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This appendix summarizes the statutes and executive orders that may affect license renewal applications for nuclear power plants. The summary builds on the information in Section 2.3, "Plant Interaction With the Environment," and addresses the following topics: land use, water use, water quality, air quality, aquatic resources, terrestrial resources, radiological impacts, solid waste, chemical impacts, and socioeconomic factors.
The federal and state statutes and the executive orders presented in this part include
(1)statutes and executive orders that could require the Nuclear Regulatory Commission (NRC) or the applicant to undergo a new authorization or consultation process with federal or state agencies outside the NRC; or
(2)statutes and executive orders that could require the NRC or the applicant to renew authorizations currently granted or hold additional consultations with federal or state agencies outside the NRC.
This summary is provided as a general overview to assist the applicant in identifying environmental and natural resources laws that may affect the license renewal process. The summary is not intended as a complete and final list, and the applicant is reminded that a variety of additional local and regional requirements may exist for the specific plant site.
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Coastal Zone Management Act of 1972, as amended, Title 16 U.S.C. 1451, et seq.
Congress enacted the Coastal Zone Management Act (CZMA) in 1972 to address the increasing pressures of over-development upon the nation's coastal resources. The National Oceanic and Atmospheric Administration administers the Act. The CZMA encourages states to preserve, protect, develop, and, where possible, restore or enhance valuable natural coastal resources such as wetlands, floodplains, estuaries, beaches, dunes, barrier islands, and coral reefs, as well as the fish and wildlife using those habitats. Participation by states is voluntary. To encourage states to participate, the CZMA makes federal financial assistance available to any coastal state or territory, including those on the Great Lakes, that is willing to develop and implement a comprehensive coastal management program.
Water use law is dominated by state regulation rather than federal regulation.
(a)Clean Water Act, as amended, Title 33 U.S.C. 1251, et seq.
The Clean Water Act (CWA), formerly known as the Federal Water Pollution Control Act, is intended to "¼ restore and maintain the chemical, physical, and biological integrity of the Nation's water" (Section 101). The CWA has five elements: (1) a system of minimum national effluent standards for each industry, (2) water quality standards, (3) a discharge permit program that translates these standards into enforceable limits, (4) provisions for special problems such as toxic chemicals and oil spills, and (5) a revolving construction loan program (formerly a grant program) for publicly-owned treatment works.
The CWA requires the Environmental Protection Agency (EPA) to establish effluent limitations for the amounts of specific pollutants that may be discharged by municipal sewage plants and industrial facilities. The two-step approach to setting the standards includes (1) establishing a nationwide base-level treatment through an assessment of what is technologically and economically achievable for a particular industry and (2) requiring more stringent levels of treatment for specific plants if necessary to achieve water quality objectives for the particular body of water into which that plant discharges. For example, EPA sets limits based on water quality to control pollution in waters designated by the states for drinking, swimming, or fishing.
The primary method by which the CWA imposes limitations on pollutant discharges is the nationwide permit program established under Section 402 and referred to as the National Pollutant Discharge Elimination System (NPDES). Under the NPDES program, any person responsible for the discharge of a pollutant or pollutants into any waters of the United States from any point source must apply for and obtain a permit.
Section 502(6) of the CWA defines the term pollutant to include radioactive materials. In its implementing regulations (40 CFR 122 in particular), however, EPA refined the definition of pollutant to exclude radioactive materials regulated under the Atomic Energy Act of 1954 (AEA), as amended. Thus, although the CWA and its implementing regulations clearly apply to naturally occurring (e.g., radium) and accelerator-produced radioisotopes, they do not apply to source, byproduct, or special nuclear materials as defined by the AEA.
Note that, quite apart from the CWA, states may under certain circumstances exercise a limited role in the regulation of these materials. Until Section 274 was added to the AEA in 1959, states had no role in the licensing and regulation of source, byproduct, or special nuclear materials. Section 274, however, provided a statutory basis by which states could assume from NRC a measure of authority over the regulation of byproduct and source materials and special nuclear materials in quantities not sufficient to form a critical mass. To effect this transfer of authority, (1) NRC must find that the state's radiation control program is compatible with NRC's and that it is adequate to protect public health and safety, (2) the state must establish its authority to enter into an agreement with NRC, and (3) NRC must enter into an agreement with the governor of the state desiring such authority. Thus far, 29 states have entered into such agreements with NRC. Even in agreement states, however, NRC retains regulatory authority over several important areas, including construction and operation of production and utilization facilities and disposal of certain source, byproduct, and special nuclear materials [AEA, Section 274(c)].
Section 404 enables the Corps of Engineers in the Department of the Army to issue permits for the discharge of dredged or fill materials into waters of the United States at specific sites. The Corps specifies a site by applying guidelines promulgated by EPA (40 CFR 230). Further, any proposal to dump dredged or fill material into the ocean must comply with the dumping criteria set forth in Section 227.13 of the Marine Protection, Research, and Sanctuaries Act (MPRSA) regulations. Under Subsection 404(c) of the CWA, EPA can prohibit (or limit the use of) a proposed disposal site or withdraw an already designated site, under regulations codified at 40 CFR 231. This determination may occur if EPA foresees unacceptable impacts on municipal water supplies, shellfish beds, fishery areas, or wildlife and recreational areas. However, such a determination must be made after consultation with the Corps and the permit applicant.
A significant feature of Section 404 is that the Corps may issue general permits on a state, regional, or nationwide basis for dredging or fill activities that are similar in nature and cause only minimal individual and cumulative adverse impacts. General permits are granted for a period not to exceed 5 years. The Corps issues individual permits for actions that have a potential for significant environmental impacts.
(b)Marine Protection, Research, and Sanctuaries Act of 1972, Title 16 U.S.C. 1431, et seq.
The MPRSA (Pub.L. 92-532) regulates ocean dumping of waste, provides for a research program on ocean dumping, and provides for the designation and regulation of marine sanctuaries. Also known as the Ocean Dumping Act, the Act regulates the ocean dumping of all material beyond the territorial limit or 3 miles from shore and prevents or strictly limits dumping material that "would adversely affect human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities." "Material" includes (but is not limited to) dredged material, solid waste, incinerator residue, garbage, sewage, sewage sludge, munitions, chemical and biological warfare agents, radioactive materials, chemicals, biological and laboratory waste, wrecked or discarded equipment, rock, sand, excavation debris, and industrial, municipal, agricultural, and other waste. The term does not include sewage from vessels or oil, unless the oil is transported via a vessel or aircraft for the purpose of dumping. Disposal by means of a pipe, regardless of how far at sea the discharge occurs, is regulated by the CWA, through the NPDES permit process.
Some of the waste material as defined above may be transported to and dumped into the ocean under conditions stipulated in a permit issued by EPA or the Corps of Engineers, depending upon the type of waste involved. Ocean dumping, however, is only possible if no other reasonable alternatives, such as landfilling, are available.
(c)Safe Drinking Water Act, as amended, Title 42 U.S.C. 300 F., et seq.
In 1974 Congress enacted the Safe Drinking Water Act (SDWA) to manage potential contamination threats to groundwater. The act instructed EPA to establish a national program to prevent underground injections that would endanger drinking water sources. Primary drinking water standards promulgated under the SDWA apply to drinking water "at the tap" as delivered by public water supply systems.
Section 1447 of the SDWA states that each federal agency having jurisdiction over a federally owned or maintained public water system must comply with all federal, state, and local requirements, administrative authorities, and processes and sanctions regarding the provision of safe drinking water. Sections 1412, 1414, and 1445(a) of the SDWA provide drinking water regulations and specific operating procedures for public water systems.
Public water systems, as defined in 40 CFR 141.2, provide piped water for human consumption and have at least 15 connections or regularly serve at least 25 people. Public water systems are either
(1)community water systems, that is, public water systems that serve at least 15 connections used by year-round residents or regularly serve at least 25 year-round residents; or
(2)non-community water systems, all other water systems (e.g., campgrounds and gas stations).
On July 8, 1987 (FR 52, 25690), EPA amended 40 CFR 141.2 to add a definition of a "non-transient non-community water system" as a public water system that is not a community water system but that regularly serves at least the same 25 people for 6 months per year (e.g., work places and hospitals).
The SDWA requires EPA to establish primary water regulations for contaminants that may cause adverse public health effects. The regulations include both mandatory levels (maximum contaminant levels) and nonenforceable health goals [maximum contaminant level goals (MCLGs)] for each included contaminant.
MCLGs have extra significance because they can be used under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as amended by the Superfund Amendments and Reauthorization Act (SARA) as applicable or relevant and appropriate requirements in national priorities list cleanups.
Clean Air Act, as amended, Title 42 U.S.C. 7401, et seq.
On November 15, 1990, President Bush signed into law sweeping revisions of the Clean Air Act (CAA). The new law contains titles that
The CAA Amendments will have far-reaching effects not only on environmental activities at federal facilities, but also on procurement, maintenance, and motor vehicle operation activities.
The original 1970 CAA authorized EPA to establish National Ambient Air Quality Standards (NAAQS) to limit levels of pollutants in the air. EPA has promulgated NAAQS for six criteria pollutants: sulfur dioxide, nitrogen dioxide, carbon monoxide (CO), ozone, lead, and particulate matter. All areas of the United States must maintain ambient levels of these pollutants below the ceilings established by the NAAQS; any area that does not meet these standards is a "nonattainment" area (NAA).
The 1990 Amendments require that the boundaries of serious, severe, or extreme ozone or CO NAAs located within metropolitan statistical areas (MSAs) or consolidated metropolitan statistical areas (CMSAs) be expanded to include the entire MSA or CMSA unless the governor makes certain findings and the administrator of EPA concurs. Consequently, all urban counties included in an affected MSA or CMSA, regardless of their attainment status, will become part of the NAA.
Under previous law "major sources" were those with the potential to emit more than 100 tons per year (tpy). The CAA Amendments reduced the size of plants subject to permitting and stringent retrofitting or offsetting requirements. In serious ozone NAAs, "major sources" include those with the potential to emit more than 50 tpy of volatile organic compounds. In severe ozone NAAs, "major sources" include those that emit 25 tpy or, in extreme areas, 10 tpy. For serious CO NAAs, a "major source" is now one that emits 50 tpy. For serious particulate matter NAAs, a "major source" is now one that emits 70 tpy.
The new source performance standards (NSPS) set minimum nationwide emission limitations for classes of facilities. The NSPS are set at levels that reflect the degree of control achievable through the application of the best system of continuous emission reduction that has been adequately demonstrated for that category of sources. The NSPS must take into consideration the cost of achieving such emissions reductions and any non-air-quality health and environmental impacts and energy requirements.
The National Emissions Standards for Hazardous Air Pollutants aim to control pollutants that may reasonably be anticipated to result in either an increase in mortality or an increase in serious irreversible or incapacitating, but reversible, illness. Since 1970 EPA has listed only eight hazardous air pollutants and has established standards for only seven. The 1990 Amendments directed EPA to establish technology-based standards for 189 hazardous substances based on the use of "maximum achievable control technology."
Title V of the CAA Amendments established a federal permitting program, similar to the CWA permitting program, which is to be administered by the states. Title V declared that after the effective date of any approved or promulgated permit program, it will be unlawful to operate a major source, affected source, or any other source (including an area source) subject to regulation under the CAA unless the source complies with all air quality requirements and has an operating permit. Under previous federal law, construction permits were required only for new sources; existing sources were left largely unpermitted, unless the state elected to require an operating permit. The CAA Amendments eliminated the distinction between new and existing sources; all major sources are now required to have an operating permit.
The new permit program will be fee-based, and federal facilities are explicitly required to pay a fee or charge imposed by a state or local agency to defray the costs of its air pollution regulatory program. The statute sets minimum rates for such fees at $25 per ton of each regulated pollutant, up to 4000 tpy. The EPA administrator may set other amounts to adequately reflect reasonable costs of the permit program. The following sources must have a permit to operate:
(a)Fish and Wildlife Coordination Act, as amended, Title 16 U.S.C. 661-664, et seq.
The Fish and Wildlife Coordination Act (FWCA), as amended, proposes to ensure that fish and wildlife resources receive equal consideration with other values during the planning of water resources development projects. The act was passed because the goals of water-related projects (e.g., flood control, irrigation, navigation, and hydroelectric power) may conflict with the goal of conserving fish and wildlife resources. Conversely, developers can design water development projects to enhance the quality and enjoyment of fish and wildlife resources if such goals are incorporated into project plans.
The act authorizes the Secretary of the Department of the Interior (DOI) to provide assistance to and cooperate with federal, state, and public or private agencies and organizations in the development and protection of wildlife resources and habitat; make surveys and investigations of the wildlife in the public domain; and accept donations of land and funds that will further the purposes of the act.
The act requires consultation with the head of the state agency that administers wildlife resources in the affected state. The purpose of this process is to promote conservation of wildlife resources by preventing loss of and damage to such resources and to provide for the development and improvement of wildlife resources in connection with the agency action.
Although the recommendations of the Secretary of the Interior and state officials are not binding, the federal agency must give them full consideration. Furthermore, any reports and recommendations made by those officials become an integral part of any report prepared by the responsible federal agency when seeking authorization for the water-resource development project. Such a report must also include an estimate of the wildlife benefits or losses to be derived from the proposed project and a description of the conservation measures the agency finds should be adopted to obtain maximum overall project benefits.
The FWCA authorizes federal agencies to acquire lands in connection with water development projects for use in activities designed to conserve and enhance wildlife resources. These activities should be conducted in accordance with plans approved by the federal agency, the Secretary of the Interior, and the head of the applicable state agency. The report that accompanies the authorization request should describe the probable extent of land acquisition.
In other conservation provisions the FWCA authorizes the Secretary of DOI [through the Fish and Wildlife Service (FWS) and the Bureau of Mines] to investigate and report to Congress on the effects of domestic sewage; mine, petroleum, and industrial wastes; erosion silt; and other pollutants on wildlife and to make recommendations for alleviating their effects. It also directs the Corps of Engineers to consider fish and wildlife resource and habitat in its management of water levels in the upper Mississippi River.
Two general types of activities exempt from the act are (1) water impoundments with a surface area of less than 4 ha (10 acres) and (2) programs for land management and use carried out by federal agencies on land under their jurisdiction.
(b)Fish and Wildlife Conservation Act of 1980, Title 16 U.S.C. 2901, et seq.
The Fish and Wildlife Conservation Act provides federal technical and financial assistance to states for the development of conservation plans and programs for nongame fish and wildlife. The act also encourages federal agencies to conserve and promote the conservation of nongame fish and wildlife and their habitats. Conservation plans are required to identify appropriate nongame fish and wildlife species and significant problems that may adversely affect these species and their habitats. The conservation plan must also determine the actions that should be taken to conserve the nongame fish and wildlife species. The designated state agencies are expected to consult with the appropriate federal agencies during the development, revision, and implementation of the plan.
Endangered Species Act of 1973, as amended, Title 16 U.S.C. 1531, et seq.
The Endangered Species Act (ESA) originally passed in 1973. It provides for the designation and protection of invertebrates, wildlife, fish, and plant species that are in danger of becoming extinct and conserves the ecosystems on which such species depend.
The act defines an endangered species as any species that is in danger of becoming extinct throughout all or a significant portion of its range (the act excludes recognized insect pests from this definition). A threatened species is one that is likely to become endangered in the foreseeable future. The act makes it illegal for any individual to kill, collect, remove, harass, import, or export an endangered or threatened species without a permit from the Secretary of DOI. DOI's FWS performs most administrative and regulatory actions under the act. The National Marine Fisheries Service in the U.S. Department of Commerce deals with actions affecting marine species.
To be protected, a species must be listed by the Secretary of the Interior as endangered or threatened. The listing process generally begins with a petition to the Secretary. Consultation with affected states is required prior to listing, but the Secretary makes the final decision. Whenever possible, a designation of critical habitat accompanies the listing of an endangered or threatened species. The Secretary must publish and periodically update the lists and develop and implement "recovery plans" for the conservation and survival of endangered and threatened species. Recently, the American bald eagle has been removed from the list because of FWS recovery plans.
The act directs the Secretaries of Interior and Commerce to establish programs to conserve fish, wildlife, and plants, including endangered and threatened species. Also, the Department of Agriculture oversees the import and export of endangered and threatened species. Implementation of such programs usually includes acquisition of lands under the act itself and under the FWCA of 1958, as amended; the Fish and Wildlife Act of 1956, as amended; and the Migratory Bird Conservation Act of 1929, as amended.
The act mandates cooperation between the U.S. federal, state, and foreign governments. The Secretary of the Interior must cooperate with the states to acquire and manage land and has authority to enter into cooperative agreements to provide assistance to those states that establish programs for the conservation of endangered and threatened species. The President and the Secretary of the Interior may provide financial and technical assistance to foreign countries to encourage conservation of fish, wildlife, and plants. The Secretaries of the Interior and Commerce must also carry out obligations under two international agreements: the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere.
All federal agencies must utilize their authorities to carry out programs for the conservation of endangered and threatened species. Regulations promulgated under Section 7 of the act define the process whereby proposed federal actions that may affect threatened or endangered species are approved, disapproved, and appealed. In particular, "Each Federal agency shall, in consultation with and with the assistance of the Secretary [of DOI], ensure that any action authorized, funded, or carried out by such agency ¼ is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ¼ to be critical ¼ [Endangered Species Act Section 7(a)(2)]."
Occupational Safety and Health Act
The Occupational Safety and Health Administration (OSHA) of the Department of Labor is responsible for the implementation of the Occupational and Safety Health Act. The act establishes safe and healthful workplace standards. Employers who fail to comply with OSHA standards can be penalized by the federal government. The act allows states to develop and enforce OSHA standards if such programs have been approved by the Secretary of Labor.
Resource Conservation and Recovery Act of 1976, as amended, Title 42 U.S.C. 6901, et seq.
In 1976 Congress remodeled the Solid Waste Disposal Act, which dealt with the disposal of nonhazardous waste, into a major new program on hazardous waste. The Resource Conservation and Recovery Act (RCRA) outlines the framework for national programs to achieve environmentally sound management of both hazardous and nonhazardous wastes. RCRA also promotes resource recovery techniques and methods to reduce the generation of waste. The Hazardous and Solid Waste Amendments of 1984 (HSWA) both expanded the scope of RCRA and increased the level of detail in many of its provisions.
RCRA, as amended, contains ten subtitles. Subtitle C, "Hazardous Waste Management"; Subtitle D, "State and Regional Solid Waste Plans"; Subtitle I, "Regulation of Underground Storage Tanks"; and Subtitle J, "Demonstration Medical Waste Tracking Program," constitute the regulatory portion of the law. The other subtitles provide the legal and administrative structure for achieving the objectives of the law.
EPA, the Department of Commerce, the Department of Energy, and DOI all have specific responsibilities under RCRA. EPA issues guidelines and regulations for proper management of solid wastes, oversees and approves the development of state waste management plans, and provides financial aid to agencies and firms performing research on solid waste. The Department of Commerce encourages greater commercialization of proven resource recovery technologies. The Department of Energy oversees activities involving research and development of new techniques for producing energy from wastes. DOI oversees mineral waste problems, including recovery of metals and minerals and methods for stabilizing mining wastes.
Generators of hazardous waste must notify EPA that the wastes exist and require management in compliance with RCRA. Proper identification and initial management of hazardous wastes promote the success of the "cradle-to-grave" program. Generators must determine if the wastes are hazardous. If so, they notify EPA that they are managing a hazardous waste; obtain an EPA identification number for the generating facility; and verify that the transportation, treatment, storage, and disposal of the waste is conducted only by others with EPA numbers.
Generators must also prepare a Uniform Hazardous Waste Manifest to accompany shipments of hazardous waste. The manifest includes the name and EPA identification number of persons authorized to manage the waste and serves as a document of accountability to prevent improper disposal. The manifest system promotes self-enforcement of RCRA's requirements.
Under RCRA, no material can be a hazardous waste without first being a solid waste. RCRA defines a solid waste as "¼ any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial or mining and agricultural operations, and from community activities ¼ [excluding] ¼ solid or dissolved materials in domestic sewage, or solid or dissolved materials in irrigation return flows, or industrial discharges which are point sources subject to permits under Section 402 of the Federal Water Pollution Control Act ¼ . or source, special nuclear, or byproduct material as defined by the Atomic Energy Act [AEA] of 1954 ¼ [Section 1004(27)]."
RCRA then defines a hazardous waste as "a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may ¼ cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or ¼ pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed [Section 1004(5)]."
The 1984 HSWA addressed Congressional concern that inadequate or improper controls for management of hazardous waste would increase risks to human health and the environment. HSWA introduced three major changes in RCRA.
First, Congress restricted land disposal of untreated hazardous waste unless it could be demonstrated that there will be no migration of hazardous constituents from the disposal unit for as long as the wastes remain hazardous [Section 3004(d)(1)]. Second, facilities were required to adopt "minimum technical requirements" for landfills and surface impoundments to keep hazardous constituents from migrating into groundwater and to permit detection if migration occurs. Third, EPA was granted the authority to require corrective action for releases of hazardous constituents from any solid waste disposal unit at a facility seeking a RCRA
Subtitle I (implemented at 40 CFR Part 280), added by HSWA, established a program to regulate the three to five million underground storage tanks in the United States and to prevent their leaking. Under this subtitle RCRA regulates the storage of a product (e.g., petroleum products), rather than hazardous waste. In addition the substances regulated under Subtitle I include all the hazardous substances (except those regulated as a hazardous waste under Subtitle C of RCRA) defined under CERCLA. Hazardous substances under CERCLA encompass a wide variety of items regulated under other federal statutes including the CWA, CAA, and Toxic Substances Control Act (TSCA). (Radionuclides, which are specifically excluded under RCRA's definition of solid waste, are regulated under CERCLA because they are defined as hazardous air pollutants under the CAA.) Subtitle I of RCRA regulates underground storage tanks containing radioactive materials unless they are "mixed" with hazardous waste, in which case they are regulated under Subtitle C.
Federal agencies and departments that own or operate underground storage tanks are subject to and must comply with all applicable federal, state, interstate, and local requirements, except when the President determines that exemption of specific tanks from these requirements is in the "paramount" interest of the United States.
Section 3006 of RCRA authorizes states to develop and enforce their own hazardous waste programs in place of the federal program administered by EPA. Before administering any of the provisions of HSWA, authorized states must again go through the state program approval process.
Federal Insecticide, Fungicide, and Rodenticide Act, as amended, Title 7 U.S.C. 135, et seq.
The Federal Insecticide, Fungicide, and Rodenticide Act as amended by the Federal Environmental Pesticide Control Act and subsequent amendments, requires the registration of all new pesticides with EPA before they are used in the United States. Manufacturers are required to develop toxicity data for their pesticide products. Toxicity data may be used to determine permissible discharge concentrations for an NPDES permit.
Historic Preservation Requirements
Five laws, one executive order, and a Presidential memorandum have been passed during the last 75 years to help protect and preserve the nation's archaeological and historic resources.
The Antiquities Act of 1906 provided for the protection of historic and prehistoric remains and monuments on federal lands. It established a permit system for conducting scientific archaeological investigations, which could only be conducted by recognized institutions that would report results and maintain all collections for the public.
In 1935 Congress passed the Historic Sites Act that declared it was a national policy "to preserve for public use historic sites, buildings, and objects of national significance." This act extended protection to sites on both federal and non-federal lands by giving the Secretary of the Interior the authority to survey, document, evaluate, acquire, and preserve archaeological and historical sites throughout the country. It led to the creation of the Historic Sites Surveys, the Historic American Buildings Survey, and the Historic American Engineering Record (now the National Architectural and Engineering Record).
The Archaeological Recovery Act of 1960 gave DOI the major responsibility for preserving archaeological data that might be lost through federal dam construction. The Archaeological and Historic Preservation Act of 1974 amended and significantly expanded the scope of the 1960 Act by requiring preservation of archaeological data affected as a result of any federal or federally related land modification activities.
The act made the Secretary of the Interior responsible for coordinating and administering a nationwide program for the recovery, protection, and preservation of scientific, prehistoric, historic, and archaeological data that would otherwise be damaged or destroyed through federal action. This act, also referred to as the Archaeological Salvage Act or the Moss-Bennett Act, for the first time authorized up to 1 percent of the cost of a project to be transferred to the Secretary of the Interior for preserving archaeological data on federal construction projects, other than dam construction. The 1 percent limitation can be waived by federal agencies after obtaining concurrence from DOI and then notifying Congress.
The most comprehensive national policy on historic preservation was established by Congress with the passage of the National Historic Preservation Act of 1966 (NHPA). In this act historic preservation was defined to include "the protection, rehabilitation, restoration and reconstruction of districts, sites, buildings, structures, and objects significant in American history, architecture, archaeology, or culture." The act led to the creation of the National Register of Historic Places, a file of cultural resources of national, regional, state, and local significance. The act also established the Advisory Council on Historic Preservation (the Council), an independent federal agency responsible for administering the protective provisions of the act.
Two of the major provisions of the NHPA for federal agencies are Sections 106 and I 10. Both sections aim to ensure that historic properties are appropriately considered in planning federal initiatives and actions. Section 106 is a specific, issue-related mandate to which federal agencies must adhere. It is a reactive mechanism that is driven by a federal action. Section I 10, in contrast, sets out broad federal agency responsibilities with respect to historic properties. It is a proactive mechanism with emphasis on ongoing management of historic preservation sites and activities at federal facilities.
Section 106 requires that the head of any federal agency having direct or indirect jurisdiction over a proposed federal or federally assisted undertaking in any state, and the head of any federal department or independent agency having authority to license any such undertaking, must ensure that the provisions of the NHPA are administered. Section 106 also mandates consultation during such federal actions. It compels federal agencies to "take into account" the effect of their projects on historical and archaeological resources and to give the Council the opportunity to comment on such effects.
Section 110(a) of the NHPA and Executive Order (E.O.) 11593 (which was substantially incorporated into the NHPA amendments of 1980) require agencies to provide leadership in preserving, restoring, and maintaining the historic and cultural environment of the nation. The 1980 NHPA amendments expanded the NHPA of 1966 by making federal agencies responsible for identifying, preserving, and nominating to DOI all sites, buildings, districts, and objects under their jurisdiction or control that appear to qualify for listing on the National Register of Historic Places. It also required DOI to develop criteria and procedures for federal agencies to use in these reviews and nominations. As a result, both Section 110(a) and E.O. 11593 require each federal agency, in cooperation with the state historic preservation officer in the state involved, to "establish a program to locate, inventory, and nominate to the Secretary (DOI) all properties under the agency's ownership or control by the agency, that appear to qualify for inclusion on the National Register in accordance with the regulations promulgated under Section 101(a)(2)(A)."
Amendments to NHPA in 1980 also provided additional guidance and clarification to the historic preservation program. Congress gave DOI the authority to waive the 1-percent limitation on the use of project funds to defray the costs of data recovery, increased the role of the state historic preservation officer in the administration of the National Historic Preservation Program, and clarified federal agency responsibilities under E.O. 11593.
The Archaeological Resources Protection Act of 1979 was enacted to provide a comprehensive framework for protecting and regulating the use of archaeological resources on public and Indian lands protected by the Antiquities Act of 1906. The act requires that a permit be received from the federal land manager for the excavation and removal of archaeological resources on public land.
The President's 1978 Memorandum on Environmental Quality and Water Resources Management directed the Council to issue final regulations under the NHPA and directed federal agencies with water resource responsibilities and programs to publish procedures implementing the NHPA within 3 months after promulgation of the final Council regulations.
Federal agencies should coordinate National Environmental Policy Act (NEPA) compliance with the responsibilities of the NHPA to ensure that historic and cultural properties are given proper consideration in the preparation of environmental assessments (EAs) and environmental impact statements (EISs). However, agency obligations under NHPA are independent from NEPA and must be complied with even when an EA or EIS is not required. That is, for proposed projects that are not classified as major federal actions with significant environmental impacts, federal agencies must still consider impacts to historic properties and sites. Where both NEPA and the NHPA are applicable, draft EISs must integrate NHPA considerations along with other environmental impact analyses and studies. (See 40 CFR Part 1502.25.)
To coordinate the independent responsibilities of the two acts (NEPA and NHPA), federal agencies should undertake compliance with NHPA regulations as soon as it is determined that a National Register listed or eligible property may be affected by a proposed project or program.
(a) Emergency Planning and Community Right-to-Know Act of 1986, Title 42 U.S.C. I 1001, et seq.
The Emergency Planning and Community Right-to-Know Act (EPCRA), enacted on October 17, 1986, represents a significant first step toward a major federal role in areas previously regulated by state and local government. EPCRA was enacted by Congress as a stand-alone provision, Title III, of SARA.
Title III was passed in response to concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals. The disaster in Bhopal, India, in which more than 2000 people suffered death or serious injury from the accidental release of methyl isocyanate, triggered this concern. To reduce the likelihood of such a disaster in the United States, Congress imposed requirements on both states and regulated facilities. Facilities must notify the local emergency planning districts regarding materials and releases at sites.
The emergency planning aspect requires local communities to prepare plans to deal with emergencies relating to hazardous substances. The community right-to-know aspect creates new rights for members of the public and local governments to obtain information concerning potential threats in their neighborhoods involving hazardous substances. EPCRA provides the tools for local governments and members of the community to make their own decisions regarding hazardous materials in their communities.
EPCRA contains three subtitles. Subtitle A, "Emergency Planning and Notification," establishes mechanisms to enable states and communities to prepare to respond to unplanned releases of hazardous substances.
Subtitle B, "Reporting Requirements," contains three distinct reporting provisions concerning two different groups of chemical substances. The first two sets of reports require submission of inventory-related data on hazardous chemicals (i.e., those substances for which a material safety data sheet is mandated under the hazard communication regulations of OSHA). The third reporting provision requires annual reports to the EPA and to the state in which the reporting facility is located of environmental releases of listed toxic chemicals manufactured, processed, or otherwise used at the facility in excess of specified threshold quantities.
Subtitle C, "General Provision," contains a variety of general provisions, including, but not limited to, civil, criminal, and administrative penalties for violations of the statute's reporting requirements; enforcement actions that can be brought by citizens, states, and emergency planning and response entities; and restrictions on an owner's or operator's rights to make trade secrecy claims in the reports required by EPCRA.
(b) National Electric Safety Code
The National Electric Safety Code provides a comprehensive listing of criteria regarding electrical safety.
(c) Executive Order 11990, Protection of Wetlands
Executive Order 11990 was issued to avoid direct or indirect support of new construction on wetlands wherever there is a practicable alternative. Federal agencies are required to evaluate the potential effects of any actions they may take on wetlands when carrying out their responsibilities (e.g., planning, regulating, and licensing activities). However, this executive order does not apply to the issuance by federal agencies of permits, licenses, or allocations to private parties for activities involving wetlands on nonfederal property.
(d) Pollution Prevention Act of 1990
This legislation focuses on treating and disposing of waste rather than on meeting source reduction limits. The millions of tons of pollution generated each year could be reduced in a cost-effective manner through changes in production, operation, and types of raw materials used in industry. The technique of source reduction is considered fundamentally different from and more desirable than waste management and pollution control. EPA is to carry out the responsibilities set forth in this act.
(e) The Bald and Golden Eagle Protection Act
The Bald and Golden Eagle Protection Act prohibits knowingly (or with disregard for the consequences of one's actions) taking, possessing, selling, transporting, importing, or exporting the American or golden eagle, dead or alive, without a permit.
(f) The American Indian Religious Freedom Act
The American Indian Religious Freedom Act (AIRFA) clarifies U.S. policy pertaining to the protection of Native Americans' religious freedom. The special nature of Native American religions has frequently resulted in conflicts between federal laws and policies and religious freedom. Some federal laws, such as those protecting wilderness areas or endangered species, have inadvertently given rise to problems such as denial of access to sacred sites or prohibitions on possession of animal-derived sacred objects by Native Americans.
AIRFA, passed in 1978, acknowledged prior infringement on the right of freedom of religion for Native Americans. Furthermore, it stated in a clear, comprehensive, and consistent fashion the federal policy that laws passed for other purposes were not meant to restrict the rights of Native Americans. The act established a policy of protecting and preserving the inherent right of individual Native Americans (including American Indians, Eskimos, Aleuts, and Native Hawaiians) to believe, express, and exercise their traditional religions.
AIRFA is primarily a policy statement. Approximately half of the brief statute is devoted to Congressional findings. Following the Congressional findings, the act makes a general policy statement regarding American Indian religious freedom: "¼ henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right to freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites (42 U.S.C. 1996)."
The final section of the act requires the President to order agencies to review their policies and procedures in consultation with traditional native religious leaders.
(g) Native American Graves Protection and Repatriation Act
The Native American Graves Protection and Repatriation Act, enacted on November 16, 1990, established a means for American Indians, including members of Indian tribes, Native Hawaiian organizations, and Native Alaskan villages and corporations, to request the return or "repatriation" of human remains and other cultural items presently held by federal agencies or federally assisted museums or institutions.
The act also contains provisions regarding the intentional excavation and removal of, inadvertent discovery of, and illegal trafficking in Native American human remains and cultural items.
All federal agencies that manage land and/or are responsible for archaeological collections from their lands or generated by their activities must comply with the Native American Graves Protection and Repatriation Act.
(h) Marine Mammal Protection Act
The Marine Mammal Protection Act (MMPA) was enacted in 1972 to protect and manage marine mammals and their products (e.g., the use of hides and meat). The primary authority for implementing the act belongs to the FWS and National Marine Fisheries Service. The FWS manages walruses, polar bears, sea otters, dugongs, marine otters, and West Indian, Amazonian, and West African manatees. The National Marine Fisheries Service manages whales, porpoises, seals, and sea lions. The two agencies may issue permits under MMPA Section 104 (16 U.S.C. 1374) to persons, including federal agencies, that authorize the taking or importing of specific species of marine mammals.
After the Secretary of the Interior or the Secretary of Commerce approves a state's program, the state can take over responsibility for managing one or more marine mammals. Regulations governing the transfer of responsibility were published in May 1983. Although certain states actively participate in the management of marine mammals, as of August 9, 1994, no state has fully taken on this duty.
The MMPA established a Marine Mammal Commission whose duties include reviewing laws and international conventions relating to marine mammals, studying the condition of these mammals, and recommending steps to federal officials (e.g., listing a species as endangered) that should be taken to protect marine mammals. Federal agencies are directed by MMPA Section 205 (16 U.S.C. 1405) to cooperate with the commission by permitting it to use their facilities or services.
(i) Executive Order 11988, Floodplain Management
Executive Order 11988 was issued to avoid direct or indirect support of floodplain development whenever there is a practicable alternative. A federal agency is required to evaluate the potential effects of any actions it may take in a floodplain. Federal agencies are also required to encourage and provide appropriate guidance to applicants to evaluate the effects of their proposals on floodplains prior to submitting applications for federal licenses, permits, loans, or grants.
(j)Low-Level Radioactive Waste Policy Act, Title 42 U.S.C. 2021b, et seq.
The Low-Level Radioactive Waste Policy Act is designed to improve the procedures for the implementation of compacts providing for the establishment and operation of regional low-level radioactive waste disposal facilities. It also allows for Congress to grant consent for certain interstate compacts. The amended act sets forth the responsibilities for disposal of low-level waste by states or interstate compacts. The act states the amount of waste that certain low-level waste recipients can receive over a set time period. The amount of low-level radioactive waste generated from both pressurized and boiling water reactor types is allocated over a transition period until a local waste facility is operational.
(k)Nuclear Waste Policy Act of 1982, Title 42 U.S.C. 10101, et seq.
The Nuclear Waste Policy Act of 1982 provides for the research and development of repositories for the disposal of high-level radioactive waste, spent nuclear fuel, and low-level radioactive waste. The act consists of three titles and several subtitles. Title I includes the provisions for the disposal and storage of high-level radioactive waste and spent nuclear fuel. Subtitle A of Title I delineates the requirements for site characterization and construction of the repository and the participation of states and other local governments in the selection process. Subtitles B,C, and D of Title I deal with the specific issues for interim storage, monitored retrievable storage, and low-level radioactive waste.
(l)Toxic Substances Control Act
Congress enacted TSCA in 1976, to become effective January 1, 1977. The act authorizes EPA to secure information on all new and existing chemical substances and to control any of these substances determined to cause an unreasonable risk to public health or the environment.
Under earlier laws EPA had authority to control toxic substances only after damage occurred. The earlier laws did not require the screening of toxic substances before they entered the marketplace. TSCA closed the gap in the earlier laws by requiring that the health and environmental effects of all new chemicals be reviewed before they are manufactured for commercial purposes.
Determinations regarding compliance with TSCA must be made on a case-by-case basis if an activity involves the manufacture, processing, distribution in commerce, use, and/or disposal of a new or existing chemical substance or mixture that may present an unreasonable risk of injury to health or the environment. Although the definition of "chemical substances" explicitly excludes from its scope several materials that might otherwise meet the definition, including those that are regulated under other federal statues, TSCA is potentially applicable to all "chemical substances" and "mixtures" that are manufactured, imported, processed, used, distributed, and/or disposed of in the United States. By definition, TSCA-regulated chemical substances and mixtures do not include "¼ any source material, special nuclear material, or byproduct material (as such terms are defined in the Atomic Energy Act of 1954 and regulations issued under such Act) ¼ ." [TSCA, Section 3(2)(B)(iv)]. Although TSCA excludes nuclear material, the TSCA-regulated portion of a mixed nuclear and regulated waste must comply with TSCA requirements. Materials that are not chemical substances or mixtures are not subject to the various requirements of TSCA.
The TSCA program is run by EPA and is not delegated to any state agency.
(m) National Environmental Policy Act
NEPA of 1969 as implemented by E.O. 11514 and E.O. 11991 established national policies and goals for the protection of the environment. NEPA aims to encourage harmony between people and the environment, to promote efforts to prevent or eliminate damage to the environment and the biosphere, and to enrich the understanding of ecological systems and natural resources important to the country.
NEPA is divided into two titles. Title I outlines a basic national charter for protection of the environment. Title II establishes the Council on Environmental Quality (CEQ). CEQ monitors the progress made toward achieving the goals set forth in Section 101 of NEPA. CEQ's duties include advising the president on environmental issues and providing guidance to other federal agencies on compliance with NEPA. Accordingly, CEQ promulgated regulations (amended in 1986) governing the NEPA process for all federal agencies.
Section 102(2) of NEPA contains "action-forcing" provisions that ensure federal agencies act according to the letter and the spirit of the law. These procedural requirements direct all federal agencies to give appropriate consideration to the environmental effects of their decision making and to prepare detailed environmental statements on recommendations or reports on proposals for legislation and other major federal actions significantly affecting the quality of the environment.
Agencies must establish specific criteria for classes of action that (1) usually require an EIS, (2) normally require an EA but do not necessarily require an EIS, and (3) require neither an EA nor an EIS (the "categorical exclusions").
If the action requires an EIS, the agency must publish a notice of intent and begin the scoping process. Then the agency prepares the draft EIS, solicits comments from affected parties and various governmental entities, and drafts the final EIS after considering the comments received. The contents of the final EIS must be considered when making a decision on the proposed action. The agency must prepare a record of decision, a concise statement of its decision discussing its choice among alternatives and the means that will be employed to mitigate or minimize environmental harm.
If the agency action does not fall within the category of actions designated as categorical exclusions or as requiring an EIS, the agency must prepare an EA. The EA determines whether an EIS is needed. If the EA determines that an EIS is not needed, the agency must issue a finding of no significant impact that briefly explains why the agency's action will not have a significant impact on the environment.
Although NEPA requires agencies to take what is known as a "hard look" at the environmental consequences of their actions, it does not force them to take the most environmentally sound alterative.
(n) Comprehensive Environmental Response, Compensation, and Liability Act
Congress passed CERCLA of 1980, also known as "Superfund" in response to a growing national concern about the release of hazardous substances to the environment. SARA, signed by President Reagan on October 17, 1986, amended many provisions of CERCLA. SARA has been the only major revision of CERCLA since its enactment in 1980.
CERCLA provides for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and for the cleanup of inactive hazardous waste disposal sites. CERCLA [Section 101 (14)] defines hazardous substances as
(A) any substance designated pursuant to Section 311(b)(2)(A) of the Federal Water Pollution Control Act, (B) any element, compound, mixture, solution, or substance designated pursuant to Section 102 of this act, (C) any hazardous waste having the characteristics identified under or listed pursuant to Section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by act of Congress), (D) any toxic pollutant listed under Section 307(a) of the Federal Water Pollution Control Act, (E) any hazardous air pollutant listed under Section 112 of the Clean Air Act, and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to Section 7 of the Toxic Substances Control Act.
Releases of source, byproduct, or special nuclear material from a nuclear incident are excluded from CERCLA requirements if the releases are subject to the financial protection requirements of the AEA. Releases of source, special nuclear, or byproduct materials from a processing site designated by the Uranium Mill Tailings Radiation Control Act of 1978 are also excluded [CERCLA Section 101(22)].
CERCLA intends to provide for response to, and cleanup of, environmental problems that are not covered adequately by the permit programs of the many other environmental laws, including the CAA, CWA, SDWA, MPRSA, RCRA, and AEA. In general, if a release to the environment constitutes a "federally permitted release," as defined by Section 101(10) of CERCLA, the release is not subject to CERCLA reporting requirements. However, if the release exceeds the permitted limit for a specific substance by the reportable quantity of that substance or more, results from startup or shutdown of a process, or occurs more frequently than the permit stipulates, it is subject to CERCLA reporting requirements. Future regulations may exempt federally permitted facilities and continuous-release facilities on a case-by-case basis. Permits do not cover abandoned waste disposal sites, and these sites are clearly subject to CERCLA.
CERCLA, as amended by SARA, provides for a fund, called the Superfund, that EPA or state and local governments can use to pay for the cleanup of hazardous waste sites listed on the national priorities list (NPL). The NPL, compiled by EPA, lists those sites, including federally owned facilities, that appear to pose the most serious threats to public health or the environment. EPA determines whether to place a site on the NPL by using the hazard ranking system (HRS).
Under the HRS, pertinent data about a site are evaluated and "scored." A site may receive scores for items such as waste volume, waste toxicity, proximity to population, and distance to underground drinking water. The cleanup of sites must conform to EPA's National Contingency Plan, the operating rules for Superfund cleanups promulgated by EPA under Section 105(a)(8)(B) of CERCLA. The NPL is dynamic. As HRS studies are performed, releases and waste sites may be removed from or added to the list. As of May 31, 1994, the NPL included 1,286 final sites (150 in the federal section) and 54 proposed sites (six of which are federal sites).
If liability for the release of a hazardous substance can be firmly established, the liable or "potentially responsible party" must pay for the cost of remedial responses. Generally, funds from the Superfund do not go toward paying for the cleanup of releases from federally owned facilities [Section 111(e)(3)] except to provide alternative water supplies in cases involving groundwater contamination outside the boundaries of a federally owned facility if the federally owned facility is not the only potentially responsible party.
Under Section 120 of CERCLA, each department, agency, and instrumentality of the United States is subject to, and must comply with, CERCLA in the same manner as any nongovernmental entity (except for requirements for bonding, insurance, financial responsibility, or applicable time period).
The Superfund process includes the following steps:
Preliminary assessment--EPA performs a preliminary assessment of a site (often a review of data without an actual site visit) to determine if further study is necessary.
Site inspection--A site inspection is an on-site investigation conducted to find out whether there is a release or potential release and to determine the nature of the associated threats.
Remedial investigation--A remedial investigation, conducted by the lead agency, determines the nature and extent of the problem presented by the release.
Feasibility study--The lead agency undertakes a feasibility study to develop and evaluate options for remedial action. The remedial investigation and feasibility study are collectively referred to as the "RI/FS."
Record of decision--After completing the RI/FS, EPA selects the appropriate cleanup option and publishes it in a public document known as the record of decision.
Remedial design--The remedial design includes the technical analysis and procedures that follow the selection of a remedy for a site.
Remedial action--The remedial action involves the actual construction or implementation of a cleanup.
In general the proposed remedy for a site must meet two threshold criteria: (1) to protect human health and the environment and (2) to comply with "applicable or relevant and appropriate requirements". Federal and/or state requirements are considered "applicable" if they are "¼ based upon an objective determination of whether the requirement specifically addresses a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site" [40 CFR Part 300 (9)(1)].
CERCLA, if not reauthorized by Congress, will expire in 1995. Referred to as the Superfund Reform Act of 1994 (The Act), HR-3800 and S-1834 have emerged as the primary amending statutes on Superfund law. The major features of these bills are intended to enhance EPA's information-gathering activities; sharply limit joint and several liability as it applies to de minimis parties; limit the liability of lenders; create more flexibility within the remedy selection process; and increase opportunities for public participation in the decision-making process and incorporate environmental justice concerns within the CERCLA process. This list is not exhaustive; however, it gives a general overview of the scope of CERCLA reform.