FEDERAL LAND MANAGERS' AIR QUALITY RELATED VALUES WORKGROUP (FLAG)
PHASE I REPORT
(December 2000)

Appendices

B. Legal Framework for Managing Air Quality and Air Quality Effects on Federal Lands

The regulation of air pollution sources has clearly been delegated to EPA, and as applicable, the States. However, Federal Land Managers (FLMs) have the responsibility to protect the particular values of the lands over which they have jurisdiction, to the extent they have been delegated the authority, from the adverse impacts of activities inside and outside these areas.

This Appendix sets out the basic legal authorities and responsibilities with which the FLMs comprising FLAG must comply, in addition to those authorities which they can utilize to protect AQRVs on public lands.

For the purposes of this Appendix only, the term "public lands" is defined to include units of the National Park, National Wildlife Refuge, and National Forest Systems.

This Organic Act is very specific in that it mandates national park unit managers:

[T]o conserve the scenery and the natural and historic objects and wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

16 U.S.C. §1(1997); and

[T]he authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided for by Congress.

16 U.S.C. § 1a-1 (1997)

With respect to National Wildlife Refuge System lands (Refuge System lands under the jurisdiction of the United States Fish and Wildlife Service (FWS), FWS managers are required to manage Refuge System lands so to:

[E]nsure that the biological integrity, diversity, and environmental health of the System are maintained for the benefit of present and future generations of Americans.

16 U.S.C. §668dd(a)(4)(B)(1997)

National Forest System lands are defined as:

[A]ll National Forests reserved or withdrawn from the public domain of the United States, all national forests acquired through purchase, exchange, donation, or other means, all national grasslands and land utilization projects...and all lands waters, and other interests administered by the Forest Service.

16 U.S.C. §1609(a)(1997)

The Forest Service's Organic Administration Act of 1897 directs the Secretary of Agriculture to:

[M]ake provisions for the protection against destruction by fire and depredations upon the public forests and national forests...

16 Sec. §551(1997)

The National Forest units are managed consistent with Land and Resource Management Plans (LRMPs) under the provisions of the National Forest Management Act (NFMA). 16 §U.S.C. 1604 (1997). Any measures addressing AQRVs on National Forest System lands will be implemented through, and be consistent with, the provisions of an applicable LRMP or its revision (16 U.S.C. §1604(i)).

The Secretary of Agriculture is required by law to prepare a Renewable Resource Assessment by 1979, and every 10 years thereafter. By law this Assessment is required to address:

3. A description of Forest Service programs in research, cooperative programs and management of the National Forest System, their relationships, and the relationships of these programs and responsibilities to public and private activities; and

5. An analysis of the potential effects of global climate change on the condition of renewable resources on the Forests and rangelands of the United States; and

6. An analysis of the rural and urban forestry opportunities to mitigate the buildup of atmospheric carbon dioxide and reduce the risk of global climate change.

16 U.S.C. §1601(a) (1997)

In addition, the Secretary of Agriculture is required to prepare and transmit to the President, a Renewable Resource Program (the Program) every 5 years. This Program must include program recommendations which recognize the fundamental need to protect, and where appropriate, improve the quality of ... air resources. 16 U.S.C. §1602(5)(C).

The Forest Service's implementing regulations for NFMA are found at 36 C.F.R. §219 et seq. LRMPs are, in part, specifically based on:

[R]ecognition that the National Forests are ecosystems and their management for goods and services requires an awareness and consideration of the interrelationships among plants, animals, soil, water, air, and other environmental factors within such ecosystems.

36 C.F.R. §219.1(b)(3)

AQRVs in Wilderness areas may receive further protection by the language of the Wilderness Act itself which states:

Wilderness areas... shall be administered for the use of the American people in such a manner as will leave them unimpaired for future use and enjoyment as wilderness .... (16 U.S.C. Sec. §1131).

For Wilderness Areas in the National Forest System, the Act's implementing regulations are found at 36 C.F.R. §293. These Wilderness Areas shall be administered:

...[For] such other purposes for which it may have been established in such a manner as to preserve and protect [their] wilderness character. In carrying out such purposes, National Forest Wilderness resources shall be managed to promote, perpetuate, and, where necessary, restore the wilderness character of the land...

36 C.F.R. §293.2 (1997)

Because of a perceived need for national and regional air quality research to support State programs, Congress passed its first federal air quality initiative in 1955. (Air Pollution Control Act of 1955, ch. 360, 69 Stat. 322). In response to increasing harm to public health and welfare and to inadequate controls and enforcement, Congress has slowly but steadily expanded and refined the law, now known as the Clean Air Act (CAA), to cover more types of pollutants and emitters; e.g., stationary and mobile sources of pollution. These efforts have culminated in the 1990 Amendments to the CAA, which represent the most comprehensive and detailed set of measures to date to both prevent and curtail air pollution.

The declaration of purpose, as revised in 1990 states in part:

The purposes of this subchapter are: to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population.

42 U.S.C. § 7401(b)(1); and

A primary goal of this Act is to encourage or otherwise promote reasonable Federal, State, and local government actions, consistent with the provisions of this Act, for pollution prevention.

42 U.S.C. §7401(c)

The CAA provides an additional legal framework for FLMs to preserve and protect AQRVs from pollution sources emanating both within and outside National Park, Forest, and Refuge boundaries.

A. National Ambient Air Quality Standards (NAAQS) and State Implementation Plans (SIPs): The CAA establishes a regulatory program with the goal of achieving and maintaining "national ambient air quality standards" (NAAQS) through state or, if necessary, federal implementation plans (SIPs or FIPs).¹

The U.S. Environmental Protection Agency (EPA) is charged with promulgating:

1. "primary" NAAQS for "criteria" pollutants "to protect the public health," allowing an adequate margin of safety;" and
2. "secondary" NAAQS "to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air."²

The above secondary standards may help protect public land AQRVs.³ To date, EPA has promulgated NAAQS for six criteria pollutants: sulfur dioxide, particulate matter, nitrogen dioxide, carbon monoxide, ozone and lead. In July of 1997, EPA issued revised, and more stringent NAAQS for ozone and "fine particulate matter" to address human health concerns. However, EPA openly acknowledged that these revised NAAQS were not fully adequate to protect the above "secondary" values, in particular those sensitive AQRVs on public lands.

The CAA, as amended in 1977, includes the following major purposes regarding the "prevention of significant deterioration" (PSD) provisions:

[T]o protect public health and welfare from any actual or potential adverse effect . . . from air pollution . . . notwithstanding attainment and maintenance of all national ambient air quality standards.

42 U.S.C. § 7470(1)

[T]o preserve, protect, and enhance the air quality in national parks, national wilderness areas, national monuments, national seashores, and other areas of special national or regional natural, recreational, scenic, or historic value.

42 U.S.C. §7470(2)

The PSD section provides some protection for park and wilderness AQRVs through establishment of ceilings on additional amounts of air pollution over baseline levels in clean air areas (increments). It requires EPA or the State to provide to the FLM notice of any proposed major emitting facility⁴ whose emissions may affect a Class I area (42 U.S.C. §7475(d)(2)(A), and also by charging:

[T]he Federal Land Manager ¹ and the Federal official charged with direct responsibility for management of such lands with "an affirmative responsibility to protect the air quality related values (including visibility) of any such lands within a class I area and to consider, in consultation with the Administrator, whether a proposed major emitting facility will have an adverse impact on such values."

42 U.S.C. §7475(d)(2)(B).

Class I areas include national parks larger than 6,000 acres and national wilderness areas and national memorial parks which exceed 5,000 acres, in existence on August 7, 1977. The 1990 Amendments provided that subsequent additions to the boundaries of such areas are also Class I areas. Currently, 48 areas in the National Park system, 21 Refuge System units, and 88 areas under the administration of the Forest Service are designated as Class I.

Under the PSD provisions and implementing regulations (40 C.F.R. §51.166(p)), for Class I areas, once baseline concentrations come under review by submission of a PSD preconstruction permit application for a major new or modified emissions source, only the smallest increment of certain pollutants -- sulfur dioxide, nitrogen oxide and particulate matter -- may be added to the air by the proposed new source, and other "increment consuming" sources.

Under the PSD provisions a FLM has several tools he/she may use to protect AQRVs.

A state may not issue a PSD permit to allow construction or modification of a major emitting facility when the applicable Federal Land Manager files a notice alleging the facility may cause or contribute to a change in the Class I area's air quality and by identifying the potential adverse impact of such a change, unless:

The facility owner demonstrates that the facility's emissions of particulate matter, sulfur dioxide, and nitrogen oxides will not cause or contribute to concentrations which will exceed the maximum allowable increases for that Class I area.

42 U.S.C. §7475(d)(2)(C)(i)(paraphrased) and 42 U.S.C. §7476.

Even if no increment violation is predicted,

[T]he state may not issue a PSD permit, if the Federal Land Manager demonstrates to the satisfaction of the State that the emissions from such facility will have an adverse impact on the air quality-related values (including visibility) of Class I lands.

42 U.S.C. §7475(d)(2)(C)(ii)(paraphrased)

Neither the CAA nor the implementing regulations specify criteria for the FLM to "satisfy" state permitting agencies. Consequently, some states have taken a liberal view of their discretion to reject an FLM's adverse impact determination. However, EPA's Environmental Appeals Board (the Board) has ruled that state discretion in rejecting a FLM's finding of adverse impacts is not "unfettered" (see the Board's decisions regarding the permit appeals for the Old Dominion Electric Cooperative and Hadson Power projects in Virginia). Nevertheless, the appropriate role of the FLM in the PSD permit process is currently being addressed in EPA's proposed New Source Review Reform regulations. The final regulations are expected to be promulgated in 2001.

The Visibility portion of the CAA:

"… [D]eclares as a national goal the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution."

42 U.S.C. §7491(a)(1).

To help carry out this goal, the Secretaries of the Interior and Agriculture are charged with identifying Class I areas where visibility is an important value. EPA is charged with reporting to Congress on methods to implement the national goal and with promulgating regulations to ensure reasonable progress toward meeting the goal.

In 1980, EPA issued enforceable regulations for visibility impairment "reasonably attributable" to a specific source or small group of sources. In particular, major stationary sources emitting any pollutant which may "reasonably be anticipated to cause or contribute to any impairment of visibility" is required to install best available retrofit technology (BART). In addition, in April 1999 EPA promulgated final regulations addressing regional haze. The regional haze rule protects air quality in Class I areas by requiring States to plan to achieve "natural" visibility conditions over a 60-year timeframe.

The 1990 Amendments add a new section on visibility, which authorizes EPA in conjunction with NPS and other federal agencies, to conduct visibility research and to evaluate clean air corridors and emissions sources and source regions causing visibility impairment in Class I areas. In this regard, EPA was required to establish the Grand Canyon Visibility Transport Commission (GCVTC) by 1991 and consider the recommendations GCVTC would make (42 U.S.C. §7492(f). NPS, FS, FWS, and BLM played a vital role in the work of the GCVTC and committees in an effort to improve air quality in the Grand Canyon and other parks and wilderness areas in the "Golden Circle" on the Colorado Plateau.

As part of the visibility protection process, states are required to promulgate a plan to prevent any future, and remedy any existing impairment of visibility in Class I areas… 40 C.F.R. §51.300 (1997). EPA has defined "visibility impairment" as:

[A]ny humanly perceptible change in visibility (visual range, contrast, coloration) from that which would have existed under natural conditions.

40 C.F.R. §51.301(x)(1997).7

However, EPA has promulgated its visibility regulations to allow FLMs to use their existing authorities to address "visibility impairment" (rather than "significant impairment") so that "the affected Federal Land Manager may certify to the State, at any time, that there exists impairment of visibility in any mandatory Class I Federal area." 40 C.F.R. §51.302(c).

Areas that have failed to meet NAAQS for one or more criteria pollutants are designated as "nonattainment" areas. Under the 1990 Amendments, Congress provides for further classification of nonattainment areas based on severity of the nonattainment and availability and feasibility of appropriate pollution control measures and for a compliance schedule ranging from 1993 in marginal nonattainment areas to 2010 for Los Angeles.

The 1990 Amendments authorize EPA to issue control technique guidance documents (CTGs) covering a variety of topics, such as control of idling vehicles and voluntary removal of pre-1980 model year light duty vehicles (cash for clunker programs). (42 U.S.C. §7408.) EPA is authorized to issue CTGs, in lieu of regulations, to reduce "volatile organic compounds" (VOC) emissions from any consumer or commercial product. (42 U.S.C. §7511b.)

Proposed new or modified major stationary sources within nonattainment areas are required to meet emissions limits based on "lowest achievable emission reduction" technology (LAER) and may be constructed only if their emissions are sufficiently offset by reductions in emissions from other sources. The 1990 Amendments also require analysis of alternative sites, sizes, production processes, and control techniques and a finding that the benefits of the source outweigh its environmental and social costs. (42 U.S.C. §7501-15.)

CAA Subchapter III 42 U.S.C. §7601 et seq. contains definitions, requirements for reports to Congress, authorizations for appropriations, and procedures for EPA rulemaking and judicial review. Citizen suits are authorized: 1) against EPA for failure to perform a nondiscretionary duty under the CAA, or 2) against others for alleged violations of an emission limitation, standard, or order. (42 U.S.C.§7601 et seq.)

The 1990 Amendments add Title IV, which contains requirements for electric utilities to reduce emissions associated with acid rain. To reduce the adverse effects of acid deposition, Title IV requires a reduction in annual emissions of sulfur dioxide of ten million tons from 1980 emission levels and a reduction of nitrogen oxides emissions of approximately two million tons from 1980 emission levels, in the 48 contiguous states and the District of Columbia. (42 U.S.C. §7651.) The Title creates a system of market-based emission allowances, which can be traded among sources. See (42 U.S.C. §7651a-o.)

The 1990 Amendments add Subchapter V, 42 U.S.C. §7661 et seq., which establishes a nation-wide permit program for existing stationary sources. Permit requirements will include emission limitations. EPA may veto state permits, which do not comply with provisions of the CAA. (42 U.S.C. §7661a-f.)

(Paraphrased) No federal agency may engage in, support in any way,... license or permit, or otherwise approve any activity which does not conform to an approved state (or federal) implementation plan. Conformity shall be an affirmative responsibility of the head of each agency. Conformity means:

(A) Conforming to the SIP's purpose of eliminating or reducing the number of NAAQS violations;

(B) That any such activities will not:

(i) Cause or contribute to new violations in any area; or

(ii) Increase the frequency or severity of any existing standard violation...

EPA, in its "criteria and procedures" for implementing "conformity" has decided that only those activities that "a federal agency can practicably control, and will maintain control over due to a continuing program responsibility" are subject to same. 40 C.F.R. §93.152.

Although required to comply with the conformity provisions (42 U.S.C. §7618(1997)), the FLM cannot use these provisions to protect AQRVs from adverse impacts from offsite sources.

The CAA reinforces the FLMs' Organic Act and Wilderness Act roles as protectors of AQRVs on public lands.

The CAA also imposes on FLMs an obligation to comply with the Act's many provisions regarding the abatement of air pollution to the same extent as any private person (42 U.S.C. §7418).

Thus, under various authorities, FLMs are responsible for protecting AQRVs within their respective unit boundaries and taking appropriate action to do so, when reviewing emission sources both within units, and in proximity to unit boundaries.

FLMs, under the CAA, have an affirmative responsibility for protecting AQRVs (including visibility) in reviewing proposed PSD permits. However, because of the uncertainty involved in "satisfying" State permitting agencies in the PSD process, and the appropriate delegated role for FLMs in non-PSD situations, the existing framework may provide an inadequate means for FLMs to protect AQRVs from adverse impacts caused by sources outside unit boundaries.

1) Clean Air Act, 42 U.S.C. §7401-7671q (as amended 1990).
2)Clean Air Deskbook, The Environmental Law Reporter, Environmental Law Institute, 1992.
3)Managing National Park System Resources: A Handbook on Legal Duties, Opportunities, and Tools, Chap. 4 "The Clean Air Act" by Molly Ross at pp. 51-65, The Conservation Foundation, 1990.
4)Atmospheric Environment Vol. 27B, No. 1, "The 20-Year History of the Evolution of Air Pollution Control Legislation in the U.S.A." by Richard H. Schulze at pp. 15-25.
5) Wilderness Act of 1964, 16 U.S.C. §1131 et seq, P.L. 577, 78 stat 890 as amended.
6)The Principal Laws Relating to Forest Service Activities, USDA - Forest Service ISBN 0-16-041927-1, 1993.
7) Organic Administration Act of 1897, 16 U.S.C. §473-475, §477-482, §551.