

70. Id.

71. Supra, note 60 at 5-15.

72. Ccumnwealth Edison v. Train, No. 75-64127 (N.D. Ill., filed
Dec. 5F 1975).

73. 40 Fed. Reg. 60115 (1975), as amended by.

74. 40 Fed. Reg. 3515 (1976).

75. 40 Fed. Reg. 60118 (1975).

76. Id., at 60120.

FwPCA 4

77. FWPCA, 208(e).

78. 40 Fed. Reg. 60120 (1975).

79. Id.

80. Id., at 60121.

81. FWPCA, S 2 08 (b) (2) (E) .

82. 40 Fed. Reg. 16814 (1975).

FWPCA 5

IV. The Clean Air Act Amendments

A. overview

Although presently having only indirect affects on the siting of

nuclear facilities and the transmission of electricity, the Clean Air

Act AnendnLents of 1970, generally referred to as the Clean Air Act

(CAA), contain important provisions affecting land use planning and

energy facility siting at the state, regional, and local levels. More-

over, the achieveTent and maintenance of national air quality standards

and the prevention of significant deterioration in air quality will

determine where and to what extent new energy production sources will

be allowed. Thus, the CAA raises several significant questions for

examination. One aspect of particular relevance to this study is the

requiremnt that each state develop and implement a State MNplementation

Plan (SIP). The SIPs establish a planning and regulatory process for

attaining and maintaining the national air quality standards (NAAQS),

as well as preventing significant deterioration. The SIPs pl ay a

significant role in affecting the siting of many energy and related

facilities. Through the enforcment of federally established national

air pollution standards and regulations, the SIPs place substantial

restrictions on fossil-fuel fired electric power facilities. Moreover,

the. Clean Air Act's provision for an elaborate federal/state relation7

ship where the federal EPA sets air quality standards and each state

enforces these standards through a federally approved iffplementation

plan (SIP) provides one illustration of a mechanism for achieving irrr-

proved federal/state relationships and coordinated planning on a nation-

wide scale. To the extent that this mechanism is workable and trans-

107

ferrable, it can serve as an example of an existing federal/state plan-

ning frarnework to the Nuclear Regulatory CcurLission and other agencies.

There is presently no CAA air quality standard for pollutant en-Lis-

sions from naturally occurring radiation, although it seems that radio-

active particles could be the basis for an ambient air quality standard

as well as a hazardous air pollutant. Presently, EPA is proposing a

legislative initiative to give the Agency the authority to protect the

public health and the environment from naturally occurring radioactive

materials. One activity which might be regulated is phosphate mining

in Florida. In this case, it appears that the mining is causing an

increase in naturally occurring radiation levels due to exposure to

materials that would otherwise have remained buried. The proposal

would authorize EPA to promulgate standards for the development of

acceptable state programs to control radionuclides from naturally occur-
ring sources.2

EPA has also been developing a Uranium Fuel Cycle Standard. This,

standard would address the planned releases of the uranium fuel cycle

in producing electrical power, including milling operations, fuel en-

richment, and fabrication of nuclear power reactors (light-water cooled

only). Waste disposal and mining operations are not included in the
standard. The standard is to be enforced by the NRC. 3 Although not

developed pursuant to the Clean Air Act, the proposed Uranium Fuel

Cycle Standard is inr-ortant and is mentioned as another consideration

for future review.

A significant problem may arise with respect to the control of

naturally occurring radiation. Any discussion of the pros and cons of

108

such control should consider how the control of naturally occurring

radiation (in the atmosphere or at the source) will differentiate be-

tween the naturally occurring radiation's emissions and those emissions

fran nuclear powier facilities and supporting activities, explosions of

nuclear test weapons, etc. For instance, if ambient standards are set for

naturally occurring radiation, care must--be taken to insure that radi-

ation emission increases are due to naturally occurring radiation sources,

and not to other sources of radiation (such as nuclear power facilities).
One recent court ruling, NRI)C v. Train,4 is of importance in any

discussion of a possible national ambient air quality standard for radio-

active particles. The ruling found that if a pollutant meets the con..

ditions of �� 108(a)(1)(A) and (B) of the Clean Air Act pertaining to

National Ambient Air Quality Standards (NAAQS) , then the Administrator

of EPA, must establish national ambient air quality standards for the

pollutant. The-states are required under 9 110(a)(1) to make provisions

in their air quality implementation plans (SIPs), for attaining and

maintaining these standards within three years. Thus, if radioactive

particles are found to meet the conditions of a NAAQS, the Administrator

is required to establish national a-nbient air quality standards. In

turn, the states are required to make provisions for the attainment and

maintenance of this standard within three years.

Finally certain aspects of the CAA may be of increasing importance

to the nuclear power industry in the future. In areas where more energy

is needed, but proposed fossil-fuel electric power facilities will vio-

late a NAAQS or other applicable standards, nuclear facilities offer

one energy alternative. Although it should be recognized that a trade-

109:

off fr(xn one energy source to another involves rrore than j ust air qual-

ity considerations such as safety issues, efficiency, cost, and

water requirenients the choice between nuclear and fossil-fuel power

facilities (particularly coal) may become a very important issue in the

near future. This issue has already been recognized in the NW-Is nuclear

energy center site survey wl-dch found that "it is clearly important, both

for regional and national reasons, for Miduest and Plains states to

consider explicitly the balancing of nuclear versus coal-fired electric

getierating stations in the coming decade. The inportance of the trade-
off in this area rnight, indeed, be recognized legislatively." 5

110

B. Provisions of the Clean Air Act of Interest to the NRC

The Clean Air Act (CAA), represents the first ccinprehensive fed-

eral/state program designed to attain and maintain clean air nationwide.

To achieve its goals, the CAA directs that:
1. National ambient air quality standards (NAAQS) be established;6
2. Performance standards 7for new or modified stationary sources 8
be established@
3. Emissions standards9 for hazardous air pollutants be developed;
and
4. State ixrplementation plans 10 to insure ccopliance with these
air quality standards be created.

Each of these requirements is discussed below.

1. National Ambient Air Quality Standards (NAAQS) (Section 109)

The Clean Air Act requires the Administrator of EPA to establish
national ambient 11 air quality standards. 12 The CAA provides for two

levels of standards:

1) Primary standards, which are defined as "...ambient air quality

standards the attainment and maintenance of which ... are requisite to
protect the public health;" 13 and

2) Secondary standards, w1hich are defined as "...ambient air

quality standards-the attainment and maintenance of which ... is re-
quisite to protect the public welfare .... 11 14

For a wide variety of reasons, the air quality control effort continues

to focus on,nveeting standards that protect public health. As a result,

the standards designed to protect against air quality impacts on public

uelfare (such as those that damage plant and animal life, degrade visi-

bility in pristine areas, or inflict physiochemical damage to various

ill

materials), have not received the attention or cam-Litment intended in
th6 CAA. 15 The Clean Air Act established two statutory deadlines for

meeting these standards:

1) July 1, 1975; to attain primary mbient air quality standards
for protecting public health, 16- and

2) to attain secondary ambient air quality standards for-protect-
ing public welfare within a "reasonable tim." 17

2. Performance Standards for New Stationary Sources (Section 111)

Section 111 of the CAA gives the Administrator of EPA the authority

to establish federal standards-of performance for new or modified sta-
tionary sources of air pollution. 18 Standards of performance are dis-

tinct fr(xn ambient air quality standards. WIdle an ambient standard

applies to the total concentration of a pollutant in the atmosphere

from all sources, standards of performance constitute the maximLzn per-
m-issible Enussion levels for specific pollutants at their source. 19

The establishment of standards of performance takes into account the

application of the best system of emission reduction (considering cost)
that has been adequately demonstrated @20

The Administrator is required to publish a list of stationary
sources covered by this section 21 (see footnote 38 for the list). After

the standards of performance are established and the list of stationary

sources approved, "each state may develop and suhndt to the Administrator

a procedure for iriplauenting and enforcing standards of performance for
new sources located in such state." 22 This section provides that if

the Administrator finds a state's procedure adequate, "...he shall dele-

gate to such State any authority he has under this Art to implement and

112

en force such standards (except with respect to new sources owned or
operated by the United States)." 23 If the state does-not enforce the
standards, the Administrator retains the authority to enforce them. 24

The standards of performance apply to new- and modified sources.

The Act also provides a procedure for a state to set standards for ex-

isting sources. The Administrator of EPA establishes a procedure,

similar to that under Section 110 (State Implementation Plans) that

requires each state to submit to the Administrator a plan which "...es-

tablishes emission standards for any existing source for any air pollu-
tant..." 25 , and "...provides for the implementation and enforcement of
such emission standards." 26 Similar to the provisions of Section 110(c)

of the Act, the Administrator has the authority "to prescribe a plan

for a state in cases where the State fails to suhn-Lit a satisfactory
1127
plan... ., and "...enforce the provisions of such plan in cases where
the State fails to enforce them.... ,28

3. Emission Standards for Hazardous Air Pollutants

Section 112 of the CAA requires the Administrator to set national
emission standards for "hazardous air pollutants." 29 As defined in the

Act, "hazardous air pollutant" means "...an air pollutant to which no

ambient air quality standard is applicable and which in the judgment of

the Administrator may cause, or contribute to, an increase in mortality

or an increase in serious irreversible, or incapacitating reversible,
illness." 30 This section requires the Administrator to publish "...a

list which includes each hazardous air pollutant for which he intends
to establish an emission standard ... It 31 and "...proposed regulations
establishing emission standards ... " for the pollutants on the list. 32

113

The emission standards are to be established "...at the level which...

provides an ample margin of safety to protect the public health from
such hazardous air pollutant." 33 They apply to both new and existing

sources.

Of importance to this study is the fact that Emissions of naturally

occurring radiation from activities such as phosphate mining and coal-

fired industrial facilities are not presently covered by an Emission

standard. A proposed standard for naturally occurring radiation, though,

is being studied by the EPA (see part D.5.c. of this report).

4. State Implementation Plans (Section 110)

The mechanism for achieving the ambient air quality standards (and
all other provisions of the CAA) is the state implen-entation plan (SIP). 34

Although the NAAQS are set by the federal EPA, the prink-ay responsibility

for air pollution control is with the states. Each state is to formulate

a state implementation plan "...which provides for implementation, main-
tenance, and enforcement..." 35 of air quality standards in each air

quality control region of the state. The states are divided into one

or more air quality control regions. In effect, the SIPs formalize the

control strategy(ies) to be followed by a state in achieving a NAAQS.

Measures to prevent excessive increases in future emissions are required

so as to insure that the NAAQS are maintained and that significant de-

terioration of air quality in areas cleaner than required by the NAAQS

is prevented.

Each state must provide for the attainment of primary standards

within three years of EPA's approval of the state plan, and secondary
standards within a "reasonable time." 36 To insure attainment and main-

114

tenance of primary and secondary standards, the state plans are required

to include, among other things: "emission limitations, schedules, and

timetables for ccinpliance with such limitations, and other such measures

as may be necessary.... including but not limited to land use and trans-
portation controls." 37

In addition, the state plan must include a procedure "...for review

(prior to construction or modification) of the location of new sources
to which a standard of performance will apply. ,38 The purpose of this

review is to insure that the proposed source's impact on air quality

does not interfere with the attainment or maintenance of the NAAQS or

other ambient air quality goal.

W-dle the Clean Air Act places the primary responsibility on the

states to develop air pollution controls through its SIP, the Act re-

quires the Administrator of EPA to prepare an implementation plan, or

portions thereof, for a state if:

the state fails to submit an implementation
plan for any national ambient air quality
primary or secondary standard within the
time prescribed; the plan, or any portion
thereof .... is determined by the Adminis-
trator not to be in accordance with the
requirements of this section; or the state
fails ... to revise an implementation plan
as required...."/39

Once the standards and implementation plans are in effect, EPA is
required to oversee the state's enforcement. 40 W-iile most of the re-

sponsibility for enforcing air pollution requirements, including emis-

sion limitations, does remain at the state and local level, if a state
fails to act, EPA itself way step in to enforce abatement. 41

It is important to note that as a planning process, the SIPs are

dynamic and require constant review to insure they are up-to-date and

115

flexible. The Clean Air Act, as well as EPA's implementing regulations

concerning SIPs (40 C.F.R.52) include important provisions for reviewing,

updating, and changing SIPs to accannodate changing social, economic,

demographic, and technological conditions. Such changes will be made

to the extent that they are consistent with the Act's essential goal

to achieve air quality levels consistent with the protection of the pub-

lic health and welfare within realistic time frames and to preserve the

nation's air resources.

C. Land Use and Siting Implications of the Clean Air Act

1. Background

Public agencies and private industries involved in the planning,

licensing, and/ or operation of energy facilities (nuclear and non@-

nuclear), as well as other major stationary sources of air pollution,

should be aware of the land use implications of the CAA. Certain pro-

visions of the Act and the implementing regulations may have significant

land use implications, particularly in polluted areas and in areas of

the U. S. with air cleaner than national standards. These impacts are

especially important with respect to energy facility siting.

The significant provisions of the Act, which may affect land use

include:

1) those defining the meaning of "significant deterioration" of

air quality in areas which presently have relatively pure air (40 C.F.R.

52.21);

2) those defining new source perfoimiance standards, which deter-

m.ine the arnount of pollution that new facilities, such as factories or

.116

pao-er plants can emit (40 C.F.R. 60); and

3) those providing for approval of "indirect sources" -- facili-

ties which are not themselves polluters, but attract large volumes of

traffic (40 C.F.R. 52.22).

The national ambient air quality standards establish a minimum

requirement for the nation's air quality. Operating alone, it seem

that these ambient standards would tend to induce the polluting sources

to locate in areas with relatively clean air so as to minimize the cost

of pollution abatement. This incentive to locate away frcm existing

industrial and/or polluted areas is at least partially offset by the

new source performance standards and the significant deterioration

regulations.

The existing new source performance standards require 19 categories

of new or modified stationary sources, regardless of location, to employ

a very high level of pollution control. The use of the uniform standards

of performance for the new sources insures that the cost of pollution

control is not affected by location. Thus, the incentive to locate in

clean air areas is significantly reduced. The new source performance

standards are to insure that new sources do not interfere with any

region's attainment or maintenance of air quality standards.

2. SIPs and Significant Deterioration

Primary and secondary air quality standards were established to

mark the concentration of pollutants beyond which human health (primary)

and welfare (secondary) are endangered. Certain areas of the country,

houever, enjoy better air quality than that required by these national

standards. On November 9, 1972, the EPA disapproved all state inple-

117

mentation plans insofar as they failed to provide for the Prevention

of significant deterioration of existing air quality. This action was
in response to the ruling in Sierra Club v. Ruckelhaus 42 .that no state

could permit significant deterioration in areas where air quality is

already cleaner than that required by ambient standards. EPA was re-

quired to publish regulations incorporating the District Court's opinion
into state mplementation plans. 43

This ruling emphasizes the twin objectives of the CAA - to improve

the air quality where pollution levels do not meet national standards,

and to protect the quality of the air that is already cleaner than the

national standards. In order to prevent "significant deterioration,"

the regulations separate areas of the U.S. into "classes" of different

allowable incremental increases in total suspended particulates (TSP)

and sulfur dioxide (SO2). All land areas with air quality presently
better than required by national standards for TSP and SO 2are subject
to the area classification procedure. EPA estimates that this accounts
for approximately 75 percent of the U.S.'s land area. 44

The regulations establish three classes of areas. Each class is

associated with a different incremntal allowance in levels of ambient

air pollution concentrations. In no case, however, can national stan-

dards on air quality be exceeded.

The classifications are based on the overall land use intended for

the area. Thus, they reflect the amount of growth and development de-

sired. The three classes are:

Class I: areas where ahnost any deterioration of current air quality

is prohibited. This classification would be used for preserving areas

118

of unusual beauty and aesthetic value -- such as the Grand Canyon.

Class II: areas where individual industrial facilities (but not

concentrated develognent) are to be located.

Class III: areas where substantial energy or industrial develop-

ment is intended. In these areas, increases in the ambient concentra-
tions up to, but not exceeding, the national standards would be allowed. 45

All areas subject to the significant deterioration regulations are

initially designated as Class II. The states (and local units of gov"

ernment) are primarily responsible for determining an area's final

classification. The regulations contain provisions allowing states to

reclassify areas to accamodate the social, economic, and enviromental

needs and desires of the public. Federal land may also be redesignated,

but only to a more restrictive classification than that provided by the
state(s) in which it is located. 46 The redesignation of federal land

cannot be proposed without consulting with officials of the affected
state(s). 47 In either case, the Administrator of EPA my disapprove a

redesignation by a state or the Federal Land Manager (on federal lands)

if it is found that the redesignation has "...arbitrarily and capriciously
disregarded relevant considerations set forth..." in the regulations. 48
The regulations 49 concerning significant deterioration only apply

to specific types of new or modified sources which have not started

construction or modification prior to June 1, 1975. The stationary

sources subject to review are the same as those subject to new source

performance standards and review.

Owners or operators of a source specified in the list (see note 38
for the ccuplete list) cannot start construction or modification 50 UrI7

119

less it is determined in a preconstruction review that:

1) the effect on air quality concentration
of the source or modified source, in con-
junction with the effects of growth and
reduction in emissions ... of other sources
in the area affected by the proposed source;
will not violate the air quality increments
applicable in any other areas; and

2) the new or modified source will meet an
emission limit-which represents that le-
vel of emission reduction which would be
achieved by the application of best avail-
able control technology (BACT) ... for par-
ticulate matter and sulfur dioxide./51

The preconstruction review of new proposed sources is to be con-

ducted by the Administrator of EPA or a regional office of EPA, or if
so delegatedby the states or local govexTmient units. 52

It should be pointed out that the above three-level classification

scheme is not absolutely binding on the states. The states retain the

option of proposing alternative methods as long as they are adequate to

prevent significant deterioration. The AAninistrator 6f EPA has strongly

encouraged the states to accept delegation of the responsibility for

carrying out the new source review procedure under these regulations,
or to develop their own procedure. 53

The regulations concerning significant deterioration will have

substantial impacts on local land use planning and zoning. The signifi-

cant deterioration regulations are designed to inject the consideration

of air quality into land use decisions. The regulations are not intended,

however, to mandate that land use decisions be based solely on air quality.

The regulations provide that it is the responsibility of the states and

local goverment units to review land use decisions and determine whether

or not the air pollution by@products of the decision (for instance,

120

greater emissions) %rill interfere with the attainment or maintenance of

air quality standards. It is expected that the regulations will have_

prime irnportance on the future development of relatively clean air areas

of the U.S.,particularly as the regulations relate to potential fossil-

fuel energy development with its resultant high emission levels.

3. Review of New Stationary Sources
Section 110 of the CAA 54 requires that the SIPs include a procedure

for reviewing the location of the 19 new or modified sources for which

a standard of performance is to apply (see footnote 38 for the list of

sources). The SIP must provide adequate authority for preventing the

construction of a new source at any location, if it is determined that

such source will hinder the attainment or maintenance of a primary or
secondary standard. 55 The review of new sources is a particularly im-

portarit control mechanism. once the emissions of existing sources are

cleaned up and the NAAQS attained, new sources must be controlled to

insure that the standards are maintained.

4. New Source and Significant Deterioration Review

In the previous section on significant deterioration, it was pointed

out that the Administrator of EPA urged the states to accept the dele-

gation of authority under the significant deterioration regulations or
to develop their am similar regulations. 56 If the states accept the

delegation of significant deterioration review authority, then the new

source review procedures and the significant deterioration review can

probably be performed at the same time. The benefits of such a combined

review would include elimination of overlap (e.g. if the state prepares

121

the new source review, while the federal EPA prepares the significant

deterioration review), sin-plification of procedures for the applicant,

and the possibility of a Mre comprehensive look at the affects of the

proposed source of the area's air quality, land use, growth implications,

and energy supply. In addition, to the degree that this joint review

can be coordinated with the energy and land use-related components of

701 comprehensive plans, coastal zone management plans, and EPA Section

208TVIater Quality Management Plans (where applicable), the inpact of

a proposed source on these various interrelated variables (water quality

and quantityenergy needs and energy facility siting, desired growth

objectives, etc.) can also be assessed from a comprehensive perspective.

A joint review would be possible because the reviews are nearly

identical since the same 19 sources are covered. The basic difference

betvae-en the two reviews is in the tests required for permit approval.

Under the new source review procedures, sources must meet only the emis-

sion limitations which are part of the applicable SIP. Sources subject

to the significant deterioration review, however, must also meet an

Emission limitation consistent with the application of best available

control technology (BACT). In addition to not causing a violation of

any national standard, sources subject to the significant deterioration

procedures must not cause an applicable air quality incremant to be
exceeded. 57

5. Indirect Sources

The control orregulation of "indirect sources" may also have cork-

siderable inipacts on land use within an air quality control region. As
a result of-the court ruling in NMC v. EPA, 58 the Administrator of

122

EPA reviewed all of the SIPs and determined that no state plan con-

tained. all of the measures necessary to assure maintenance of the air

quality standards.

The Administrator determined that all SIPs wvare deficient in in-

suring maintenance of the standards -- particularly for pollutants

emitted largely by motor vehicles. As one means of correcting this

deficiency, the Administrator determined there should be a review of

"indirect" sources of air pollution in addition to the existing provi-
sions for a preconstruction review of new sources of air pollution. 59

Regulations pertaining to indirect sources w-re pranulgated on

July 9, 1974. The regulations define an indirect source as a

facility, building, structure, or installation which attracts or may

attract mobile source activity that results in emissions of a pollutant

for which there is a national standard. Such indirect sources include,

but are not limited to:

(1) highways and roads;

(2) parking facilities;

(3) retail, commercial, and industrial facilities;

(4) recreation, amusement, sports, and entertainment facilities;

(5) airports;

(6) office and government buildings;

(7) apartment and condominium. buildings; and
(8) education facilities. ,60

An indirect source, itself, does not emit pollutants, -but tends

to attract a substantial volume of mobile source activity (principally

autcmobiles) that results in emissions of a pollutant for which there

123

is a NAAQS. Thus, the primary criteria for determining what is an in7

direct source is the generation of large volumes of traffic. Presently,

energy facilities (both nuclear and non-nuclear) are not considered

indirect sources. Further, it is not expected that EPA will consider

electric paw*--r facilities for indirect source review in the foreseeable

future. Electric power facilities are generally not viewed as.signifi-
cant generators of automobile traffic. 61
EPA's regulations 62 require an indirect source review and approval

prior to construction or nodification -- if the source is likely to

generate automobile traffic above a specific nuTber of car trips per

hour or per day. EPA's authority is derived from Section 110(a)(2)(B)
of the CAA. 63 This section provides that the AAministrator of EPA shall

approve SIPs only if he determines that they include adequate measures

"...to insure the attainment and maintenance of such primary and second-

ary standards, including but not limited to, land use and transportation

controls."

Presently, the federal EPA's regulations are not being iuplemented.

EPA is, hou*--ver, working on the regulations concerning indirect sources

in the event that they are reinstated. Despite the inaction at the

federal level, there are presently several states implementing their

own indirect source reviews. Of the 16 states, 2 localities, and 2

territories with regulations pertaining to indirect source review,
approximately 10 of them are presently inplementing the regulations. 64

Since the indirect source review does not affect the siting of

electric power facilities and the regulations are presently in a hold-

ing pattern at the federal level, the land use planning inplications

124

of these regulations will not be covered in detail in this study. The

techniques offered by the indirect source regulations for reviewing and

regulating a facility based on its growth inducing potential should,

however, be kept in mind for future reference.

6. Federal, State, and Local Air Quality Planning: Preserving
Air Quality and Permitting Growth -- A Dilmma

The SIPs, through the significant deterioration provisions and

the review of new sources,have significant land use inpacts - partic-

ularly on the 19 specified stationary sources (see footnote 38 for the

list). These procedures provide for the review of a new source, before

construction or modification, to insure that its inpact on air quality

does not interfere with the attainment of the NAAQS or any other appli-

cable air quality goals (such as prevention of significant deterioration).

The provisions in the Clean Air Act requiring the SIPs to review

new sources and prevent significant deterioration (in areas presently

having air cleaner than that required by national standards) place a

substantial level of control at the state and local go@rernment level.

Many tough choices, as to which sources to permit and which to exclude,

must be made. These decisions should be made, to the greatest extent

possible, on the basis of adequate information, canprehensive planning

processes, and through cooperation with affected localities, regions

and states.

In areas having difficulty attaining the national air quality

standards, revisions of the STP are generally required. Difficult

choices as to the types of and amount of new sources to be permitted

into the region must be made to insure that the standards are attained

125

and then maintained. Areas having no substantial attainment problems

must take steps to avoid future emission increases that would violate

standards or significant deterioration increments.

The Clean Air Act provides for governmental cooperation in pollu--

tion control activities. The Act requires that "(t)he Administrator

shall encourage cooperative activities by the States and local govern-

n-ents for the prevention and control of air pollution; encourage

... uniform state and local laws relating to the prevention and control

of air pollution; and encourage- the making of agreements and compacts
65
between states for the prevention and control of air pollution."

Such cooperation will be particularly in-portant where one area under

the significant deterioration regulations is seeking to reclassify to

Class I or III. Air pollution in adjacent regions can have significant

adverse affects on a Class I area. Because of the small air quality

increment allowed in Class I areas, a source located many miles inside

an adjacent Class II or Class III area could violate the Class I incre-

nent. For instance, according to EPA, a fossil fuel power plant, just

meeting the Class II increment for S02, could -- under some rare con-
ditions -- cause a Class I violation for So2 of an area up to 60 miles
66
away -

Under the regulations for preventing significant deterioration, a

new source cannot be constructed if it would violate an air quality

increment either in the area where it is to be located or in any neigh-

boring area. Thus, when a Class I area adjoins a Class II or Class III

area, the potential growth restrictions extend uell beyond the Class I

area's boundaries. In these instances, areas within less restrictive

126

classifications should include a buffer zone to insure the protection

of the adjacent "cleaner" area. Therefore, while a Class I area may be

quite small, adjoining Class Uor Class III areas would need to cover

a substantial area to fully utilize the allotted Class II or III incre@-

nLent. In sumTary, the Class II or Class III increment can be fully

utilized only toward the area's center. At the periphery, the allowable

air quality deterioration would be dictated by the adjacent Class I area.

In these situations, siting decisions must be based on a ccniprehensive

planning process and cocperation with other states and/or adjoining

areas.

Ccmprehensive air quality planning, at the state and local levels,

can prevent a fragmented, step-by@step approach to pollutant emission

growth. For instance, the review of new sources provides a case-by-

case basis for examining the emission limitations of a single source.

The cumulative impact, though, of a group of sources, individually ap-

proved, should not be ignored. The new source review alone does not

provide adequate consideration for the small individual source's con-

tribution to overall air pollution, although the modeling does try to

account for these small sources. Even though the emissions of the small

source may be insignificant on an individual basis, the aggregate cons

tribution of these types of sources could be significant. In addition,

a source-by-source review procedure allocates the air resources on a

first-ccme, first-served basis. Once the limit is surpassed, all sources

exceeding a NAAO.S --whether desirable or undesirable to the area

must be excluded. Thus, a caTiprehensive plan that considers the impacts

of the air quality standards on the area's land use is desirable. Were

127

applicable, comprehensive plans prepared under the 701 Comprehensive

Planning Assistance Progr&n (see section v) should be coordinated

with the air quality plans. Those 701 plans with provisions for energy

facility siting and other energy-related matters will be of particular

-significance to the air quality planning process. Th the extent that

the comprehensive air quality plan specifies types of sources desired

for the area, the necessary emissions can be planned for in advance.

Thus, agencies concerned with air quality planning, as well as

the public in general, are faced with a dilemma -- how to control air

pollution while at the same time allowing for growth in a desirable

fashion. This dilemma my be of particular relevance to the entire

nuclear industry over the coming years -- particularly in the clean air

areas of the U. S. In cases where more energy is required by proposed

fossil fuel facilities that will violate the NAAQS or other applicable stand-

ards, nuclear facilities offer one energy alternative. The air pollutant

emissions from a nuclear facility are negligible compared with those of

a fossil fuel plant. Although a switch from. one type of energy source

to -another involves more than just air quality considerations -- such

as safety issues, efficiency, cost, and water requirements -- the choice

betv,Aeen nuclear and fossil fuel power facilities (particularly coal)

may become a very important issue in the near future. This issue has

already been recognized in the NRC's nuclear energy site survey which.

found that "(i)t is clearly important, both for regional and national

reasons, for Midv@est and Plains states to consider explicitly the balanc-

ing of nuclear versus coal-fired electric generating stations in the

coming decade. The importance of the trade-off in this area might,

128

indeed, be recognized legislatively." Several other examples of the

dilemma betueen controlling air pollution and maintaining desirable

growth and means of dealing with it are illustrated below.

As recognized above, air pollution agencies and the public in gen-

eral are faced with a very ocnplex dilemma which involves the attainment

and maintenance of clean air, while at the same time acccmTK)dating social

and economic demands such as housing, jobs, industrial development, and

energy. The Clean Air Act my inadvertently result in an exaggeration

of growth on the suburban-fringe areas of presently polluted areas. In

many cases, these suburban fringe areas are finding such growth very

distasteful. It seems that this growth may be partially due to the fact

that the CAA places constraints on new polluting source development both

in the highly urbanized areas (primarily due to the NAAQS) and in very

rural- areas with clean air (primarly due to the significant deterioration

policy). New sources are not allowed in an area if they would interfere

with the attainment of national air quality standards.

One response to this issue of growth is EPA's recent,ruling on an
emission "tradeoffs" 68 policy. The tradeoffs policy would establish

ways for industry to grow in areas that presently exceed the ambient

air quality standards for one or more pollutants. EPA's present regu--
lations69 concerning preconstruction review of new sources require that

new or modified sources be disapproved if they would interfere with

attaining or maintaining the air qddlity standards. The tradeoffs policy

sets the ground rules for pe = tting at least same additional growth in

these areas.

Section 110 of the CAA requires State Implementation Plans to in-

129

sure that primary national ambient air quality standards are attained

as expeditiously as practicable. Once the standards are attained, they

rrust be maintained. Since the NAAQS attainment dates have passed, or

will soon pass, and the ambient standards have not been attained in

many areas of the country, questions arise as to whether and to what

extent new sources will be permitted in non7attainment areas. The in-
terpretative ruling is in response to these questions. 70
The ruling reflects EPA's judgment "...that the Clean Air Act does

not prohibit the construction of major new sources in areas that exceeds

a National Ambient Air Quality Standard (NAAQS), provided that the net

effect of the new emissions together with reductions from existing

facilities below that required by the applicable SIP does not exacerbate

current primary (health) standard violations, hut instead contributes to

reasonable progress in attaining such standards(conmnly referred to as
tradeoffs)." 71 The conditions for allowing such new growth involve an

emission tradeoff. The new source can be permitted only if the emissions

from the new source are more than offset by a reduction in emissions from

existing facilities. Thus, reasonable progress in attaining air quality

standards from existing facilities will be made along-with some additional

growth.

For a new or modified source to be allowed to locate in an area

presently violating health standards, "the lowest achievable emission
rate" for such source would be required. 72 Thus, a new source will be

allowed into a non-attainment, area only if its contribution to the health

violation is reduced to the greatest extent possible.

The EPA ruling in no way requires a state or local ccnmR=ty to

approve a source meeting the requirements for an ezassion tradeoff.

130

Section 116 of the Clean Air Act allows states to set requirements

stricter than the minimum federal ones. The emission tradeoff concept

is viewed by EPA as one option for allowing more growth, but only at
the discretion of the state and local goverrments affected. 73

The principle behind the "tradeoff" concept has been outlined by
EPA. 74 The concept is designed to insure that emissions frcm the new

source are more than offset by en-d-ssion reductions from existing sources.

Normally, such greater reductions from existing sources would not be accomplishEd.

by the Clean Air Act. Thus, the tradeoff is not on a one-for-one basis,

since reductions must exceed the new source's emissions.

The significant deterioration regulations also impose some tough

choices on state and local agencies with respect to future growth and

preservation of air quality. Since the significant deterioration regu--

lations involve a new source review requirement, new sources can be

approved up to the point that the air quality increments applicable to

the area are exhausted. When the air quality increment is exhausted,

the area can be reclassified, if additional growth in emissions is de-

sired. The secondary NAAQS, how-ver, can at no time be exceeded.

Certainly, the significant deterioration regulations can have many

impacts on an area's land and future growth potential. Several of these

in-pacts are explored below.

A hypothetical example can be used to illustrate the land use and

facility siting implications of the significant deterioration regulations.

Take for instance, two adjacent regions, X and Y, both designated as
Class II. The concentration of pollutants (TSP and/or So 2) for area Y
is very near the established increment for Class II areas. Thus, the

131

emissions available to new polluting sources is small. Therefore, it

se6m that potential sources would tend to seek to locate in area X

(with less pollution).

In this example, it seems that area Y has several available options:

(1) if more growth is desired, area Y could seek to be reclassi-
fied to a Class III designation which would allow more ernis-
sions (either TSP or SO 2); or
(2) area Y could attempt to attract non-polluting sources of
growth. One example would include nuclear power facilities
to meet the area's energy needs, since the emissions from
nuclear sources do not significantly affect the air quality
standards.

In area X, growth could also continue up to the Class II cutoff .

Since each new polluting source permitted in the area subtracts from

the remaining increment, area X should be careful to only permit the

type of sources that are deemed the most desirable or mst necessary.

To the greatest degree possible, the decision about which sources to

permit should be based on a comprehensive air quality plan. As noted

previously, the ca-aprehensive air quality plan should try to balance

the costs and benefits (economic, environmental, social, etc.) of var-

ious types of sources - such as energy facilities -- with the future

needs and requirements of the area. If possible, air quality plans

should be coordinated with applicable HUD 701 Comprehensive Plans, EPA

Section 208 Water Quality Management Plans, and Coastal Zone Management

Plans.

One potential problem with the significant deterioration regula-

tions can be illustrated by expanding the above example. If area Y was

reclassified as a Class III, its pollutant emissions would be allowed to
increase up to the national air quality standards. 75 Intensive develop-

132

ment could occur in a Class III area. To insure that adjacent area X's

air quality is not degraded, new sources in Y would have to locate near the

center of the Class III area. In addition, strict development controls

in the periphery areas adjacent to Class I or Class II areas would be

necessary. The basic problem is that air pollution does not recognize

political boundaries. While the regulations provide a procedure for

area Y to reclassify frcxn Class II to Class III, this change cannot be

allowed to adversely affect adjacent areas with more restrictive classi-

fications.

The provisions for prevention of significant deterioration can

have a potentially important impact on fossil-fuel energy development

- particularly in the clean air areas of the U.S. Future increases in

domestic energy production through increased utilization of our natural

fossil-fuel supplies will significantly affect the growth and development

in extraction and energy production areas. Growth associated with these

activities (extraction and power production) has the potential to cause

violations of the NAAQS and significant deterioration increments. This

is due to the fact that in the clean air areas rated as Class I -- very

little growth in pollutant emission would be allowed. In Class II areas,

well-controlled and managed graw-th would be permitted up to the Class II

increment, but intensive development would not be allowed. The problem

for future fossil-fuel pouler is that these facilities produce large

amounts of pollutants. Nuclear power facilities, which do not adversely

affect air quality, are me example of an alternative energy source.

133

D. Other Provisions of the Clean Air Act and Significant Issues

1. Energy Supply and Envirom-ental Coordination Act76 (ESBCA)

The energy crisis has led to a close scrutiny of the Clean Air Act.

In general the CAA influences the generation of electricity through the

significant deterioration and new source review regulations by regulating

the emissions frau fossil fuel po%er plants. Thus, the Act directly

affects the siting of these and other facilities.

To comply with mbient air quality standards, many states had

directed power plants to use cleaner, low sulfur fuel (oil, gas, and

coal) to minimize emissions. The switch to clean fuels re-

quires very little modification of a plant's operation or hardware.

The availability of these fuels is, however, rapidly decreasing.

In reaction to the oil embargo of 1973-1974, Congress passed the

Energy Supply and Environmental Coordination Act (ESECA) in June of

1974. The ESECA mandates the implementation of a national program to

conserve petroleum products and natural gas by increasing the use of

coal or other.fuels by the major fuel consumers.

The ESECA requires the Federal Energy Administration (FEA) to

direct power plants to switch fran oil or gas to coal in certain cases.

The conversion to coal must be practical, coal must be available, and

plant reliability must not be impaired. Before an FEA order becomes

effective, EPA must be consulted. EPA is to insure that the conversion

meets certain air pollution requirements. The EPA can extend compliance

deadlines set by the CAA to allow a power plant to convert to coal only
under certain conditions. These conditions 77 are:

the use of coal will not violate any primary air quality standard;

134

if a plant is located in an Air Quality Control Region where the

primary standards for any pollutant are being violated, the plant must

be able to meet state emissions limitations established for that pollu-

tant;

if the burning of coal will result in the increase of any pollu7-

tant for which no standards exist but which way threaten public health,

EPA can force cancellation of the FEA order after the ccmpliance date

has been set. The ESECA requires that all plants converted to coal

carply with state emissions limitations no later than January 1, 1980.

This ccmpliance may necessitate the installation of expensive equipment.

.If these conditions are not met, the compliance deadline can not be ex--

tended.

2. Section 116 and Section 118 of the CAA

Section 116 of the Act provides for federal enforcement if neces-

sary. The Administrator has the authority to force a violator to comply

with the requirements of a state implementation plan or the Administra7-
tor may bring a civil suit against the violator. 78 on the other hand,

if the Administrator finds that the state is failing to enforce the

plan effectively, he can, after notifying the state and giving public

notice, enforce any requirement of the state's plan "by issuing an order
-to ccoply with such requirement" 79 or "by bringing a civil suit.... ,80

It is also important to point out that each state retains the
right to set standards stricter than those set by EPA. 81 Section 118

also provides that federal facilities are subject to the federal, state,
interstate, and local air pollution requirements. 82

135

3. Citizen Involvement in the CAA

The CAA also provides for strong public involvement. The "citizen
suit" provision 83 of the CAA provides that suits may be brought against

any person (including the United States, its agencies, and any state or

local government instrumentality) alleged to be in violation of an emis-

sion standard or limitation or a compliance order issued by the Admin-

istrator of EPA if EPA has not already commenced a civil enforcenent
action under � 113. 84 Additionally, an action may be brought against

the Administrator himself where he is alleged to have failed to perform,

any non-discretionary duty under the statute. This provision's purpose

was to encourage, as well as to supplement, federal,and state efforts
at enforcement. 85

4. EPA/HuD Agreement

Although not a provision of the Clean Air Act, a recent EPA/HUD

agreement is relevant to the workings of the SIPs. The agreement pro-

vides that local agencies preparing ccnraunity development plans in or-

der'to comply with the HUD 701 CaTprehensive Planning Assistance Program

must allow local air quality agencies the opportunity to review the plans

for consistency with the SIPs. On the other hand, local air quality

agencies must allow local community development agencies to review the

SIPs for consistency with the corresponding land use provisions in the

comprehensive plan.

The agreement states that "neither HUD nor EPA will approve a land

use element (of a comprehensive plan) or a land use related provision of

a SIP, respectively, unless "an cpportunity for local plan review is

afforded. The Office of Management and Budget's A-95 clearinghouse

136

procedure will be used in making the review. 86

E. Control of Radioactive Emissions

1. Introduction

.It is iirportant to note for the purposes of this study that

there seems to be a long-term and growing concern over the harm,that

may be caused by radiation. EPA has the authority to protect the

public health and the enviromnent fran adverse effects due to

radiation exposure. At present, EPA's emphasis on controlling

radiation exposure is focused on two source areas: nuclear energy

applications and naturally occurring radioactive materials. Each of

these types of sources of radiation will be discussed with reference

to the EPA/NRC interaction and the possible planning implications

of controlling this radiation.

2. Nuclear Energy Facilities

The radiation control problems resulting fran nuclear electric

power generation requiring evaluation and control include not only

those due to nuclear reactors, but also uranium milling conversion,

enrichment, fuel fabrication, fuel reprocessing, waste disposal,

and all transportation of radioactive materials. The projected growth

in the number of these facilities by the year 2000 increases the need

for adequate controls to govern their design, construction and

operation. Presently, there are 56 nuclear reactors and 53 other fuel
87
cycle facilities in operation. By the year 2000, however, EPA

estimates that there will be 500 nuclear reactors and 175 other fuel

137

cycle facilities operating in the United States alone. Such an

increase in facilities carries with it the increased likelihood

of population exposure to radioactive materials released --- into the
88
environment.

EPA has identified three major ways in which people and the

environment may be exposed to radiation from all phases of nuclear

power generation:

"l) Planned releases of radioactive material to air and
water as part of the routine operation of the facility.

2) Accidental releases which have a low probability of
occurrence but high environmental and public health
consequences.

3) Leakage of long-lived waste materials caused by
accidents or inadequate environmental barriers." 89

Each of these is discussed briefly below.

a. Planned Releases

EPA states that it is "...technologically unfeasible to produce

nuclear energy without discharging some small quantities of liquid
90
and gaseous material to the environment." With the projected

growth in the number of facilities, the probability that some members

of the population will be exposed to planned radioactive releases

from these facilities increases. In order to aid in the protection

of the population, EPA has the authority to establish "generally

applicable standards" for the protection of the environment from radio-

active material. This authority was transferred to the EPA by the
91
Reorganization Plan of 1970. "Standards" as referred to in the

138

reorganization plan 11 ... means limits or quantities of radioactive

material, in general environment outside the boundaries of locations
92
under the control of persons possessing or using radioactive material."

Presently, EPA is involved in setting proposed standards for operations

in the uranium fuel cycle, "...to (i)nsure that population exposure from

planned releases of radioactive effluents is limited to 25 millirem per

year to an individual in the general population, regardless of the number

of facilities impacting on him. This standard also sets a limit on the

quantity of long-lived radionuclides that may be emitted in order to
93
prevent a buildup of these substances in the environment."

The NRC has the authority to implement and enforce the standards

set by EPA for operations in the uranium fuel cycle. NRC does this

through its licensing of individual facilities. EPA is to assure

that the standards are being complied with.

b. Accidental Releases

Nuclear power generation involves some risk of accidental re-

lease of radioactivity. The possibilities of this risk are the sub-

ject of much debate among proponents and opponents of nuclear power.

The NRC regulates engineering design, facility siting and plant

operations to minimize risk from accidental releases. The E2A's ob-

jectives are to minimize the probability of accidents and to minimize
94
population exposure to those accidents that do occur.

C. Radioactive Waste Management

MAle a small amount of radiation is released into the air and

139

water (planned releases), the bulk of the radioactive by-product is

collected and retained. This remaining waste must then be disposed

of through the use of environmental barriers, and other containment

methods. EPA is responsible for setting standards which must be

met in connection with waste management activities. These standards

are to be coordinated with ERDA, NRC, and the U.S. Geological Survey
95
(USGS).

d. Naturally Occurring Radioactive Materials

Presently, naturally occurring radioactive materials represent

the largest single source of population exposure to radiation. For

instance, many industries mine and process raw materials containing

significant concentrations of uranium, thorium, and their products.

These industries include phosphate mining, and other types of mining

industries, as well as oil shale development and geothermal energy

production.

EPA asserts that these radioactive materials can affect man and

the environment in four ways:

"First, gaseous and particulate radioactive materials
are released to the air, becoming available for human
inhalation. Second, the radioactive materials fran
the ores or the associated by-products can enter ground
and surface waters by effluent discharges, land runoff,
and leaching frcin waste piles. Third, an effect is
caused by the close contact of workers with the radio-
active material. Fourth, a potential impact is con-
tamination of the food chaint which may result in man's
ingestion of radioactive materials." 96

EPA groups the problems involving naturally occurring radioactive

materials into three categories:

140

"1) Structure related sources, such as construction materials
and building sites.

2) mineral mining, milling, and utilization sources such
as phosphates, rare earths, copper and titanium, and

3) energy-related sources, such as coal, oil shale, geo-
thermal, uranium, and thorium. mining and milling." 97

Natural radiation sources account for approximately 60% of the total

exposure received by the U.S. population. Although much of the ex-

posure to natural radiation is unavoidable, control of the activities

that redistribute natural radionuclides into the enviroment could re-
98
duce some of this exposure. It is EPA's objective to minimize popu-

lation exposure to these sources of radiation. There is, however,

no comprehensive Federal program directed to control naturally

occurring radiation. EPA, through its federal guidance function is,
99
however, mandated to address this issue.

EPA is presently preparing a legislative initiative giving the

agency the authority to Protect the public health and the environment
from the adverse effects of naturally occurring radioactive material.
This proposal would authorize EPA to promulgate standards for the

develOFVent Of acceptable State programs for controlling radionuclides
100
from. natural sources.

3. Summary

EPA has the authority to set generally applicable environmental

standards for radioactivity from activities in the uranium fuel

cycle. These standards appear to be a cross between the national

ambient air quality standards and the point source standards

established under the Clean Air Act. It is important to point out,

141

however, that these standards are prcmulgated pursuant to the
101
Atomic Energy Act of 1954, not the Clean Air Act.

The possibility of establishing a NAAQS for radiation,

through the provisions of the Clean Air Act, is of direct significance

to this study. one recent ruling, Train v. Colorado Public Interest
102
Research Group, Inc. found that the Federal Water Pollution

Control Act Amendments of 1972 do not remove the NMC's authority

over nuclear materials in nuclear power facility effluents. In light

of this ruling, it seems that the Clean Air Act could be interpreted

to recrulate only naturally occurring radiation--radiation that is not
103 104
from "source materials", "special nuclear materials", or "by-
105
product materials". The above ruling, however, my not apply to the

Clean Air Act, particularly in view of the ruling in NRDC v.
106
Train requiring the Administrator of EPA to establish a NAAQS if a

pollutant is found to meet the specified conditions for such a

standard. The conditions of � 108(a)(1)(A) and (B) of the CAA for

establishing a NAAQS are--that it has an adverse effect on public

health and welfare, and that the presence of the pollutant in the am-

bient air results from numerous or diverse mobile or stationary sources.

If radiation is found to meet these conditions, a NAAQS must be es-

tablished. A national ambient air quality standard for radiation

would affect not only sources involving naturally occurring radiation,

but also nuclear power facilities and possibly the manufacture and

testing of nuclear weapons.

142

CAA

Footnotes

1. 42 U.S.C. 1857 et seq., as amended (hereinafter cited as CAM.

2. "Environmental Protection Agency Transition Papers to Incoming
Carter Administration on Areas of Agency Jurisdiction", En-
vironment Reporter, Vol. 7, No. 36, 1/7/77, p. 1289 and PP.
1307-1308.

3. Id., pp. 1307-1308.

4. NRDC v. Train, No. 76-6075 (2d Cir., Nov. 10, 1976).

5. U.S. Nuclear Regulatory Ccamission, Nuclear Energy Center Site
Survey (1975), Vol. IV, p. 3-32., January 1976.

6. CAA, 109.

7. Id., 111.

8. Stationary sources are defined as "...any building, structure,
facility, or installation which emits or may emit any air
pollutant", CAA, 5 111(a)(3).

9. CAA, 112.

10. Id., 110. Id.

11. Ambient refers to the outdoor air (atmosphere). Thus, ambient
standards are limits on the amount of pollutant permitted in a
region's air.

12. CAA, � 109 (a) (1) .

13. Id. , 9 1.09 (b) (1) .

14. Id., � 109(b)(2).

15. Council on Environmental Quality (CEQ), Seventh Annual Report,
p. 254, 1976.

16. CAA, � 110 (a) (2) (A) (i) .

17. Id. , 9 110 (a) (2) (A) (ii) .

18. Id. , 9 111 (b) (1) (A).

19. Conservation Foundation, A Citizens Guide to Clean Air, p. 42.

CAA 1

20. CAA, 111 (a) (1) .

21. Id. , 111 (b) (1) (A) .

22. Id., 111(c)(1).

23. Id.

24. Id., (c)(2)

25. Id., (d)(1).

26. Id.

27. Id. , (d) (2) (A).

28. Id. , (d) (2) (B) .

29. Id. , 112 (a) (1) .

30. Id.

31. Id. , 112 (b) (1) (A).

32. Id. , 112 (b) (1) (B) .

33. Id.

34. CAA, 9 110.

35. Id. , 110 (a) (1) .

36. Id.

37. Id., S 110(a)(2)(B).

38. Id., � 110(a)(2)(D). The sources subject to the new source
review requirements are:

1) Fossil-fuel steam electric plants of more than
1000 million B.T.U. per hour heat input

2) Coal cleaning plants

3) Kraft pulp mills

4) Portland cement plants

5) Primary zinc smelters

CAA 2

6) Iron and steel mills

7) Primary aluminum ore reduction plants

8) Primary copper smelters

9) municipal incinerators capable of charging
more than 250 tons of refuse per 24 hour day

10) Sulfuric acid plants

11) Petroleum plants

12) Lime plants

13) Phosphate rock processing plants

14) By@product coke oven batteries

15) Sulfur recovery plants

16) Carbon black plants (furnace process)

17) Primary lead smelters

18) Free conversion plants

19) Ferroalloy production facilities commencing
construction after October 5, 1975.

Note: these sources are also subject to the significant
deterioration regulations.

@.The Conference Report on the Clean Air Act Amendments of 1976
(Septerber 30, 1976), added 9 additional sources to the above list.
It would be reasonable to assume that the list of 19 sources
will be increased in the near future.

39. CAA, � 110 (c) (1) -

40. Id. , SS 113 (a) (1) and (2).

41. Id. , S 113 (a) (2).

42. Sierra Club v. Ruckelshaus, 344 F.Supp. 253 (1972).

43. CBQ, Sixth Annual Report, p. 50.

CAA 3

44. "Envirornental Protection Agency Transition Papers to Incoming
Carter Administration on Areas of Jurisdiction." Environment
Reporter, Vol. 7, No. 36, 1/7/77, p. 1292.

45. Id.

The standards for significant deterioration are:
Pollutant Increments (U/m 3 )

I II III Class III Ceiling

TSP annual 5 10 - 60
24 hr. 10 30 - 150

S02 annual 2 15 - 80
24 hr. 5 100 - 365
3 hr. 25 700 - 1300

46. CAA, S 52.21(c)(3)(iV).

47. Id. , (c) (3) (iv) (b) .

48. Id., (c)(3)(vi)(a) and (b).

49. 40 C.F.R.-� 52.

50. Modification of the source is not subject to these regulations
if (1) such modification does not involve the amount of sulfur
oxides or particulate matter emitted or (2) if the source is
modified in order to utilize an alternative fuel, or higher
sulfur content fuel.

51. 40 C.F.R. � 52.21(d)(2)(i) and (ii). "Best Available Control
Technology" (BACT) is defined as equivalent to the new source
performance standards promulgated under �111 of the Clean Air
Act (42 U.S.C. � 1857c-6). If no standard of performance has
been promulgated for a source, best available control tech-
nology is determined on a case-by-case base. (40 C.F.R. � 52.
01(f) (1975)).

52. 40 C.F.R. � 52.21(f)(l)-(4).

53. Comments on 40 C.F.R. � 52, Federal Register, Vol. 39, No. 235,
(December 5, 1974), p. 42512.

54. CAA, � 110(a)(2)(D).

CAA 4

55. Id., S 110(a)(4).

56. 40 C.F.R. S 52.21(f)(l)-(4), and comments on 40 C.F.R. S 52,
Federal Register, Vol. 39, No. 235.

57. Id.

58. 475 F.2d 968, D.C. Cir. (1973).

59. Conversation with Jane Mitchell, Air and Waste Management,
U.S.E.P.A., Washington, D.C., January 18, 1977.

60. 40 C.F.R. S 52.22(b)(1)(i).

61. Conversation with Jane Mitchell, Air and Waste Management,
U.S.E.P.A., Washington, D.C., January 18, 1977.

62. 40 C.F.R. � 52.22.

63. CAA, � 110 (a) (2) (B) .

64. Supra, note 59

65. CAA, � 102(a).

66. U.S.E.P.A. office of Transportation and Land Use Policy "Guide-
lines on Reclassification of Areas Under EPA Regulations to
Prevent Significant Deterioration of Air Quality," June 1975,

67. U.S. Nuclear Regulatory Commission, Nuclear Energy Center Site
Survey (1975), Vol. IV, p. 3-32, January 1976.

68. Coments on Interpretative Ruling for-Implementation of the
Requirements of 40 C.F.R. 51.18. December 21, 1976, Federal
Register, Vol. 41, No. 246, pp. 55524-55527.

69. 40 C.F.R. 51.18.

70. Supra, note 68.

71. Supra, note 44, at p. 1302.

72. Supra, note 68, at p. 55528.

73. Id.

74. Supra, note 44, at p. 1302.

CAA 5

75. Supra, note 66, at p. 27.

76. 15 U.S.C. SS 791-798.

77. CAA, S 119(d)(2)(A), (c)(2)(C), and (d)(3)(B)(iii).

78. CAA, S 113(a)(1).

79. Id., (a) (1) (A) .

80. Id., (a)(1)(B).

81. Id., 116.

82. Id., 118.

83. Id., S 304.

84. Id., S 304(b)(1)(B).

85. Id., (a)(2).

86. HUD/EPA agreEment. (Nov. 1, 1976).

87. U.S.E.P.A. Office of Radiation Programs, "Radiation Protection
Program Strategy" (Draft), p. 7.

88. Id., p. 8.

89. Id.

90. Id.

91. 5 U.S.C. App. 11; 35 F.R. 15623, 84 Stat. 2086.

92. Id.

93. U.S.E.P.A. Office of Radiation Programs, supra note 87 at P. 8.

94. Id.,p. 9.

95. Id.,P. 9-10.

96. Id.,p. 13.

97. Id.

98. Id.

99. Id.

CAA 6

100.- "Envirorznental Protection Agency Transition Papers to Inccming
Carter Administration on Areas of Jurisdiction.." Environment
Reporter, Vol. 7, No. 36, 1/7/77, p. 1289.

101. 42 U.S.C. H 2011 et. seq. (1970).

102. Train v. Colorado Public Interest Research C3roup, Inc.,
U.S. 6 EIR 20549.

103. These are the raw nuclear materials essential to the production
of fissionable ("special") nuclear materials, 42 U.S.C. � 2014
W -

104. These are substances capable of sustaining a chain reaction
and thus usable as nuclear fuel, 42 U.S.C. � 2014(aa).

105. These are materials yielded in or made radioactive incident
to production or use of special nuclear materials, 42 U.S.C.
S 2014(e).

136. INRDC v. Train, No. 76-6075, (2nd Cir., Novenber 10, 1976).

CAA 7

V. Housing and Urban Development (HUD) 701 Comprehensive Planning
Assistance Program

A. Overview

The "70111 program has been the major source of federal financial

support for comprehensive planning. The program began in 1954 as sec-
tion 701 of the Housing Act of 1954.1 Funds from the 701 program have

financed the comprehensive planning activities of various state, multi-

state, metropolitan, regional, and local. gavernmental planning bodies.

The 701 program seeks to aid in the establishment of comprehensive

planning processes to guide rational decision-making. 701 funds way

be used for undertaking activities necessary to:

1. 11 [ s] upport and strengthen overall goverra-tental capability
of state-and- local governments... 11;

2. "[d]evelop energy conservation measures and facility
siting plans...";

3. " [d] evelop, and carry out a c-cWrehensive plan...

4. "[d]evise ny_@s for obtaining effective citizen
involvement... "; as well as other objectives,/2

Although the 701 program has been in existence for over twanty years,
the 1974 Amendments3 to the Housing Act, for the first time, required the

planning process to result in a tangible product. Now the ongoing com-

prehensive planning process must result in the preparation of a land use

element. This is of particular inportance to this study. The required

land use element is to include: " [ s] tudies , criteria, standards, and

implementing procedures necessary for effectively guidinq and controlling

major decisions as to where grawth,shall take place" and " ... general

plans with respect to the pattern and intensity of land use- for residen-
tial, commercial, industrial, and other activities. ,4 After August 22,

143

1977,. no 701 plaming funds will be available unless the requirements

of the land use elen-L-nt are satisfied.
Participation in the 701 program is voluntary.5 Although finan-

cial assistance to state and local goverrmental units for developing

an ongoing camprehensive plaming process is provided, the program

provides no regulatory controls. Thus, the implementation of the com-

prehensive plan is dependent upon existing state and local regulatory

tools. The 701 funds may, hDwever, beterminated if adequate progress

toward implementing the plan is not demonstrated.

144

B. Provisions of the 701 Cariprehensive Planning Assistance Program
of Interest to the Nuclear EMlatcry Commission

1. Introduction

The primary objectives of the 701 Comprehensive Planning Assistance

Program are to assist grant recipients in:

1. developing and improving the overall gave=nental capability
of state and local governments. This task would include ef-
forts to "[i]n-prove public service productivity... ; modernize
state and local government institutions... ; use natural re-
sources wisely... ; and develop a policy-planning@evaluatiop/6
capacity. 11/7

2. addressing special problems or opportunities including:
"[p1lanning for the recovery frcm and to lessen the impact of
f loods and other natural or man-caused incidents; developing
energy 'conservation, measures to reduce energy consumption and
to assist communities facing substantial impact due to ex-
ploitation of energy resources situated within or adjacent to
the commanity; and planning for adequate energy'supplie8,and
siting of necessary supporting facilities./8 (emphasis added)

3. developing coordinative mechanisms to facilitate planning on
a unified basis for states, metropolitan and non-metropolitan
areas, counties, municipalities and Indian tribal groups or
bodies./9

4. developing and carrying out a comprehensive plan which con-
siders energy and enviromental needs and impacts and includes:
"the development of land use plans... ; the development of
housing plans... ; and public facility, utility, recreational,
conservation, and other plans and regulatory measures to
achieve state and local goals and objectives."/10 (emphasis
added)
Eligible applicants 11 for 701 grants include "...a state, large

city, urban county, locality, areawride planning organization, or Indian

tribal group or body." The Governor or chief executive may designate

one or more agencies to undertake the comprehensive planning and man-
agement assistance in whole or in part. 12

Recognizing the need to coordinate 701 activities with other fed-

eral assisted programs, thd Housing and amunity Development Act of

145

1974 states that:

The Secretary shall consult with the heads of
other federal departments and agencies having
responsibilities related to the purposes of
this section including-the protection and
enhancement of the Nation's natural environment
with respect to (1) general standards, policies,
and procedures to be follovx_@d in the adminis-
tration of this section and (2) particular grant
actions or approvals which the Secretary believes
to be of special TxTt-erest or concern to one or
more of such departments and agencies. ./13 (em-
phasis added)

To seek greater coordination, interagency agreements have been

signed between HUD and the Department of Interior (for its outdoor

recreation program), the Federal Energy Administration (FEA), the En-

virorraental Protection Agency (EPA) (for its water and air quality

planning programs) and the Office of Coastal Zone Management (NOAA,

Department of Commerce).

2. Comprehensive Planning

Each recipient of 701 planning assistance nust develop an "on-

going comprehensive planning process." The regulations define "ongoing

comprehensive planning process" as "...a process-that involves the

development and subsequent modification of a comprehensive,plan and
provides for at least biennial review of the elements thereof... " 14

(emphasis added). At a minimum, the ccmprehensive plan 11 ... shall in-

clude a housing element and land use element." The elements are to be

consistent with each other and with the stated national growth policy

objectives. According to the regulations, -'[tlhe elements shall specify

broad goals and annual objectives (in measurable terms wherever possible);

programs designed to accaqDlish the objectives; and procedures, including

146

criteria set forth in advance, for evaluating programs and activities
15
to determine whether the objectives are being met.,, (errphasis added)

701 grants will not be made to any applicant after August 22, 1977,

unless the applicant has satisfied the requirements of the housing and
laril use elements requixed in the comprehensive planning process. 16

According to the notice "Land use and Housing Elements Guidelines,"
published Febnkary 1, 1977, 17 ,[o]n a tuu year cycle, each grantee (plan-

ning agency) is to review and update its comprehensive plan and evaluate

progress in meeting the planning objective's set for itself." These re-

view and evaluation aspects of the corrprehensive plan provide an opportu-

nity for those interested in the plan, including applicants to NRC for

licenses to construct or operate nuclear facilities'. to participate in

the plan's evolution.

a. Land Use Element

The requirement that the comprehensive plan include a land use

element is of particular inportance to this study. The intent of the

land use element is "...to enable states, units of general local govern-

ment and areawide planning organizations to integrate all existing land

use policies and functioning planning activities impacting land use and

to involve Federal, State, and otIier public agencies charged with signi.-

ficant functional planning or land management responsibilities in the

develoFment of the land use element required ... as part of the cornprehen-
sive plan.1118 The integrated land use policies and plans of a State,

unit of general local goverment and areawide planning organization should

be prepared to "...serve as a guide for Federal, State, and local govern-

147

mental decision-making on all matters related to the use of land, includ-

ing, for example, air and water quality concer7is, waste disposal, trans-

POrtati0n, Protection Of Control ElreaSr open Space, agriCultUral food

and fibex production, environmental conservation, develcpment., and
housing. 1119

A further objective of the required land-use element is to strengthen

the coordination of land use policies among the various levels of govern.--
ment. To aid in this coordination, the regulations 20 provide that "re-

cipients will have latitude to develop the land use element in a form

which will allow them to meet the requirements of other federal programs

requiring ccmparable land use elements or caTiponents thereof."

In response to these regulations, HUD's Office of Cammmity Plan-

ning and Developnent(the 701 office) has signed interagency agreements

with the Office of Coastal Zone Management and EPA which are designed

to facilitate the coordination of land use policies and the preparation
of land use plans. 21

Pursuant to HUD's 701 regulations prcrmlgated February 1, 1977,

each recipient of HUD 701 comprehensive planning assistance is to sutmit

a summary statement containing a brief description of how each of the

requirements of the land use and housing elements are satisfied. The

statement is to include a description of and citation to other federally

supported plans and program documents which are used to satisfy all or
a portion of the 701 land use and housing elements. 22 It seems that

these other plans and program documents would include, among others,

those being implemented pursuant to the Coastal Zone Management Act of

1972, as amended; U-p- Clean Air Act of 1970, as amended; and the Federal

148

Water Pollution Control Act Amendments of 1972. The summary

statement is also to determine if the required housing and land use ele-
ments are consistent with each other. 23

In addition, HUD's 701 regulations provide that recipients of com-

prehensive planning assistance who have completed one or more of the plans

required urder the federal planning programs (listed below), must assure

that the land use related provisions of such plans and the land use and/or

housing elements prepared to fulfill the 701 program's requirements are

consistent with one another. If such assurances cannot be made, these in-

consistencies mast be identified and steps taken to eliminate them. More-

over, recipients who are preparing, but have not completed plans required

under the federal planning programs, must assure that such plans and the

701 land use and/or housing elements will be made consistent with each
other. 24 The federal planning programs to be included are:

1. Comprehensive Management Program of the Coastal Zone Management
Act of 1972, as amended;

2. Areawide Waste Treatment Management Planning Assistance Program
(208) of the Federal Water Pollution Control Act Amendments of
1972;

3. State Implementation Plan (SIP) Progrcam of the Clean Air Act,
as amended;

4. Outdoor Recreation Program, land and Water Conservation Fund
Act of 1965, as amended.

The land use element also permits a recipient "...to address other

significant land use problems which it determines to be of priority con-
cern.... ,25 Thus, the state and local recipients of HUD 701 funds have

sufficient latitude to prepare plans suiting their needs and to insure

that these plans are coordinated with other Federal, State or local

planning requirements.

149

To assist states, areawide organizations, cities, and counties in

satisfying the land use element (and housing element)'of the cornprehen-

sive plan, HUD has issued a notice on "Land Use and Housing Element
Guidelines." 26 This notice provides examples of the types of activities

which may be undertaken to satisfy the statutory requirements of either

element. The examples provided do not change or add any requirements

to 24 C.F.R. Part 600. Moreover, the notice points out the "HLJD Regional

Office decisions to approve or disapprove land use and housing elements

will be.based on applicable requirements in 24 C.F.R. Part 600 and not these
guidelines. "27

b. The HUD 701 Camprehensive Planning Assistance Program and
Energy@Related Considerations

One of the objectives of the 701 Comprehensive Planning Assistance

Program is to assist recipients in planning for adequate energy supplies
and siting of necessary support facilities. 28 Another objective of the

program involves the devel opment of energy conservation measures to re-
duce energy consumption. 29 Finally, as part of the on-going camprehen-

sive planning process, energy and environmental needs and impacts are
to be considered. 30

To carry out the above objectives and as part of the ccmprehensive

planning process, the development of " ... energy conservation measures

and facility siting plans to provide for the rational development of
areas urpacted by new energy extraction efforts or related activities" 31

is an eligible activity under the 701 program.

Iii preparing the required land use element, the 701 grant recipient

is permitted to add ess significant land use problems of priority concern.

150

Many of the problem which can be addressed in the land use element can

affect energy facility siting and future canmniity growth. These include:

� Projections of land use needs and land resource deve1cpmerit
including energy facilities-siting,needs-/32 (emphasis added)

� Identification of public facilitiesl utilities, ...arxi other
services required to support projected uses of land,/33
(emphasis added)

� The impact of the recipient's proposed policies (including
tax policies) ...on aix and water quality, coastal zone
management, waste disposal, areas of critical concern,
-availability of and need for conserving naturalresources
ergy ., and disaster miti on activities,-/34 (emphasis
added)

� 'Distribution of growth including possible locations for new
communities, large scale projects and key facilities,-/35
(emphasis added)

� The conservation of energy through land use strategies designed
to reduce energy consumption and the development of policies
designed t-o--Ya-cilitate the recovery of energyIresources in a
manner compatible with envirornental protection and future reuse
of lands;/36 (@-Y @hasi@s added) and

� The effect of major federal activities on State, areawide, and/or
local planning and development./37 (emphasis added)

Recent demonstration projects, jointly funded by the HUD 701 pro-

gram and FEA and/or OC2;M, illustrate ways in which these energy and

growth concerns are being addressed. One such project, funded by HUD

701 funds and FEA, is being prepared by the Mid-Atlantic Governors Coordi-
nating Resources Council (@JAGCRC) . This council is composed of the states of New

York, New Jersey, Delaware, Maryland, and Virginia. The study is de-

signed to assist the states in developing a coordinated response to the

impacts resulting fran offshore exploration and production activity.

This project includes tasks to: "assess institutional systems and roles

at all levels, develop a decision flow chart for significant and local

information needs and management decisions relating to offshore resource

151

exploration activities from 1975 to 1985, and determine siting require-
ments and impacts of offshore develoFments." 38 A sintilar study is being
prepared by the State of California. 39 A third demonstration project is

ongoing in Utah. The Utah study, "A Guide to Decision-+Iaking for the

State of Utah" is designed ".-to enable State and local officials to con-

sider the long-range impacts and implications of energy projects ... including

trade-offs, benefits and costs, priorities of projects, and responsibilities

40
for action.

Other energy-related considerations are also of increasing concern to

state and local goverrynents. HUD 701 assisted comprehensive plans are not

specifically required to be coordinated with the issuance of Certificates

of Public Convenience and Necessity or licenses for the construction or

operation of among others, nuclear power facilities. However, comprehen-

sive plans should consider these licenses and the effects they my have

on the area. Predicted growth in electric power facilities, transmission

lines, and other supporting facilities should be reflected in the compre-
hensive plans. 41 Although not.required by HUD in approving the plans,

the coordination between the comprehensive plans and licenses for energy

facilities can be important. This type of coordination would enable the

required land use elements to address, in a knowledgeable fashion, impor-

tant variables such as the projection of land use requirements for energy

facility siting. On the other hand, electric utility companies and

regulatory agencies could review the comprehensive plan's projections;

of land use to discuss the proposed policies' in-pact on energy require-

ments in the area. The regulatory agencies (such as NRC and FPC) could

require that applicants for a license coordinate their activities and

152

future plans, to the. greatest possible degree, with the declared plans

and policies of the applicable units of government.

Another means of coordinating ccniprehensive plans with the needs of

electric facilities (particularly with respect to siting) would include

the review of HUD 701 plans by State Powax Camnissions or Public Utility

Camissions. Although this has generally not been done, the means for

achieving such coordination do exist. The requirement for 701. plan review

%uuld have to be established by a regulatory agency (such as FPC or NRC)

or by the State (the Governor or the legislature) --depending on the type
of action required. 42

Finally, HUD 701 money can be used to coordinate regional and multi-

state systems. Examples of multi-state systems which receive. HUD 701

funds are the Appalachian Regional Ccmission, and the Mid-Atlantic state

governments (NACOW.) preparing the demonstration project assessing the
OCS impacts on the states. 43

C. Shortcomings of the Present HUD 701 program

In the 1970's, the HUD 701 program has been plagued with insuffi-
cent funding and lack of priority with HUD. 44 At the same time, many

federal programs affecting state and substate governmental activities

have created an even greater need for planning coordination among the

various levels of goverment, particularly in the area of land use

planning. These state and substate agencies have increasing needs for
planning assistance. 45

Another serious shortccming of the program is the lack of regula-

tory pour-rs to aid in iTrplen-enting and enforcing the plan once it is de-

velcped. The regulations pertaining to the required land use element

153

discuss the implementation of plans, 46 but provide no mechanisms that

specifically tie land use plaming to a regulatory or any other type
of implementation scheme. 47

Although HUD 701 plans lack formal implementation provisions, irrt--

plemen tation can sometimes be achieved indirectly. The 701 regulations

provide several provisions vbich seek to coordinate 701 planning with

other federal program requirements. For instance, eligible acti7vities

for 701 comprehensive.planning include to: "[mleet and carry out other

HUD or other federal program objectives or requirements including but

not limited to:

(1) Ldlevelcgnent of housing assistance plans required by
Title I and Title II of the Housing and Ccmmuiity De-
velopment Art of 1974;

(2) [n1ew ccnmmnity planning;

(3) [p]reparation of flood control studies and flood plain
management measures to meet the standards for elibibi-lity
under the National Flood Insurance Program;

(4) [d]isaster mitigation and hazard reduction planning; and

48
(5) [slupport for national growth and urban develoEment objectives.

The first four of these categories are other HUD program with

objectives closely related to those of the 701 program. The last cate-

gory is broad enough in scope to include national objectives under

other federal programs, such as the coastal zone management progran,

the clean air program and Section 208 of the Federal Water Pollution

Control Act. Another section of the regulations permits the development

of the land use element "in a form which will allow them to meet the

requirements of other federal programs requiring ccniparable land use
elemmts or ccoponents thereof." 49 As discussed in part B.2.a, Land

154

Use Element of this study, the HUD-EPA and HUD-<)CZM agreanexits are de-

signed to insure this. Thus, x4iere the land use element is developed

concurrently or is the same as portions of a 208 (water quality manage-

ment plan), state implementation plan (SIP), or a state coastal zone

management plan, the implementation or regulatory provisions of those

Acts (EUIPCA, CAA, CZMA, respectively) may insure greater conformity with

701 objectives.

In the absence of a connection to the implementation requirements

of other federal planning programs (or state/local/regional programs),

the 701 plan is implemented on a discretionary basis by the state and

substate participants in the program.

Basically what all this means is that wnile 701 comprehensive plans

can plan for energy facilities and siting, energy conservation,l.distri-

bution of growth, and other energy"related considerationst the HUD 701

program requires no positive mechanisms to insure that the plans are

implemented. Thus, while a coauminity my have the best of plans, iin-

plementation is not a requirement of federal.law.

d. Other Aspects of Coordination: HIJD 701 Comprehensive Plans
and A-95 Review

The purpose of Circular A-95 is to serve as a guide to 11 ... federal

agencies for cooperation with state and local governments in the eval-

uation, review, and coordination of federal and federally assisted pro-
grams and projects." 50 To insure intergoverrmental cooperation and re-

view of planning and management programs proposed for assistance, all

applicants for 701 comprehensive planning grants (except federally

recognized Indian tribes) "...are required to notify the State and

regional or metropolitan clearinghouse (A-95) of the intent to suhmit

155

an application to HUD or to the State for comprehensive planning
assistance.1151

The A-95 review process established by the Office of Management

and Budget (OMB) seeks to further the policies and directives of Title
IV of the Intergovernmental Cooperation Act of 1968, 52 implement the

requirements of Section 204 of the Demonstration Cities and Metropolitan
Development Act of 1966, 53 and inpleweiit, in part, the requirements of
Section 102(2)(c) of the National Environmental Policy Act of 1969. 54

Section 401(c) of the Intergovernmental Coordination Act requires

that: "to the maximum extent possible, consistent with national objec-

tives, all federal aid for urban development purposes be consistent with

and further the objectives of State, regional, and local carprehensive

planning.

Section 204 of the Demonstration Cities and Metropolitan 5evelcpment

Act requires that all applicants for federal loans or grants to assist a

variety of activities such as public works planning, construction activi-

ties, and open space land acquisition in metropolitan areas, must be

acccnpanied by the comments of an official State or regional planning

agency with respect to the relationship of the proposed project to camr-
prehensive planning in the area. 56

The A-95 clearinghouse review must also include assurances, pursuant

to the National Environmental Policy Act of 1969, 11 ... that appropriate

State, nulti-state, areawide or local agencies which are authorized to

develop and enforce environmental standards are informed of and given

opportunity to review and ccon-ent on the environmental significance of
proposed projects for which federal assistance is sought." 87 CAlso see

the section of this study on NEPA).

156

CMBIs Circular A-95 is the product of efforts to implement the

authority contained in the above-Acts. Under the present Circular's

Project Notification and Review System, applicants for federal assist-

ance under programs on the A-95 AttacInent D list must provide the

appropriate A-95 "clearinghouse" agencies (usually state or regional

-planning agencies) with a description of the project for which assist-

ance is sought. The clearinghouses then identify state and local agen-

cies and jurisdictions which might be affected by the project, and notify

them of the application. After a thirty day ccment period, the appli-

cant may submit its application, together withany written comments re-

ceived, to the funding agency. The federal agency then informs' the

clearinghouses of its action, and if it approves an application for which

a. clearinghouse has reccnmended disapproval, the funding agency must state
its reasons for doing so. 58 In addition, agencies undertaking direct

federal development projects are required to consult with state officials

and clearinghouses early in the planning stages, and to "assure that any

such federal plan or project -is consistent or ccnipatible with State,

areawide and local development plans and programs identified in the course
of such consultations. `59

For example,, the summary statement prepared for the land use and/or

housing elements is to be submitted for review and comaient to the appli-

cable state and regional or metropolitan clearinghouses simultaneously

with the submittal to HUD. Each clearinghouse has a maxin-um of 45 days
to provide ccmnents on the summary statement to HUD. 60

The A-95 process provides a means for reviewing and coordinating

energy-related aspects of ccrnprehensive plans. The inipacts of the plans

157

on other areas, energy proj ections and needs, population growth, and other

considerations can be brought out into the open. It must be recognized,

however, that A-95 constitutes only a procedural mechanism for inter-

governmental review and coment, and once ccnplied with, federal agencies

are free to disregard any coni-nents received. Nevertheless'. A-95 does

provide an knportant, means by which ccrnprehensive planning under 701

may be integrated with other governmental planning policies.

158

HUD

Footnotes

1. Housing Act of 1954, 68 Stat. 590, 40 USC 461 (1965) P.L. 83-
560.

2. 24 C.F.R. S 600.55(a),(b),(c), and (e).

3. Housing and Conurunity Development Act of 1974, P.L. 93-383.

4. Id. , S 7 01 (c) (2) .

5. Participation in the Coastal Zone Management Program is also
voluntary. State participation in the programs mandated by
the Clean Air Act, and the Federal Water Pollution Control
Act is required.

6. "Policy-planning-evaluation" is defined in the regulations as
the analytical ability to identify problems and needs in a more
rational manner, set long-term policy goals and short-term
policy objectives to meet these needs, to devise programs and
activities to meet the policy goals and objectives, and to
evaluate the progress towards meeting the goals and objectives.
(24 C.F.R. 600.7(K).

7. 24 C.F.R. �600.5(a)(l)-(4).

8. 24 C.F.R. �600.5(b)(4). Note those regulations provide for
planning "for adequate energy supplies and siting of necessary
supporting facilities." While this provision is not included
within the statutes or in the legislative history, Mr. Melvin
Wachs (of the Department of Housing and Urban Development's
701 Comprehensive Planning Assistance Program) feels that such
planning for energy siting is within the authority of a com-
prehensive plan.).

9. 24 C.F.R. 9600.5(c).

10. Id., (d) (l)-(3).

11. Id., �600.35.

12. Id.

13. BCDA �401(k).

14. 24 C.F.R. �600.7(j).

15. Id., �600.67(b).

HUD 1

16. Id..,� 600.67(c). (See Section 600.70 pertaining to the housing
-6-lement and Section 600.72 pertaining to the land use element.)
The housing and land use requirements are not applicable to
applicants who have never received a comprehensive planning
grant (other than a special needs grant pursuant to �600.50).

17. "Land Use and Housing Element Guidelines." Federal Register,
Vol. 42, No. 21, Z/1/77, p. 6098.

18. 24 C.F.R. �600.72(a).

19. Id.

20. Id.

21. The HUD-EPA (� 208) agreewent was signed on March 24, 1975.
The HUD-,OCZM agreement was signed on February 19, 1975.

22. 24 C.F.R. S 600.73(a)(b) and -(c). (February 1, 19771).

23. Id., (c)(1).

24.. Id. , (c) (6) (i) - (iv) .

-25. Id., � 600.72 (a) .

26. "Land Use and Housing Element Guidelines," supranote 17.

27. Id., Part I.

28. 24 C.F.R. � 600.5(b) (4).

29. Id., � 600.5(b) (3).

30. Id., � 600.5(d).

31. Id., � 600.55(b).

32. Id., S 600.72(a) (2).

33. Id., � 600.72 (a) (4) .

34. Id., � 600.72(a)(5).

35. Id., � 600.72 (a) (6)

36. Id., � 600.72(a)(7).

37. Id., � 600.72(a)(8).

HUD 2

38. Conversation with Dr. Melvin Wachs, 701 Comprehensive Planning
Program, Office of Comprehensive Planning and Development,
HUD, January 24, 1977 and La2id Growth from Energy Projects,
Ideas for State and Local Action: A Program Guide. 701 Couprehensive
Planning Program in cooperation with the Federal Energy Adminis-
tration, March 1976, p. 10.

39. Rapid Growth from Energy Projects, Ideas for State and Local
Action: A Program Guide. - HUD, Office of Ccnuunity PlEi@g
and Development, 701 Comprehensive Planning Program in co-
operation with the Federal Energy Administration, March 1976,
P. 11.

40. Id.

41. Conversation with Dr. Melvin Wachs, 701 Comprehensive Planning
Program, Office of Comprehensive Planning and Development, HUD,
January 24, 1977.

42. Id.

43. Id.

44. The FY 1977 budget 'for the HUD 701 program is $67.5 million, but
only $25 million of that was originally proposed. Again this
year, former President Ford's proposed FY 1978 budget appropri-
ates $25 million for the program. HUD 701 staff are hoping for
a final FY '78 budget of $50-75 million. For contrast, the
FY '69-70 budgets were $100 million. (In today's dollars, this
figure would have to be inflated).

45. During 1974, the President ordered HUD to undertake a major
initiative to coordinate the nearly three dozen separate Federal
planning assistance programs. [Environmental Quality, Sixth An-
nual Report; Council on Environmental Quality, December 1975,
p. 182.1 Partially in response to this order, the HUD 701 pro-
gram began entering into interagency agreements to coordinate
funding and planning requirements.

46. For instance, States and area-wide planning organizations are
to include in their land use element "-procedures that will
facilitate the achievement of land use objectives." (24 C.F.R.
� 600.72(b)(4).) Further, each applicant is required to "...
describe the current status of land use related planning (e.g.,
coastal zone arrangement, air and water quality, transportation,
solid waste planning, etc.) and related implementation activities
within the applicant's planning jurisdiction and the relation-
ship of the proposed program to past and current local, area-
wide, and state planning and implementation efforts and how the
applicant will satisfy the land use requirements of this

HUD 3

section..." (24 C.F.R. � 600.72(d).)

47. This distinguishes the HUD 701 program from the other three
Federal planning programs discussed in this report. The CAA,
FWPCA, and CZMA provide regulatory tools to assist in the
inplementation of plans.

48. 24 C.F.R. S 600.55(h).

49. Id., � 600.72(a).

50. Ccuuents on Circ. A-95 (revised) 41 F.R. 2052 (Jan. 13, 1976).

51. 24 C.F.R.,� 600.160(a).

52. 42 U.S.C. 4231.

53. 42 U.S.C. 3334.

54. 42 U.S.C. 4332.

55. 42 U.S.C. 4231(c).

56. 42 U.S.C. 3334.

57. Circ. A-95, (revised); 41 F.R. 2052, Attachnent A, Part I (1)(C)
(Jan. 13,1 1976).

58. Circ. A-95, (revised); 41 F.R. 2052 (Jan. 13, 1976).

59. Id., Attachment A, Part II.

60. 24 C.F.R. � 600.73(e)(2).

HUD 4

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