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OAR Box 1837 

Prepped by Keeia Richards 

Document Number: 

185) IV-H-2 

Docket Number: 

A-84-33 

Printed 11/14/2008 3:48:12 PM Sheet 185 of 238 
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THE UNDER SECRETARY OF THE INTERIOR 

WASHINGTON, D.C. 20240 

NOV -1'3 1SS5 

Mr. Charles Elkins . 

Acting Assistant Director 

for Air and Radiation 

U. S. Environmental Protection Agency 

4th and M Streets, S. W. 

Washington, D. C. 20460 

Dear Mr. Elkins: 

eN**QNJ£** 

MARO 

*GENCy*0r£CTl0tM 

s^-r 

Thank you for the opportunity to review a draft of the Regulatory Impact 

Analysis (RIA) of the rule proposed by the Environmental Protection Agency 

(EPA) on October 26, 1985, 49 Fed. Reg. 43211, which would list surface coal 

mines as a source category whose fugitive emissions must be counted in 

determining whether they are "major" stationary sources of air pollution 

subject to new source review under the Clean Air Act. 

Our Office of Policy Analysis served to coordinate the review of the RIA and 

to oversee the preparation of unified ccmments frcm all of our interested 

program areas. The unified set of comments is attached for your use in 

revising the RIA prior to publication. 

The Department would appreciate knowing your response to each of the items in 

the comments. Should you wish any clarification on any of these points, 

please contact Martin L. Smith, Director, Office of Policy Analysis (343-

5978)t. 

Sincerely, 

Ann McLaughlin 

Enclosure 

a 0 5 
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United States Department of the Interior 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 20240 

NOV 7 1985 

Memorandum 

To: Under Secretary 

Fran: Deputy Assistant Secretary/Director, Office of Policy Analysis 

Subject: Technical Comments on EPA's Fugitive Dust Draft RIA 

The Department of the Interior was given the opportunity to review the draft 

Regulatory Impact Analysis (RIA) of the rule proposed by the Environmental 

Protection Agency (EPA) on October 26, 1984, 49 Fed. Reg. 43211, which would 

list surface coal mines as a source category whose fugitive emissions must be 

counted in determining whether they are "major" stationary sources of air 

pollution subject to new source review under the Clean Air Act. This office 

served to coordinate the comments and views of the various interested bureaus 

and Assistant Secretaries. The comments are limited to the technical analysis 

and address (1) whether the draft RIA demonstrates, with accepted models, that 

surface coal mines significantly degrade air quality; (2) the estimate of 

costs; (3) the estimate of benefits; and (4) some related issues. 

Air Quality Modeling 

The emissions modeling in the draft RIA requires additional development. 

Additional empirical work would demonstrate whether or not air quality is 

threatened by surface coal mines and would help verify the air quality 

modeling. 

1. The validity of using the Industrial Source Complex (ISC) model for 

dispersion of surface coal mine particulates has been called into question 

by those who say that it is more appropriate for modeling gaseous 

emissions, not the heavy particles emitted by surface coal mines. The ISC 

model has a scheme for describing the deposition of particulate matter and 

has been used to model fugitive emissions. We question the adequacy, 

however, of using a Gaussian formulation for modeling ground-based 

emissions of heavy particles. It has also been estimated that use of the 

ISC model may introduce cumulative systematic errors that overstate 

predicted TSP concentrations by a factor of 5. EPA should explain in 

more detail why the model is appropriate for this analysis. 

1. TRC, Quantification of uncertainties in EPA's Fugitive Emissions and 

Modeling Methodology of Surface Coal Mines, 1985. 
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2. The assumption that emissions occur at ground level with no pit 

retention is a serious deficiency given that the PEI report estimates a 

pit retention range of 25 percent to 90 percent. The impact of pit 

retention has been modeled in the case of coal and oil shale. It may be 

useful to review such models of pit retention to better qualify the 

results yielded by the draft RIA. 

3. Another deficiency is that the ISC model assumes the terrain is flat 

or gently rolling. Elevation differences between receptors were not 

considered. The lack of terrain adjustments could skew the air quality 

analysis for better or worse, depending on the terrain. Therefore, some 

discussion concerning the effect of terrain on predicted ground-level 

concentrations and overall cost-benefit analyses should be added to the 

RIA. 

4. The nature of the particulate matter modeled is unclear; the 

deposition rates and particle size distribution are very important to 

dispersion of the fugitive dust. Thus, PEI should clarify the assumptions 

used about the percentages of particulate matter of differing sizes and 

their rate of deposition. Information about the studies which "...have 

predicted small particle (EM1Q) contributions...as high as 2,000 tons per 

year..." (p.IV-2) should be provided. Additional information should 

clarify whether the quoted assertions have been verified by field studies. 

5. The draft RIA also "assumes (a) a linear relationship between mine 

production and emissions and (b) worst case mine configurations with no 

allowance for mine equipment changes. The linear relationship is not 

verified. Some examples of estimating the emissions for alternate sizes 

of the same mine could help confirm or deny this assertion. Emissions are 

more likely related to total volume (coal and overburden) moved, not just 

coal production. PEI tried to capture this by using hypothetical mines 

for each region. There is substantial variation within a region and 

sometimes even within a mine. Particularly in the case of a mine that 

could be downsized, the operator would highgrade the operation, thus 

reducing the emissions per ton of coal even more. The worst case that 

both the pit and 10 miles of haul road would be at the mine boundary 

simultaneously is unlikely. Sensitivity of these assumptions should be 

assessed in order to clarify their effect on the overall outcome. 

2. Cole and Fabrick, 1984, "Surface Mine Pit Retention," Journal of the Air 

Pollution Control Association, V. 36, No. 6, June 1984, pp. 674-675. 

Cole, et al, 1984, "Dispersion of Airborne Particulates in Surface Coal 

Mines—Data Analysis (DRAFT)," prepared by TRC Environmental Consultants, 

Inc., for EPA, MDAD, OAQPS, Research Triangle Park, NC., September 24, 

1984. 

Clear Creek Shale Oil Project: Retorting and Mining PSD Application, EPA 

Region VTII, 1982. 
P.5 

6. Footnote 5 (p. IV-55) suggests that model results for the year 2016— 

the year the Alton operation is anticipated being closest to Bryce Canyon 

National Park—were not analyzed in the draft RIA. We would be interested 

in knowing how the analysis would change if these results were employed. 

7. According to a DOE PEDCO study, the models used in the draft RIA have 

never been validated: 

No predictive process for estimating particulate concentrations 

around coal mines has ever been verified against measured 

concentrations. 

Because not only the rationale for the regulation, but the estimates of 

emissions for individual mines depend on air quality models, we suggest 

that the EPA address the problem of model verification. The State of 

Wyoming, for example, has compared surface coal mine model results with 

measured ambient air quality. EPA should provide similar comparisons for 

the models it has used. 

In particular, it is unclear whether the predictions concerning violations 

at the Cordero mine have been confirmed by monitoring studies. Some 

correlations of the analytic studies to actual conditions should be 

sought. 

8. The text (p.III-6) should clarify whether the offsets are from 

existing sources, in which case the result would be no net change in 

emissions, or whether the offsets are from facilities with unused emission 

permits, in which case the result would be a change in emissions. 

Cost Estimates 

Although care was taken to assess the regulation's economic impact on local 

coal producers in each basin studied, this is only one part of the welfare 

loss attendant on the imposition of the regulations. Other potential costs 

need to be considered as they are likely to be significant under certain 

scenarios. In addition, problems with the cost model used cast serious doubt 

on some of the cost estimates. 

1. The assumption of market independence of each basin is a serious 

flaw. The markets for each of the regions overlap considerably and this 

regulation could have significant consequences regarding the relative 

competitiveness of these markets. Production patterns for coal could 

shift significantly between regions. The production costs resultant from 

these shifts need to be considered. These shifts will also require shifts 

3. "Assessment of Impacts on the Surface Coal Mining Industry Resulting from 

Possible Changes to PSD and Ambient Air Quality Standards," prepared for 

U.S. DOE, by PEDCO Environmental, Inc., June 1984, p. 7-15. 

4. Wyoming Department of Environmental Quality, Air Quality Division, 

Cheyenne, Wyoming. 
P.6 

in the infrastructure and labor markets, the costs of which should also be 

considered. The utility market could be affected. For example, many 

power plants are designed for certain types of coal. If these coal types 

are severely restricted, the utility will face the much higher cost of 

that coal or of modifying power plants to utilize less restricted coal 

types. The BLM is engaged in an effort to perform a similar large scale 

analysis to analyze the macro effects of the various fugitive emissions 

alternatives. 

2. It is important that the word "modified" be specifically defined 

relative to PSD requirements. Currently, coal mine operators on Federal 

leases are required to file a modification to an approved mine plan. Most 

of these modifications have little or no impact on production and 

therefore would not consume increments but would bring an existing mine 

under consideration even if previously grandfathered. 

3. The mine sizes used are based on production figures several years 

old. Powder River production has grown rapidly with more mines over 10 

million tons and the largest mine producing over 21 million tons in 1984. 

The mine simulation model that was selected, however, causes most of the 

serious1 problems of the costing section. The EPRI Surface Coal Mine 

Simulation Model (1982) was used to cost out each region's representative 

mines and downsized mines. It uses both mine specific variables and 

generalized mine variables to determine what the costs associated with 

mining are for any particular mine. The model used in the fugitive 

emissions costing analysis is, however, outdated, superseded by Mod-3 

which was released in 1984. The new model replaced Mod-2 with which users 

had encountered many problems. Some of the changes to the new model are 

updated cost tables, modified labor requirement calculations, the 

consideration of inflation, and updated taxes. 

In addition to the problems of the model itself, the variables used in the 

analysis may also be inappropriate. A debt servicing rate of 5 percent 

and rate of return on equity of 8 percent are probably too low. The 

acquisition cost is described as representing a western average; a 

regional average would be more meaningful. Financial parameter defaults 

should also be overriden for each region. Both severance tax and state 

tax vary dramatically from state to state (severance tax varies from 0 

percent to 17 percent in the regions analyzed) and, as a result, should be 

defined specifically for the mine being analyzed. The magnitude of the 

error that results from these problems is uncertain. It would be useful 

for a listing of all input variables to be provided so that a meaningful 

comparison could be made using the two models. 

However, some preliminary estimates of the costs of downsizing have been 

made. The assumptions and variables are probably different from those 

used in the PEI analysis, but do represent accepted mining practices and 

reasonable financial assumptions. Initial results obtained using mine 

costing algorithms suggest that PEI significantly underestimated the cost 

change that results when mines are downsized from 15 to 5 million tons per 

year. The costs curves derived by EPRI (Mod-2) may be much flatter 
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than those actually experienced in the Powder River region. As a result, 

the costs may be underestimated in the RIA, although the magnitude is 

uncertain. 

Even assuming that the EPRI model works properly and that appropriate 

inputs were used, errors still exist in its application. The first of 

these is the calculation of downsizing costs based on the same type of 

equipment. It is not reasonable to assume that a new mine will select the 

same type (dragline, truck/shovel) regardless of the size limitations it 

is faced with. At some production rate it would be more efficient to 

switch to truck/shovel even if the "representative" mine for the region 

currently uses a dragline. Although it may not be possible to determine 

this switch-over point for each region, a sensitivity analysis is 

appropriate, to provide an idea of how large the resulting bias is. 

Secondly, no differentiation between old and new mines is made in the 

costing analysis. Existing mines are likely to modify their usage of 

existing equipment, whereas new mines will employ the most efficient 

equipment configuration for the constrained production rate. The EPRI 

model does not accurately model the first case because it calculates the 

most efficient equipment for a given production rate. Variable overrides 

could be used to calculate a realistic estimate of the costs to existing 

mines. ' Even if no quantitative analysis is done, the issue needs to be 

addressed. 

To provide greater confidence in the costs generated in this section of 

the report, several items need to be done. First, a detailed and complete 

listing of the EPRI inputs needs to be provided. This would allow the 

reviewer to determine which defaults are used and if they are appropriate 

for the mine. After the inputs are reviewed and accepted as reasonable, 

the mines should be run, using the current version of EPRI. Determination 

of the appropriateness of the criteria should also be made, specifically 

addressing if the selected mine represents a likely new mine in 1995. 

As another source of comparison, a mine engineering consultant estimated 

cost for various sizes of mines in the Wyoming and Montana portions of the 

Powder River Basin. Their analysis confirms BIM's internal analysis, 

i.e., that PEI's estimates of the cost of downsizing from 15 to 9.4 

million tons per year are reasonable, but the cost of going frcm 15 to 4.6 

million tons per year are greatly underestimated ($2.64 - $2.82 per ton 

instead of $.81 per ton). This will result in a cost curve for Powder 

river that is similar to those of the other regions (see Appendix B of PEI 

report). More importantly, the cost of down-sizing from 10 million tons 

per year would be closer to $2.00 per ton instead of $.10 per ton. Thus, 

the downsizing costs for Class II increments may be off by 350 percent to 

2000 percent. Both analytical efforts are continuing, with final results 

expected to be available during the public comment period. 

4. If emissions are linear with production, then spreading the production 

out by having smaller mines will result in the same amount of fugitive 

dust spread out over a wider area. If production shifts from a low 

stripping ratio area like Powder River to an area with higher stripping 

ratios, the emissions will actually be higher. There are no estimates of 

the costs (negative benefits) of this result. 
P.8 

5. Under Alternative IV, the impacts on coal mining near class I and 

mandatory class II areas may be greater than indicated by the RIA. The 

PEI study suggests that only 1 percent of the coal reserves are 

involved. However, preliminary estimates by the Bureau of Land 

Management, using a distance based approach which does not attempt to 

consider air quality impacts, terrain, or any factor other than distance, 

suggest that a significant percentage of western surface coal mines, 

reserves and acreage could be affected by the rule. When this analysis is 

complete, we will provide it to EPA. 

6. The amounts of coal that would be unrecoverable if Class I 24-hour 

increments were imposed should be a part of the impact analysis. Impacts 

to normal mine development should be characterized at least generically. 

7. The added social costs of increased underground mining (injuries and 

deaths) should be considered. This also results in higher direct and 

indirect costs. 

8. The "adverse impact test" should be taken into account when defining 

which surface coal mines could "affect" class I and mandatory class II 

areas under alternative IV. 

The RIA describes the "adverse impact test" and its likely impacts on the 

cost-benefit analysis in footnote 7 (page IV-55), but we suggest 

incorporating an expanded discussion into the relevant portions of the 

text. Essential to the Federal Land Manager's involvement in the PSD 

review process is the "adverse impact test" for class I areas, set forth 

in Section 165(d) of the Clean Air Act (42 U.S.C. sec. 7475(d)). This 

test, or variance procedure, involves a case-by-case evaluation of a new 

source's air quality impacts on the resources of the class I area. Under 

this test, mines with predicted air quality concentrations in excess of 

class I increments may still obtain a PSD permit if the Federal Land 

manager certifies that the air quality related values of the class I area 

will not be adversely affected. In this situation, the source may be 

subject to an alternative class I increment ceiling for particulate matter 

numerically identical to the class II increment. On the other hand, if 

the Federal Land Manager demonstrates to the permitting authority's 

satisfaction that the air quality related values of a class I area will be 

adversely affected by a mine whose emissions do not produce exceedences of 

the class I increments, then the permitting authority shall not issue a 

PSD permit. To date, approximately ten sources whose emissions were 

predicted to contribute to a class I increment exceedence have requested a 

"certification of no adverse impact," or variance, from the Federal Land 

Manager, and following a careful, case-by-case analysis, each was granted. 

9. The draft RIA seems to assume that a mine would "affect" a class I or 

mandatory class II area if its emissions would cause or contribute to an 

exceedence of the area's PSD increments. This interpretation needs to be 

expanded in scope to also include potential adverse impacts on the class I 

areas' air quality related values. Thus, the RIA must address not only 

surface coal mines whose emissions affect class I and mandatory class II 

areas by causing or contribution to a PSD increment violation, but also 

those creating an adverse impact on the air quality related values of a 

class I area. 
P.9 

10. The annual costs are divided by the annual visitation to determine 

what user fees would have to be to cover the costs (p. xli-xliii). This 

assumes zero preservation value and therefore overestimates what the value 

to users would have to be to justify the costs. 

Visitation figures from 1984 were used in the 1996 estimates. Perhaps 

some effort should be made to estimate whether visitation would be 

expected to increase, decrease or remain the same. Historic trends would 

suggest that visitation is likely to increase. 

While the effect of Alternative IV on visitation fees is an insightful 

measure, it should be clearly pointed out that this is a hypothetical 

situation. The actual costs of Alternative IV would be paid by coal 

consumers in higher electricity coal costs. 

11. The draft RIA (Appendix A) indicates that the Grand Canyon 

preservation value estimates were adjusted by the ratio of visitation at 

Bryce Canyon National Park to visitation at Grand Canyon National Park. 

We suggest that EPA explain its assumption that preservation values are 

proportional to visitation. 

12. The statement that regulations would have no impact "if the value of 

a lease tract can decline enough to offset PSD related costs" (p. IV-13) 

is incorrect. More correctly stated is that no price increase would 

result—that a mine with a cost advantage would simply lose some of that 

advantage and continue to sell at the going price. While this is true, 

that firm still suffers from real, higher costs. 

13. Regulation of surface coal mines could also entail significant losses 

of Federal and State coal revenue. 

» 

Benefits Estimates 

The draft RIA admits that certain benefits were neglected in the analysis. 

Benefits associated with preservation or existence values, with noise 

pollution abatement, and with aesthetics should not be ignored. 

1. Preservation or existence value benefits are extremely important in 

the benefit cost analysis, especially as it pertains to Alternative IV^. 

That the RIA recognizes them, at least in a qualitative sense, is to be 

commended. Surveys sponsored by the National Park Service at Mesa Verde 

5. We prefer the term "preservation value" to "existence value". The RIA 

defines existence value to include bequest value and other components of 

preservation value, but the term existence value has cone to be used in 

the literature to refer to the value of knowing the resource is there even 

if no one ever intends to use it, which is one aspect of preservation 

value. It should be noted that the Southwest Parkland Study refers to 

preservation values as including use and nonuse values, but this is not 

the case throughout most of the literature. 
P.10 

and Grand Canyon National Parks indicated that "knowing that the park 

resources were being protected" ranked highest among park attributes 

visitors believed to be important6. This value of parks seems likely to 

increase over time as population increases, residences and business occupy 

more and more land, and areas such as national parks and wilderness areas 

set aside for their preservation become, more scarce. In estimating 

preservation values, the draft RIA references the Southwest Parklands 

Study by Schulze et. al. This study estimated preservation values not 

only for the unique Grand Canyon, but also for the remainder of the 

southwest region. The preservation values for the southwest region are 

substantial, though less than for the Grand Canyon. 

Three additional studies concerning the value of protecting environmental 

quality at recreation areas also provide evidence that preservation values 

may be very important relative to on-site user values. One of these 

studies used contingent market techniques to estimate user, option, 

existence, and bequest values associated with water quality as it affects 

water-based recreation opportunities for South Platte River Basin 

residents in Colorado7. The results provided strong support that 

preservation values for environmental quality associated with a recreation 

resource are substantial for local residents whether they are users or 

nonusers. Preservation value estimates for uses exceeded their use value 

estimates, and the average preservation value estimates for nonuser 

households amounted to almost 75 percent of the average household user 

value estimates. A second study estimated preservation values for 

wilderness areas in Colorado and throughout the country8. The results of 

this study indicate that even with a broadly defined environmental and 

recreational resource such as wilderness areas, which individually have 

many potential substitutes, aggregate preservation values for nonlocal 

residents can be substantial relative to total user values. A third study 

reviewed preservation value estimates for water quality and found that 

preservation values for users alone were typically 50 percent of user 

6. D. M. Ross, W. M. Malm, R. J. Loomis, "The Psychological Valuation of Good 

Visual Air Quality By National Park Visitors," Paper No. 85-10.4 presented 

at the 78th Annual Meeting of the Air Pollution Control Association, 

Detroit, Michigan, June 16-20, 1985. 

7. D. A. Greenley, R. G. Walsh, and A. Y. Young, "Option Value: Empirical 

Evidence from a Case Study of Recreation and Water Quality," Quarterly 

Journal of Economics 96 (November 1981): 657-673. 

8. R. G. Walsh, R. A. Gillman, and J. B. Loomis, "Wilderness Resource 

Economics: Recreation Use and Preservation Values," prepared for the 

American Wilderness Alliance, Denver, Colorado, 1982. 
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q 

values . The implication exists that preservation values for nonusers may 

add substantially to these estimated values. 

What all of these studies suggest is that preservation values may be 

substantial relative to user values, even for environmental quality in 

parks less well known and less unique than the Grand Canyon. 

2. Table VI-1 should include visual aesthetics in addition to 

visibility. Another potential benefit that is not discussed is the 

possible decrease in soiling and materials damage to cultural and historic 

resources, particularly important at Chaco Culture National Historic 

Park. Even though these issues are site specific, the RIA should describe 

a methodology to evaluate these benefits. 

3. The section on Cost Impacts discusses examples of efficient control 

techniques that are a part of normal operations (p. IV-41). This benefit 

should also be discussed. 

4. The roost important assumption underlying the benefits analysis for 

alternatives II and III is that none of the new mines will locate within 

10 miles of any significant existing population. If this assumption is 

not correct, the benefits could be significantly understated. This 

critical factor should be noted early in the executive summary. Fairly 

good estimates can be made on the location and size of coal mines and 

population centers in the West through 1995 due to long lead time 

associated with Western coal mine development. 

5. Several of the studies in the draft RIA, such as Mazumdar and Ostro on 

which benefit projections are based, were generated on populations 

radically different from those expected in the rural U.S. coal basins. 

The Mazumdar study of mortality in London and the Ostro acute morbidity 

study address pollutants and populations unlike those involved in major 

mining areas. Sources for more comparable models should be explored. 

6. The benefits for the second regulatory alternative, though small, may 

be overstated. The total benefits for all five basins studied was $29,100 

to $815,900 (Table VTI-1, page VII-7). Given the national scope of the 

proposed regulation, this does not represent a significant social benefit 

and a significant improvement in air quality. Even with the limited 

benefits identified, the overstatement is a significant problem. As noted 

in the draft RIA: "...all health-related benefits may be overstated and 

are conceivably as low as zero" (p. VT-60). Yet 97 percent of the 

$815,900 in benefits identified in the second alternative, are potentially 

attributable to health benefits. Of the lower figure, $29,100, 100 

percent were health benefits. 

9. A. Fisher and R. Raucher, "Intrinsic Benefits of Improved Water Quality: 

Conceptual and Empirical Perspectives," Advances in Applied 

Microeconomics, Vol. 3, V. K. Smith and A. DeWitte, eds., Greenwich, 

Connecticut, JAI Press. 
P.12 

10 

7. We suggest that EPA explain the applicability of the Randall study to 

, western mines due to the nature of the area and the object of the study, 

i.e., reclamation of an open pit. 

8. Benefits (or costs) to the employees should not be included because 

this would be double counting, because such costs are included under the 

costs of mining - i.e., employee compensation. 

Related Issues 

1. In the draft RIA discussion of the Surface Mining Control and 

Reclamation Act (SMCRA; pp.111-2,3), it incorrectly states that SMCRA 

provisions apply only to mines located on federal lands; rather, SMCRA 

. applies to all surface coal mining operations on federal, state, or 

private lands. A copy of a memorandum describing the legal authorities 

for protecting units of the National Park System from the adverse effects 

of air pollution, dated September 20, 1985, which was recently transmitted 

to the Subcommittee on National Parks and Recreation of the House 

Committee on Interior and Insular Affairs is enclosed (see Attachment). 

Further legal analysis is being pursued. 

2. The draft RIA does not take into account the existing requirements for 

control technology at new sources. For example, the discussions concerning coal preparation" plants and captive mines throughout the text 

should indicate that BACT is required for these sources now subject to 

PSD. Other mines may be subject to control technology requirements under 

other authorities. Instead the draft RIA seems to imply that consideration of such control technology for new sources is unusual. 

3.** The RIA should indicate what general types of effective pollution 

control devices could be required for installation at surface mines to 

control dust from roads and open pits. 

4. The use of New Source Performance Standards (NSPS) for dust control 

deserves fuller analysis in the RIA. The PEI study indicates that the 

major source of fugitive dust from surface mines appears to be dust 

generated by trucks traveling on haul roads. All firms use dust control 

to reduce equipment maintenance costs and to improve safety and 

visibility. The principal control method is watering. This may not be 

the most efficient method for broad use in arid regions. The Bureau of 

Mines has identified at least five other ways to control road dust: 

hygroscopic salt compounds, surfactants, adhesives, bitumens (petroleum 

products) and films. Not all have been studied and found to be effective 

as well as environmentally sound. Nevertheless, haul roads, as sources of 

dust, might be regulated through NSPS. 

5. The discussions of Visibility Modeling (p. IV-32) should acknowledge 

that the Secretary of the Interior has decided not to proceed with 

integral vista rulemaking. 
P.13 

11 

6. There could be conflict between the constraints on coal production 

under this proposal and the diligence production requirement on Federal 

coal leasing under the Mineral Leasing Act as amended. 

* \ u 

Martin L. Smith Y~ 

Attachment 
P.14 

w ATTACHMENT 

United States Department of the Interior 

In Reply Refer To: 

NPS.CW.0264 

OFFICE OF THE SOLICITOR 

WASHINGTON, D.C. 20240 

SEP 20 1985 

Director, National Park Servic 

Associate Solicitor 

Memorandum 

To: 

From: 

Subject: Protection of National Park System Units from the 

Adverse Effects of Air Pollution 

This memorandum is written in response to your request for an 

analysis of the legal authority of the Department of the Interior 

(DOI) to protect units of the National Park System (NPS) from the 

adverse, effects of air pollution. 

Since its creation in 1916 the National Park Service has been 

charged with the responsibility of managing NPS units in such a 

way as to "conserve the scenery and the natural and historic 

objects and the wildlife therein . . . ." (See 16 U.S.C. 

§§ 1, 3.) That responsibility was reaffirmed in 1978. (See id. 

§ la-1.) This memorandum examines the legal tools to carry out 

that responsibility insofar as it entails the protection of NPS 

units from the adverse effects of air pollution. 

By and large, air pollution which adversely affects NPS units has 

its source outside those units and, therefore, outside the area 

of DOI's general park regulatory jurisdiction. Accordingly, the 

authority of the Secretary of the Interior to address the harmful 

effects of air pollution within NPS units largely depends upon 

the extent to which existing law empowers the Secretary to 

regulate, control or otherwise affect air polluting activities 

outside NPS units which create those harmful effects within them. 

CLEAN AIR ACT 

The clearest grant of authority to the Secretary to protect NPS 

units from the harmful effects of air'pollution generated outside 

those units is contained in the Clean Air Act (CAA). (See 42 

U.S.C. $ 7401, et seq.)" 

The CAA addresses air pollution at several levels. Initially, it 

requires the Administrator of the Environmental Protection Agency 

(EPA) to prescribe primary and secondary national ambient air 

quality standards for each air pollutant for which air quality 

criteria are established. (See _id. § 7409(a).) Primary 

standards are designed to protect the public health from air 
P.15 

*i* 

pollution; secondary standards to protect the public welfare. 

(See _id_. § 7409(b).) These standards represent air quality goals 

applicable nationwide. 

With respect to regions of the country which already have 

relatively clean air, the CAA imposes controls on additional air 

pollution. The prevention of significant deterioration (PSD) of 

air quality in certain units of the NPS is addressed in Part C of 

the CAA. (See id. §§ 7470-7491.) Of particular relevance to 

such units are the statutory statements of Congressional purpose 

in section 7470: 

(2) to 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; 

(3) to insure that economic growth will occur 

in a manner consistent with the preservation 

; of existing clean air resources; 

and 

(5) to assure that any decision to permit 

increased air pollution in any area to which 

this section applies is made only after 

careful evaluation of all consequences of 

such a decision and after adequate procedural 

opportunities for informed public 

participation in the decisionmaking process. 

To those ends Congress has prescribed maximum allowable increases 

over baseline concentrations—and maximum allowable 

concentrations—for particulate matter and sulfur dioxide air 

pollution in three classes of the presumably cleaner air quality 

control regions of the country. (See id. §§ 7407, 7473(a),(b).) 

While Congress did not prescribe similar limitations for other 

air pollutants, it did require the Administrator of EPA, after 

study and no later than August 7, 1979, to promulgate regulations 

to prevent the significant deterioration of air quality which 

would result from the emissions of hydrocarbons, carbon monoxide, 

photochemical oxidants, and nitrogen oxides. (See id. 

§ 7476(a).) In addition, it required the Administrator to 

promulgate PSD regulations for other pollutants within two years 

after national ambient air quality standards are promulgated for 

those other pollutants. (Ibid.) To date the Administrator has 

adopted such regulations only for particulate matter and sulfur 

dioxide air pollution. 
P.16 

Control of additional air pollution is to be accomplished by a 

permit system generally supervised by the states pursuant to 

EPA-approved implementation plans designed to prevent significant 

deterioration of air quality in those regions. (See U_. §§ 7410, 

7471, 7475.) 

Of the foregoing "clean air" quality control regions, "class I" 

areas are to receive the greatest protection from additional air 

pollution. (See id. § 7473(b)(1).) Depending upon existing 

levels of air pollution, the maximum allowable increases in 

concentration of controlled pollutants which are permitted in 

class I areas can provide significantly greater protection for 

these regions than is provided generally under the national 

ambient air quality standards. Progressively greater increases 

of air pollution are permitted in class II and class III areas. 

(See _icL_ § 7473(b)(2), (3).) 

Class I areas include all of the following which were in 

existence on August 7, 1977: international parks, national 

wilderness areas and memorial parks which exceed 5,000 acres in 

size, and national parks.which exceed 6,000 acres in size. (Id. 

§ 7472(a).) Unless redesignated as class I or class III areas 

pursuant to section 7474 of that title, all other NPS units— 

including national monuments, smaller national parks, memorial 

parks and wilderness areas, and all NPS units designated after 

August 7, 1977—are class II areas. (Id. § 7472(b).) 

Further, certain NPS units may be redesignated only as class I or 

class II. These units include all national monuments, primitive 

areas, preserves, recreation areas, wild and scenic rivers, 

lakeshores and seashores which exceed 10,000 acres in size (id. 

§ 7474(a)(1)) and all national parks and wilderness areas 

established after August 7, 1977, which exceed 10,000 acres in 

size (i£\- § 7474(a)(2) ) . 

Baseline concentrations of each pollutant for which a ceiling has 

been promulgated must be established before these provisions will 

have any effect on additional air pollution. Baseline 

concentrations are set in each air quality control region at the 

level of concentration of each regulated air pollutant existing 

at the time that the first application for permission to 

construct a "major emitting facility" is submitted to the state 

containing that region. (See id. §§ 7475(a), 7479(4).) 

A major emitting facility is one of a specific list of stationary 

sources which emits or has the potential to emit at least one 

hundred tons per year of any air pollutant. (See id. 

§ 7479(1).) Sources of air pollution which are not included in 

that specific list are not considered major emitting facilities 

subject to these regulations unless they have the potential to 

emit at least two hundred fifty tons per year of those 

pollutants. (Ibid.) Further, only emissions which come from a 

"point source"—such as a smoke stack—-are included in the two 

hundred fifty ton per year threshold calculation unless the EPA 
P.17 

Administrator promulgates a regulation specifically including in 

that calculation emissions that otherwise "escape" a facility, 

such as "fugitive emissions.." (See i_[. § 7602(j); Alabama Power 

Co. v. Costle, 636 F.2d 323, 368-370 (1979).) Where no major 

emitting facility covered by these requirements has sought 

permission for construction, the PSD provisions of the CAA 

provide NPS units no protection against additional air pollution. 

New major sources of air pollution which are subject to this 

permit process are required to perform detailed air quality 

impact analyses prior to filing a permit application, to install 

the best available control technology, and to conduct monitoring 

as necessary after operation of the facility has commenced. (Id. 

§ 7475(a)(2)-(4), (a)(6)-(8), (e)(l)-(3).) 

In addition, when a new major emitting facility may affect a 

federal "class I" area, the statute provides for notification of 

the responsible federal land manager and imposes upon him a 

particular duty to protect the air quality related values of the 

area. Section 7475(d)(2) provides: 

(A) The [EPA] Administrator shall provide 

notice of the permit application to the 

Federal Land Manager and the Federal official 

charged with direct responsibility for 

management of any lands within a class I area 

which may be affected by emissions from the 

proposed facility. 

(B) The Federal Land Manager and the Federal 

Official charged with direct responsibility 

for management of such lands shall have 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. 

In connection with NPS units the "Federal Land Manager" is the 

Secretary of the Interior (See id. § 7602(D) or his delegate 

within the Department of the Interior (see Reorganization Plan 

No. 3 of 1950, 5 U.S.C. Appendix). The "Federal official charged 

with direct responsibility for management" of such lands 

presumably would be the park superintendent or comparable 

official. 

The "affirmative responsibility" of these federal officials is 

delineated in some detail. If either official files a notice 

alleging that emissions from the proposed major emitting facility 

"may cause or contribute to" a change in the air quality in the 

class I area, a permit to construct the facility may not issue 

unless the owner or operator of the facility demonstrates that 

any resulting pollution will not exceed the maximum increases 

allowable under the statute. (42 U.S.C. § 7475(d)(2)(C)(i).) 

Further, even if the maximum allowable increases will hot be 
P.18 

exceeded by the proposed facility, a permit still may not issue 

if the Secretary demonstrates to the satisfaction of the state in 

which the facility is to be located that such facility 

nonetheless will have an "adverse impact on the air quality--

related values (including visibility) of such" area. (Id. 

§ 7475(d)(2)(C)(ii).) 

Correspondingly, if the owner or operator of the proposed 

facility demonstrates to the satisfaction of the Secretary that 

the emissions from the facility will not have an adverse impact 

on such values of that area, then the state may issue a 

construction permit notwithstanding the fact that the emissions 

will cause or contribute to increases in pollutant concentrations 

which exceed those otherwise allowable in the area. (Id. 

§ 7475(d)(2)(C)(iii).) 

The "air quality-related values" which are to be protected from 

the adverse impact of a proposed major emitting facility are not 

defined under the Clean Air Act. They are, however, discussed in 

the Senate report accompanying the bill from which the adverse 

impact determination provision of the 1977 Amendments was taken 

verbatim. The Senate report states: 

[T]he term "air quality related values" of 

Federal lands designated as class I includes 

the fundamental purposes for which such lands 

have been established and preserved by the 

Congress and the responsible Federal agency. 

For example, under the 1916 Organic Act to 

establish the National Park Service (16 

U.S.C. § 1), the purpose of such national 

park lands "is to conserve the scenery and 

the natural and historic objects and the 

wildlife 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." (S. 

Rep. No. 95-127, 95th Cong., 1st Sess. 36 

(1977).) 

Similarly, in the preamble to its proposal of the regulations 

governing the prevention of significant deterioration of these 

values, EPA noted: 

According to the legislative history of the 

Amendments, the term "air quality related 

values" includes the fundamental purpose for 

which such lands have been established and 

preserved by the Congress. In addition to 

visibility, which is specifically cited in 

the Amendments, other "air quality related 

values" that may be considered include odor, 

damage to flora and fauna, geologic and 

cultural characteristics, acid rain and 

climate. (42 Fed; Reg. 57,481 (1977).) 
P.19 

In announcing initiation of the study required by 42 U.S.C. 

§ 7474(d) to determine the importance of air quality related 

values to national monuments and preserves, the Department of the 

Interior defined the phrase as follows: 

Air quality related values are all those 

values possessed by an area except those that 

are not affected by changes in air quality 

and include all those assets of an area whose 

vitality, significance, or integrity is 

dependent in some way upon the air 

environment. These values include visibility 

and those scenic, cultural, biological, and 

recreation resources of an area that are 

affected by air quality. (43 Fed. Reg. 

15,01.6 (1978).) 

By imposing upon the federal land manager the affirmative 

responsibility of protecting air quality related values of class 

I areas from adverse impact by any proposed major emitting 

facility, and by giving him a participatory role in that 

protection, the CAA provides the Secretary of the Interior with 

specific means for the protection of some NPS units from certain 

additional air pollution generated by enumerated sources. 

The portion of the CAA regulating new major emitting facilities 

has been judicially construed to apply only to those facilities 

which are to be constructed in "clean air" areas. (See Alabama 

Power Co. v. Costle, supra, 636 F.2d at 368.). It does not apply 

to the construction of new major emitting facilities in 

nonattainment (non-clean air) areas, even if they will have an 

adverse impact on NPS units located in nearby class I areas. 

Neither do these PSD/adverse impact protections extend: 1) to 

class II areas, which comprise the bulk of NPS units, 2) to 

existing emitting facilities, or 3) to facilities smaller than 

those designated in the statute. 

Subpart II of part C of the CAA deals with visibility protection 

in certain NPS units. It is both broader and narrower in scope 

than subpart I. It is broader because it addresses existing as 

well as future visibility impairment; it is narrower because its 

protections are afforded only to "mandatory class I areas" i.e., 

statutorily defined class I areas that cannot be redesignated as 

a less protected class. In addition, it limits the role of the 

Secretary of the Interior in the process of protecting visibility 

in NPS units to a consultative one. 
P.20 

In this regard, Congress has declared 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).) 

The statute directs the Administrator of EPA to promulgate 

regulations to carry out this national goal (see id. 

§ 7491(a)(4)) and, after consultation with the Secretary of the 

Interior, to promulgate "a list of mandatory class I Federal 

areas in which he determines visibility is an important value." 

(Id. § 7491(a)(2).) The "mandatory class I Federal areas" 

designated here are the specific NPS units described in section 

7472(a) as not being subject to redesignation to another class. 

Regulations adopted by EPA pursuant to the CAA require state 

implementation plans to provide for notice to the Secretary of 

the Interior of the anticipated impacts on visibility in any 

Federal Class I area of any of those new major emitting 

facilities subject to the PSD permit process. (See 40 C.F.R. 

§ 51.307(a)(1).) These plans also must provide for 

" [consideration" of any analysis by the Secretary indicating 

that the new source will adversely affect a class I area. (See 

id. § 51.307(a)(3).) Unlike the PSD regulations, those 

pertaining to visibility protection also purport to govern new 

sources proposing to locate in non-attainment (non-"clean air") 

areas, if they will have an impact on visibility in any mandatory 

Class I area. (See _id_. § 51.307(b)(2).) 

Apart from the consultative and analytical roles assigned to the 

Secretary of the Interior, the statute entrusts to the states the 

implementation of the national goal of preventing and remedying 

visibility impairment. Pursuant to regulations to be adopted by 

the EPA Administrator, state implementation plans must be 

designed to accomplish "reasonable progress" toward that national 

goal. (Id. § 7491(b)(2).) (EPA's regulations require each state 

plan to include a long-term (10-15 years) strategy for achieving 

that "reasonable progress." (40 C.F.R. § 51.306(a)(1).) In 

determining the reasonableness of its progress, each state is 

authorized to consider the cost, energy and other "nonair 

quality" impacts of measures which it might require for the 

reduction or prevention of visibility impairment. (42 U.S.C. 

§ 7491(g)(1), (2).) 

Pursuant to the statutory authority cited, the EPA Administrator 

has defined "visibility impairment" to mean "any 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).) Presumably, such 

visibility impairment could be caused by a variety of manmade air 

pollutants. 
P.21 

Existing regulations also afford the Secretary of the Interior a 

role in the identification of a specific resource described in 

the regulations which may be.affected by air pollution and which 

may be found worthy of protection by the states in their 

implementation plans. The regulations define "visibility in any 

mandatory Class I. Federal area" to include "any integral vista 

associated with that area" (id. § 51.301(y)) and authorize the 

Secretary of the Interior to identify integral vistas for 

consideration by the states in their implementation plans (id. § 

51.304(a)). An "integral vista" is defined to mean "a view 

perceived from within the mandatory Class I Federal -area of a 

specific landmark or panorama located outside the boundary of the 

mandatory Class I Federal area." (Id. § 51.301(n).) (The 

validity of these regulations is being challenged in pending 

litigation.) 

Under the regulations, the state is only required to consider in 

its cost/benefit analysis the harmful effects of air pollution 

upon any integral vista within its boundaries which has been 

identified by the Secretary according to criteria adopted by him. 

(Id. § 51.304(a), (d).) These criteria include, but are not 

limited to, "whether the integral vista is important to the 

visitor's visual experience" of the area. (Id. § 51.304(a).) 

Once an integral vista is identified properly, it is for the 

state to determine how much, if any, protection it should be 

afforded. 

The Secretary's opportunity to identify integral vistas for 

consideration by the states in this process expires under current 

regulations on December 31, 1985. Absent identification by the 

Secretary, each state would be authorized to determine for itself 

which vistas, if any, are integral to any of the mandatory Class 

I Federal areas within its boundaries, and should be considered 

for protection. Pursuant to this regulatory scheme, on January 

15, 1981, DOI published a proposed guideline of criteria for the 

identification of integral vistas and a preliminary list of 

specific integral vistas identified according to those criteria. 

(See 46 Fed. Reg. 3646.) 

The opportunity afforded the Secretary to identify adverse 

impacts on class I areas and associated integral vistas for their 

possible protection by the states represents DOI's primary role 

in the implementation of the national goal of preventing and 

reducing visibility impairment in the class I Federal areas 

described in the statute. Whether visibility in mandatory class 

I areas and associated integral vistas identified by him receive 

any protection from air pollution will depend upon the judgments 

of the concerned states in weighing the benefits of protection 

against its costs. 

There are other laws upon which the Secretary may be able to rely 

to some extent in any effort to protect NPS units from air 

pollution. Unlike the CAA, none of these authorities focusses on 
P.22 

air quality protection. On the other hand, some of them may 

afford the Secretary a more substantial role in their 

implementation than the CAA does. 

NATIONAL PARK SERVICE ORGANIC ACT 

The National Park Service Organic Act (16 U.S.C. § 1, e_t seq. ) 

provides that the Park Service 

shall promote and regulate the use of the 

Federal areas known as national parks, 

monuments, and reservations .. . by such 

means and measures as conform to the 

fundamental purpose of the said parks, 

monuments, and reservations, which purpose is 

to conserve the scenery and the natural and 

historic objects and the 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. (Id. § 1.) 

Section 3 of that title directs the Secretary of the Interior to 

"make and publish such rules and regulations as he may deem 

necessary or proper for the use and management" of such areas. 

In 1978 Congress amended NPS legislation to reassert that the 

various areas of the NPS should be maintained in a manner 

consistent with the purpose established in title 16 U.S.C. § 1. 

More specifically, it declared: 

» 

Congress further reaffirms, declares, and 

directs that the promotion and regulation of 

the various areas of the National Park System 

. . . shall be consistent with and founded in 

the purpose established by section 1 [of 

title 16], to the common benefit of all the 

people of the United States. The 

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 by Congress. (16 

U.S.C. § la-1.) 
P.23 

The Organic Act was enacted pursuant to the Property Clause of 

the United States Constitution, which empowers Congress "to 

dispose of and make all needful Rules and Regulations respecting 

the Territory or other Property belonging to the United States . 

. . ." (U.S. Const, art. IV, § 3, C1.2.) 

Two early United States Supreme Court.decisions confirmed 

Congress' authority under the Property Clause to regulate 

activity occurring on non-federal property. (See Camfield v. 

United States, 167 U.S. 518 (1897) [upholding federal statute 

construed to prohibit fences on private land which had the effect 

of enclosing federal lands]; United States v. Alford, 274 U.S. 

264 (1927) [upholding federal statute construed to prohibit the 

building of fires on private land near federal land without 

extinguishing them thereafter].) 

The Court acknowledged the continued existence of that extraterritorial legislative authority of Congress more recently in 

Kleppe v. New Mexico, 426 U.S. 529 (1976). While the Court 

declined to define the limits of congressional power in that 

context, because the case before it did not demand that 

delineation, it nonetheless reiterated that "regulations under 

the Property Clause may have some effect on private lands not 

otherwise under federal control." (I_d. at 546) 

Several subsequent federal appellate decisions have upheld the 

application of federal laws and implementing regulations to nonfederal lands within the boundaries of federal areas to further 

the purposes for which those federal areas are held. As the 

Ninth Circuit has observed: 

[The Property Clause] grants to the United 

States power to regulate conduct on nonfederal land when reasonably necessary to 

protect adjacent federal property or 

navigable waters. (United States v. Lindsey, 

595 F.2d 5, 6 (9th Cir. 1979).) 

Pursuant to that analysis, statutes and regulations prohibiting 

or regulating activities within a federal conservation area 

regularly are applied to private inholdings. 

For example, in Free Enterprise Canoe Renters Ass'n v. Watt, 711 

F. 2d 852 (8th Cir. 1983), the Eighth Circuit upheld the 

application to non-federal land of a National Park Service 

regulation prohibiting the "'delivery or retrieval within the 

boundaries of Ozark National Park Scenic Riverways' of rented 

watercraft without a permit." (!__• at 856.) The court declared: 

It is undisputed that the United States acted 

within its constitutional authority in 

attempting to regulate the business 

activities of the members of the [plaintiff] 

Association as they affect the ONSR, even 

10 
P.24 

though members themselves may never enter 

federally owned property, but strictly keep 

to state or county roads and rights-of-way 

within the ONSR. -(Id. at 855-856.) 

In reaching that conclusion, the court cited its earlier 

construction of the Property Clause in State of Minnesota by 

Alexander v. Block, 660 F.2d 1240 (8th Cir. 1981), cert, denied, 

455 U.S. 1007, in which it had 

concluded that "[u]nder this authority to. 

protect public land, Congress* power must 

extend to regulation of conduct on or off the 

public land that would threaten the 

designated purpose of federal lands." -.Id* at 

1249 (footnote omitted). See also United 

States v. Richard, 636 F.2d 236, 240 (8th 

Cir. 1980)(per curiam) ("federal regulation 

may exceed federal boundaries when 

necessary"), cert, denied, 450 U.S. 1033 

. . . (1981) ... . (711 F.2d at 856.) 

Accordingly, the Free Enterprise court affirmed both the criminal 

convictions of Association members for violating the regulation 

by retrieving canoes from non-federal land situated within the 

boundaries of the federal area without a permit, and the denial 

of the Association's civil claim for an injunction against the 

enforcement of that regulation on non-federal lands. (Id. at 

858.) 

In State of Minnesota by Alexander v. Block, supra, 660 F.2d 

124D, the court similarly had upheld the application of federal 

law barring the use of motorized craft within a federally 

designated wilderness area to lands and waters under state 

jurisdiction falling within the boundaries of that area. In 

explanation of Congress' authority to regulate activities on 

non-federal land, the court reasoned: 

Congress clearly has the power to dedicate 

federal land for particular purposes. As a 

necessary incident of that power, Congress 

must have the ability to insure that these 

lands be protected against interference with 

their intended purposes. As the Supreme 

Court has stated, under the property clause 

"[Congress] may sanction some uses and 

prohibit others, and may forbid interference 

with such as are sanctioned." McKelvey v. 

United States, 260 U.S. 353, 359 . . . (1922) 

(emphasis added). (660 F.2d at 1249.) 

Applying that analysis to the federal statutes under attack in 

that case, the court observed: 

11 
P.25 

Thus, if Congress enacted the motorized use 

restrictions to protect the fundamental 

purpose for which the [wilderness area] had 

been reserved, and if the restrictions .. . 

reasonably relate to that end, we must 

conclude that Congress acted within its 

constitutional prerogative. (I__. at 1250.) 

Concluding that the motorized use restrictions were a small part 

of an elaborate system of regulation considered necessary to 

preserve the area as a wilderness, the court held "that Congress 

acted within its power under the Constitution to pass needful 

regulations respecting public lands." (I_d_. at 1251, footnote 

omitted.) 

Still earlier, the same court held that under the Property Clause 

Congress could prohibit hunting on waters within the boundaries 

of Voyageurs National Park in Minnesota, even though the waters 

were subject to state jurisdiction. .(United States v. Brown, 552 

F.2d 817, 821 (8th Cir. 1977) cert, denied, 431 U.S. 949 (1977).) 

In Brown, the court upheld a conviction for violating Park 

Service ..regulations against hunting in a national park. (_Ic[. at 

819.) The hunter conceded that he was hunting ducks from a boat 

on waters within the park, but argued that the regulation did not 

apply to his conduct because the waters were owned by the state. 

In an alternative holding the court rejected this defense. The 

court declared: 

Assuming arguendo that the state did not cede 

jurisdiction over the waters in the park, we 

. further conclude that the federal regulations 

prohibiting hunting in Voyageurs Park were a 

constitutional exercise of congressional 

power under the Property Clause. (___[- at 

821, footnote omitted.) 

It would thus appear that by the adoption of the Organic Act, as 

amended,. Congress has delegated to the Secretary of the Interior 

the general authority to impose reasonable regulations upon 

private inholdings in NPS units for the protection of those units 

and the primary purposes for which they were established and are 

maintained. Other specific examples of such delegation appear in 

16 U.S.C. § 1902 ("all activities resulting from the exercise of 

valid existing mineral rights on patented or unpatented mining 

claims within any area of the National Park System shall be 

subject to such regulations prescribed by the Secretary of the 

Interior as he deems necessary or desirable for the preservation 

and management of those areas."); and 16 U.S.C. la-2(h) 

(authorizing the Secretary to "promulgate and enforce regulations 

concerning boating and other activities on or relating to waters 

located within areas of the National Park System, including 

waters subject to the jurisdiction of the United States . . . .") 

12 
P.26 

However, most air pollution harmful to'NPS units does not 

originate within NPS units. The issue is whether NPS Organic ^ct 

authority may be applied to air polluting activities occurring 

outside those units. 

The court decisions do not yet recognize congressional 

delegations of regulatory authority to federal land managers— 

such as the Secretary—as including extra-territorial 

jurisdiction for the protection of lands within their 

jurisdiction. However, it has been suggested that existing laws 

governing regulatory jurisdiction over inholdings ccjuld support 

that recognition. 

The general responsibilities of the Secretary of the Interior 

have long been recognized by the Supreme Court: 

The Secretary is the guardian of the people 

of the United States over the public lands. 

The obligations of his oath of office oblige 

him to see that the law is carried out, and 

that none of the public domain is wasted or 

is disposed of to a party not entitled to it. 

(Knight v. U.S. Land Association, 142 U.S. 

161, 181 (1891).) 

That prescription, considered in light of the Court's 

acknowledgment that Congress may "forbid interference with" the 

particular purposes and uses for which it has dedicated federal 

land (see McKelvey v. United States, 260 U.S. 353, 359 (1922), 

logically would appear to be as supportive of the Secretary's 

efforts to protect NPS units from external threats as it has been 

found applicable to internal threats. 

Indeed, the analyses of the Eighth and Ninth Circuits discussed 

above in the latter context seem equally appropriate to the 

former. There is no obvious reason why the "power to regulate 

conduct on non-federal land when reasonably necessary to protect 

adjacent federal property" (see United States v. Lindsey, supra, 

595 F.2d at 6) should extend to internally-adjacent, but not 

externally-adjacent non-federal lands in comparable promixity to 

the federal holdings. Similarly, the court's explanation of 

congressional authority to regulate inholdings in State of 

Minnesota, supra, 660 F.2d at 1249-1250, seems equally suited to 

external threats. 

In State of Minnesota the court first noted the Supreme Court's 

recent reminder that "regulations under the Property Clause may 

have some effect on private lands not otherwise under Federal 

control." (Kleppe v. New Mexico, supra, 426 U.S. at 546.) It 

pointed out that in Kleppe the high court had relied upon 

Camfield v. United States, in which it had concluded many years 

earlier 

13 
P.27 

that Congress possessed the power to control 

conduct occurring off federal property 

through its "power of legislating for the 

protection of the public lands, though it may 

thereby involve the exercise of what is 

ordinarily known as the police power, so long 

as such power is directed solely to [the 

public lands'] own protection." Camfield v. 

United States, supra, 167 U.S. at 526 ... . 

(State of Minnesota, supra, 660 F.2d at 

1249.) 

From this premise, the court continued: 

Under this authority to protect public land, 

Congress' power must extend to regulation of 

conduct on or off the public land that would 

threaten the designated purpose of federal 

lands. Congress clearly has the power to 

dedicate federal land for particular 

purposes. As a necessary incident of that 

power, Congress must have the .ability to 

insure that these lands be protected against 

interference with their intended purposes . . 

. . Thus, if Congress enacted the . . . 

restrictions to protect the fundamental 

purpose for which the [federal area] had been 

reserved, and if the restrictions . . . 

reasonably relate to that end, we must 

conclude that Congress acted within its 

constitutional prerogative. (Id. at 1249-

1250, footnote omitted.) 

Despite the logical applicability of the foregoing analysis to 

external threats, it must be acknowledged that the courts have 

yet to recognize secretarial regulatory authority under existing 

law to protect NPS units from those threats. While the 

Secretary's responsibilities have been identified, his means of 

acquitting them have not. 

The tension between the clearly perceived secretarial duty and 

the less clearly delineated authority to acquit it is apparent in 

three successive opinions of the U.S. District Court for the 

Northern District of California in a case brought to compel the 

Secretary to use his powers to protect Redwood National Park from 

damage allegedly caused or threatened by certain logging 

operations on privately owned land on the periphery of the park. 

In the first of the three, in denying Interior Department motions 

to dismiss the action and for summary judgment, the court cited 

both the Organic Act and the Redwood National Park Act (16 U.S.C. 

§§ 79a-79j) as empowering the Secretary to protect the park from 

the threats perceived. (Sierra Club v. Department of Interior, 

14 
P.28 

376 F. Supp. 90, 93 (N.D.Cal. 1974).) However, it was the 

specific mandate of the Redwood legislation upon which the court 

relied to discern specifically enforceable duties. 

We are of the opinion that the terms of the 

statute, especially § 79c(e), authorizing the 

Secretary "in order to afford as full 

protection as is reasonably possible to the 

timber, soil, and streams within the 

boundaries of the park"—"to acquire 

interests in land from, and to enter into 

contracts and cooperative agreements with, 

the owners of land on the periphery of the 

park and on the watersheds tributary to 

streams within the park"—impose a legal duty 

on the Secretary to utilize the specific 

powers given to him whenever reasonably 

necessary for the protection of the park and 

that any discretion vested in the Secretary 

concerning time, place and specifics of the 

exercise of such powers is subordinate to his 

paramount legal duty imposed .. . to protect 

the park. (376 F. Supp. at 961) 

In the second opinion, after trial, the court described the issue 

for decision as whether the Secretary had taken reasonable steps 

to protect the resources of Redwood National Park and, if not, 

whether his failure to do so was arbitrary, capricious or an 

abuse of discretion. (Sierra Club v. Department of Interior, 398 

F. Supp. 284, 286 (N.D.Cal. 1975).) In reaching its conclusion 

that^ the Secretary had not carried out his responsibilities 

properly, the court noted: 

[T]he conduct of the Secretary must be 

considered in the light of a very unique 

statute—a statute which did more than 

establish a national park; it also expressly 

vested the Secretary with authority to take 

certain specifically stated steps designed to 

protect the Park from damage caused by 

logging operations on the surrounding 

privately owned lands. (398 F. Supp. at 

286.) 

Accordingly, while once again citing both the Organic Act and the 

Redwood National Park Act in support of its general conclusion, 

the court's order setting forth the specific "reasonable steps" 

that the Secretary might be obliged to take "within a reasonable 

time" to acquit his statutory responsibilities included only 

those actions identified in the "unique" Redwood park enabling 

legislation, to wit: acquiring interests in land and/or entering 

into cooperative agreements with adjoining landowners (see 16 

U.S.C. § 79c(e)), and modifying park boundaries (see id. 

§ 79b(a)). (398 F. Supp. at 294.) 

15 
P.29 

The remainder of the court's order revealingly included within 

possible secretarial action requests to Congress for additional 

funds and for clarification as to "whether the powers and duties 

of defendants, as herein found, are to remain or should be 

modified." (398 F. Supp. at 294) In short, when it came to 

implementing its determination that the Secretary was obliged to 

act to carry out his statutory duties', the court implicitly 

acknowledged that additional congressional action would be 

necessary before the Secretary would be empowered to do anything 

to that end not specified in the Redwood legislation. 

Finally, in its third opinion, issued approximately a year 

later—after the Secretary reported essentially that he had 

apprised Congress of the state of the matter, and had neither 

funds nor authority to take the other actions proposed by the 

court in its second opinion—the court purged the Secretary of 

his previously found failure. (Sierra Club v. Department of 

Interior, 424 F. Supp. 172, 175-176 (N.D.Cal. 1976).) The court 

observed: 

The court further finds that, in order 

adequately to exercise its powers and perform 

its duties in a manner adequately to protect 

the Park, Interior now stands in need of new 

Congressional" legislation and/or new 

Congressional appropriations. (Id_. at 175.) 

Thus, it would seem clear that the Redwood cases did not support 

the notion that the Organic Act endows the Secretary with 

extensive extra-territorial jurisdiction which would allow him to 

protect NPS units from threats originating on lands without them. 

To the contrary, the clear implication of these cases is that the 

Secretary's extra-territorial power is limited to that expressly 

identified by Congress. 

At least partly in response to the Redwood cases, Congress 

amended the Organic Act in 1978, adopting what is now 16 U.S.C. § 

la-1. In submitting a draft bill to Congress for the purpose of 

expanding Redwood National Park, the Secretary of the Interior 

had sought express authority to regulate timbering activities on 

non-federal lands adjacent to the park in order to protect park 

resources from those activities. (See H. Rep. No. 95-531, 95th 

Cong., 1st Sess. 32-34 (August 5, 1977); S. Rep. No 528, 95th 

Cong. 1st Sess. 18-20 (Oct. 21, 1977).) Whether the Secretary's 

motivation in so doing was to clarify existing authorities or to 

create new ones is not clear. In any event, while the measure 

was adopted by the House of Representatives, it was rejected by 

the Senate on the ground that the problems to be addressed at 

Redwood National Park were "too urgent to place reliance on such 

a new concept" (i.e., legislation authorizing extra-territorial 

regulations). (S. Rep. No. 528, supra, 8.) Instead, Congress 

enacted the language now contained in section la-1. 

16 
P.30 

In Sierra Club v. Andrus, 487 F. Supp. 443 (D.D.C. 1980), the 

court addressed the claim that the Secretary had failed to carry 

out his duties under the newly amended Organic Act, inter alia. 

The claim was based upon the Secretary's failure to assert and 

protect federal reserved water rights alleged to be threatened by 

various energy-related developments external to NPS units which 

sought to establish water rights under state law. 

The court first identified the responsibilities of the Secretary 

by reference to the legislative history of the 1978 amendment to 

the Organic Act set forth in title 16 U.S.C. § la-1.: 

"The Secretary has an absolute duty, which is 

not to be compromised, to fulfill the mandate 

of the [Organic] Act to take whatever actions 

and seek whatever relief as will safeguard 

the units of the National Park System." 

Senate Report 95-528, 95th Cong., 1st Sess., 

9 (October 21, 1977) ... . 

Thus, it seems clear that in the event of a 

real and immediate water supply threat to the 

scenic, natural, historic or biotic resource 

values of the [NPS units there involved], the 

Secretary must take appropriate action. 

However, nowhere in either 16 U.S.C. §§ 1 or 

la-1 is there a specific direction as to how 

the protection of Park resources and their 

federal administration is to be effected . . 

. . The Court concludes that defendants have 

broad discretion in determining what actions 

are best calculated to protect Park 

resources. (487 F. Supp. at 448.) 

The court then enumerated actions that the Secretary might take 

if the threats alleged by plaintiffs were found to be "real and 

immediate." 

Such actions may include, but are not limited 

to: 1) asserting reserved water rights, 2) 

acquiring water rights and rights-of-way, 16 

U.S.C. § 17j-2 (1976), 3) denying the land 

exchange and rights-of-way which may 

constitute or aid a threat to Park resources, 

43 U.S.C.A. §§ 1716, 1761, 1765 (West Supp. 

1979), or 4) bringing trespass or nuisance 

actions if appropriate. (Ibid.) 

However, because the court found that there was no real or 

immediate threat to the Park resource alleged by plaintiffs to be 

in jeopardy—i.e., reserved water rights—it concluded that the 

Secretary's failure to assert those rights had a rational basis 

and dismissed the actions. (Id. at 450.) 

17 
P.31 

It is arguable that the court's discussion of actions that the 

Secretary might take to protect Park resources was dictum because 

of its preliminary conclusion that no threat existed which 

required any action on his part. Even if that discussion was- not 

dictum, however, two things must be acknowledged: Most of the 

actions described—reserved water rights assertion, acquisition 

of rights and denial of exchanges or rights to others—were 

authorized specifically by independent legislative or clearly 

established common law sources. For the remaining possible 

actions—bringing trespass or nuisance actions, if appropriate— 

the court offered no further explanation to demonstrate their 

viability. While it is understandable that it would not engage 

in extended analysis of the possibility of such actions in view 

of its conclusion that no actions were required, the court's 

reference to reliance upon these common law remedies provides no 

guidance in their possible use for the protection of NPS units 

from external threats. (These remedies are discussed further 

below.) 

In addition to the foregoing constitutional and statutory 

concerns, there is an administrative one. Traditionally, the 

exercise of regulatory jurisdiction pursuant to the Organic Act 

has been limited to activities occurring within the boundaries of 

NPS units. While that past practice does not automatically bar a 

more expansive interpretation of the Act to authorize 

extraterritorial regulation, it seems reasonable to suppose that 

the validity of such regulation would be subjected to challenge 

in the courts by newly affected parties. In such challenge, both 

the Secretary of the Interior's long standing interpretation of 

his regulatory power under the Organic Act as relating to 

activities within the boundaries of NPS units and the absence of 

recent judicial extension of federal regulatory power generally 

under the Property Clause would militate against acceptance of 

that broader interpretation. Under the circumstances, the 

utility of the administrative reinterpretation of the Organic Act 

to support new regulation of park-threatening activities on nonfederal lands outside the boundaries of NPS units remains 

untested and uncertain. 

It is also possible that the Organic Act may be used in 

conjunction with other law to provide an additional means for the 

protection of NPS units from external threats. That possibility 

arises when the language of 16 U.S.C. § la-1 is considered in 

light of the Secretary's statutory duties relating to the 

administration of federal lands other than NPS units. 

For example, federally owned coal located without the boundaries, 

but in the vicinity of, NPS units may be leased in the discretion 

of the Secretary of the Interior. (30 U.S.C. § 201(a).) The 

manner in which that discretion is exercised obviously may have 

an effect on nearby NPS units. The question is whether the 

mandate of the Organic Act has any bearing on the Secretary's 

exercise of that discretion. 

18 
P.32 

In the context of the "promotion and regulation" of NPS units 

consistently with the original Act's purpose, the relevant 

language reads: 

The 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 by Congress. (16 U.S.C. 

§ la-1.) 

The legislative history of section la-1 does not clarify the 

limits of its application. On the one hand, it could be argued 

from the context of the statute that the policy set forth therein 

relates solely to the regulation of activities occurring within 

NPS units as those activities may bear upon the purposes for 

which such lands have been dedicated. If so, the statute 

provides'" no additional guidance for dealing with external 

threats. 

On the other hand, because of its inherent ambiguity, the statute 

could be construed to relate to the total range of programmatic 

discretion vested in the Secretary under a variety of laws, 

including the coal leasing statutes. How the Secretary exercises 

that discretion could have relevance to the "promotion" of NPS 

units. If that interpretation were substantiated, the statutory 

polity could be useful in the Secretary's attempt to protect NPS 

units from external threats originating on other lands under his 

jurisdiction. 

However, the latter interpretation would itself generate further 

interpretive problems. The last clause of the excerpt quoted 

from section la-1 excepts from the generally protective thrust of 

the statute those activities which "may have been or shall be 

directly and specifically provided by Congress." The question 

is: To which statutorily authorized activities does this 

exception apply? 

It can be argued that all laws authorizing the Secretary to 

undertake or oversee developmental activities—such as the coal 

leasing or surface mine permitting statutes—are "directly and 

specifically provided by Congress," and so excepted from the 

policy defined in section la-1. Another reading of the exception 

would limit it to those secretarial duties mandated by Congress. 

The narrowest interpretation of the exception would require 

statutory acknowledgement of the possible adverse consequences of 

authorized or mandated activities to NPS units before it became 

applicable. In these last cases there could be little question 

that Congress meant the exception to apply. 

19 
P.33 

Neither section la-1 nor its legislative history speaks directly 

to the issue, however, and it would appear that resolution of 

conflicts between the directive of section la-1 and other 

statutory authorities must be undertaken on an ad_ hoc basis 

pending judicial clarification. For all of the foregoing 

reasons, the Organic Act, whether utilized independently or in 

conjunction with other laws, currently is neither a certain nor 

an expeditious tool for the protection of NPS units from the 

harmful effects of air pollution originating outside those units. 

Other statutory programs administered by the Secretary have 

specific reference to the protection of NPS units. The Surface 

Mining Control and Reclamation Act is one. 

SURFACE MINING CONTROL AND RECLAMATION ACT 

The primary protections for NPS units under this Act (30 U.S.C. 

§1201, et seq. ) can be found in section 1272. Insofar as 

relevant to our inquiry, section 1272(e) provides that after 

August 3, 1977, and subject to "valid existing rights", no 

surface coal mining operations which did not exist on that date 

shall be permitted: 

(1) on any lands within the boundaries of 

units of the .National Park System, the 

National Wildlife Refuge System, the National 

System of Trails, the National wilderness 

Preservation System, the Wild and Scenic 

Rivers System, including study rivers 

designated under section 1276(a) of title 16 

and National Recreation Areas designated by 

Act of Congress; 

(3) which will adversely affect any publicly 

owned park or places included in the National 

Register of Historic Sites unless approved 

jointly by the regulatory authority and the 

Federal, State, or local agency with 

jurisdiction over the park or the historic 

site; 

(5) . . . within three hundred feet of any . 

. . public park ... . 

It should be emphasized that these prohibitions against new 

surface coal mining within the NPS units identified (including 

private inholdings within the boundaries of these units), and 

within a three-hundred foot buffer zone surrounding any "public 

park," and on other land when it will "adversely affect" the 

public lands indicated, are subject to an important exception: 

20 
P.34 

Each cf the three mining prohibitions set forth is subject to 

"valid existing rights." Until recently, those rights generally 

were defined as follows: 

A person possesses valid existing rights for 

an area protected under section [1272(e)] on 

August 3, 1977, if the application of any of 

the prohibitions contained in that section to 

the property interest that existed on that 

date would effect a taking of the person's 

property which would entitle the person to 

just compensation under the Fifth and 

Fourteenth Amendments to the United States 

Constitution; (30 C.F.R. § 761.5(a).) 

.In addition, 

A person possesses valid existing rights if 

the person proposing to conduct surface coal 

mining operations can demonstrate that the 

coal is both needed for, and immediately 

adjacent to, an ongoing surface coal mining 

operation which existed on August 3, 1977. A 

determination that coal is "needed for" will 

be based upon a finding that the extension of 

mining is essential to make the surface coal 

mining operation as a whole economically 

viable; (Id^ § 761.5(c).) 

However, in a recent round of litigation challenging the 

Secretary's regulations under this Act, both regulatory 

definitions were remanded for his reconsideration upon a finding 

by the district court that he had failed to. comply with the 

notice and comment requirements of the Administrative Procedures 

Act. (In Re: Permanent Surface Mining Regulation Litigation, No. 

79-1144 (D.D.C. March 22, 1985) (Mem. Op. at pp. 4-11, 18-20).) 

Pending promulgation of acceptable regulations defining "valid 

existing rights," it is virtually impossible to provide any 

reasonably accurate analysis of the degree of protection provided 

NPS units by the foregoing prohibitions against certain surface 

coal mining. 

Apart from such "valid existing rights," the prohibitions against 

mining within the federal areas identified and within 300 feet of 

public parks are fairly straightforward. Less clear is the 

regulation of surface coal mining in areas outside these units 

which will "adversely affect any publicly owned park." (30 

U.S.C. § 1272(e)(3).) The Act sets forth no specific indication 

as to when surface coal mines may be found to threaten such 

adverse effect. 

For example, one relevant provision directs coal operators "to' 

effectively control erosion and attendant air and water pollution 

. . . ." (Id. § 1265(b)(4).) However, an attempt by the 

21 
Secretary to protect a 

emissions from surface 

down by the court as a 

(In Re: Permanent Sur 

1144 (D.D.C. May 16, 1 

ruled that only air po 

regulated under this s 

apparent assertion tha 

pollution stem from su 

erosion activities." 

"Moreover, if Congress 

regulations protecting 

straightforward manner 

opinion, the court rea 

itself (see 30 U.S.C. 

authority to regulate 

Clean Air Act ... . 

ir quality by regulating all fugitive dust 

coal mines under this provision was struck 

n overbroad interpretation of the statute. 

face Mining Regulation Litigation, No. 7 9-

980) (Mem. Op. at pp. 27-29).) The court 

llution related to erosion could be 

tatute, notwithstanding the Secretary's 

t in this context "most sources of air 

rface mining operations unrelated to 

(Id. at p. 28.) The court observed: 

wanted the Secretary to develop 

air quality, it could have done so in a 

." (I_d. at p. 29.) In a subsequent 

ffirmed its ruling, relying on the Act 

§ 1292(a)) to conclude that "EPA has the 

fugitive dust from surface mines under,the 

(July 6, 1984 mem. opn. at p. 34.) 

In the only reported cas 

issue of park protection 

Secretary of the Interio 

fugitive- dust at levels 

operation in the Alton C 

Canyon National Park wou 

not, however, exclude co 

adverse effects. In add 

the mining operation (in 

adversely affect the par 

land was "unsuitable" fo 

the United States Distri 

Interior of the U.S., 55 

e of which we are 

in the context of 

r Andrus concluded 

expected to result 

oal Fields in clos 

Id not adversely a 

nsideration of sue 

ition, he conclude 

eluding noise and 

k and, accordingly 

r mining. That de 

ct Court in Utah I 

3 F. Supp. 872 

aware tha 

section 

that sur 

from a m 

e proximi 

ffect the 

h dust in 

d that ot 

unsightli 

, determi 

cision wa 

ntern. v. 

t raised the 

1272, former 

face coal mine 

ining 

ty to Bryce 

park. He did 

ascertaining 

her aspects of 

ness) would 

ned that such 

s upheld by 

Dept. of 

(CD. Utah 1982) . 

In addition to the three specific proh 

section 1272(e), supra, the Act author 

interest which is or may be adversely 

mining to petition the Secretary of th 

designated as unsuitable for mining. 

Similarly, the Secretary is himself di 

there are federal lands which are unsu 

mining. (Id. § 1272(b).) Insofar as 

determination of unsuitability would r 

mining operations will "affect fragile 

such operations could result in signif 

historic, cultural, scientific, and es 

systems." (Id. § 1272(a)(3)(B).) The 

Utah Intern., supra, was precipitated 

pursuant to section 1272(c) by several 

interested in environmental protection 

ibitions set forth in 

izes any person "having an 

affected" by surface coal 

e Interior to have an area 

(30 U.S.C. § 1272(c).) 

rected to determine whether 

itable for surface coal 

relevant here, a 

equire a finding that the 

or historic lands in which 

icant damage to important 

thetic values and natural 

Alton decision upheld in 

by a petition filed 

individuals and groups 

Although "valid existing rights" are not expressly exempted from 

the statutory unsuitability petition process, a recent ruling of 

the Interior Board of Surface Mining Appeals has incorporated 

that exemption into the process. In that ruling the Board 

concluded that land which is open to surface coal mining as a 

22 
P.36 

result of valid existing rights cannot be designated unsuitable 

for mining pursuant to a petition filed under section 1272(c). 

(See In Re: Shavers Fork Watershed Unsuitability Petition, I3SMA 

81-64, 4 IBSMA 192, 197 (Dec. 10, 1982).) 

It is apparent that the current applicability of the "valid 

existing rights" exemption to both the specific prohibitions 

against surface coal mining set forth in section 1272(e) and the 

unsuitability petition process of section 1272(c) contributes to 

the substantial uncertainty concerning the amount- of protection 

from air pollution available to NPS units under the Surface 

Mining Control and Reclamation Act, as that Act was construed by 

the May 16, 1980, and July 6, 1984, opinions in In Re: Permanent 

Surface Mining Regulation Litigation, supra. 

COMMON LAW ACTIONS 

It has been suggested that protection of NPS units from external 

threats—such as air pollution—could be accomplished through 

traditional common law actions like those for nuisance or 

trespass, where appropriate. (See Sierra Club v. Andrus, supra, 

487 F. Supp. at 488.) (Because the same principles apply to the 

availability of both remedies, we will limit, our discussion to 

the former.) Initially, it must be noted that such remedies are 

cumbersome and by their nature can be invoked only after the 

damage is done or appears inevitable. 

More importantly, there currently is substantial doubt as to the 

availability of these remedies in this context because Congress 

has addressed air quality protection in NPS units--as elsewhere 

—comprehensively in the Clean Air Act (CAA) and the regulatory 

scheme mandated therein. This legislative initiative impinges 

upon both federal common law and state common law governing these 

remedies. 

In the early 1900's the United States Supreme Court utilized 

federal common law to resolve interstate air and water pollution 

problems, without labeling it as such. (See Georgia v. Tennessee 

Copper Co., 206 U.S. 230 (1907); Missouri v. Illinois, 200 U.S. 

496 (1906).) In 1971 the Tenth Circuit invoked the federal 

common law by name to address a claim by the State of Texas that 

pesticide runoff from the State of New Mexico .was polluting its 

waters, declaring: "Federal common law and not the varying common 

law of the individual States is .. . a basis for dealing in 

uniform standard with the environmental rights of a State against 

improper impairment by sources outside its domain." (Texas v. 

Pankey, 441 F.2d 236, 241 (10th Cir., 1971).) 

Subsequently, the Supreme Court adopted the same approach in 

another interstate water pollution dispute. "When we deal with 

air or water in their ambient or interstate aspects, there is a 

federal common law." (Illinois v. City of Milwaukee (Milwaukee 

I) 406 U.S. 91, 103 (1972), footnote omitted.) It explained that 

the courts had fashioned a federal common law "where there is an 

23 
P.37 

overriding federal interest in the need for a uniform rule of 

decision or where the controversy touches basic interests of 

federalism . . . . " (Id. at 105, n. 6.) 

Shortly after Milwaukee I was decided, Congress passed the 1972 

Amendments to the Federal Water Pollution Control Act (FWPCA), 

which created a permit system for the discharge of pollutants 

into interstate waters. (See 33 U.S.C. §§ 1251-1376.) In a 

subsequent stage of the water pollution dispute between Illinois 

and Milwaukee, the Supreme Court ruled that the federal common 

law of nuisance had been supplanted in the water pollution field 

by the adoption of the FWPCA. (Milwaukee v. Illinois (Milwaukee 

I_I) , 451 U.S. 304, 317 (1981).) The court declared: 

Federal common law is a "necessary 

expedient," . . . and when Congress addresses 

a question previously governed by a decision 

rested on federal common law the need for 

such an unusual exercise of lawmaking by 

federal courts disappears. (Id. at 314, 

citation omitted.) 

The Court noted that the Pankey case, upon which it relied 

extensively in Milwaukee I, had itself observed that "federal 

common law applies '[u]ntil the field has been made the subject 

of comprehensive legislation or authorized administrative 

standards ....' " (Ibid., quoting Texas v. Pankey, supra, 441' 

F.2d at 241.) The appropriate question, the Milwaukee II court 

said, was "whether the legislative scheme 'spoke directly to a 

question' . . . not whether Congress had affirmatively proscribed 

the use of federal common law." (451 U.S. at 315.) 

The Court concluded that in context of the problem before it, 

Congress has not left the formulation of 

appropriate federal standards to the courts 

through application of often vague and 

indeterminate nuisance concepts and maxims of 

equity jurisprudence, but rather has occupied 

the field through the establishment of a 

comprehensive regulatory program supervised 

by an expert administrative agency. (Id. at 

317.) 

Further, with respect to the content of the legislative approach 

to the problem perceived, the Court declared: 

Although a federal court may disagree with 

the regulatory approach taken by the agency 

with responsibility for issuing permits under 

the Act, such disagreement alone is no basis 

for the creation of federal common law. . . . 

24 
P.38 

The question is whether the field has been 

occupied, not whether it has been occupied in 

a particular manner. (Id. at 323, 324.) ' 

Two months later, in a case rejecting the common law claims of 

fishermen against various governmental entities for damage to 

fishing grounds caused by discharges and ocean dumpage of sewage 

and other waste, the Court laid to rest any doubt in the matter. 

The Court has now held that the federal 

common law of nuisance in the area of water 

pollution is entirely preempted by the more 

comprehensive scope of the FWPCA ... . 

(Middlesex Cty. Sewerage Auth. v. Sea 

Clammers, 452 U.S. 1, 21-22 (1981).) 

While the Supreme Court has yet to address the issue of 

preemption of any federal common law of nuisance in the area of 

air pollution, the foregoing analysis of the closely analogous 

problem in the water pollution area would seem controlling. The 

CAA, like the FWPCA, establishes a comprehensive regulatory 

program supervised by the same expert administrative agency—EPA. 

Whatever' objections may be posed to the manner in which Congress 

has elected to regulate air pollution under that program, it can 

hardly be denied that Congress has addressed the question 

directly. 

On this reasoning, at least one federal court has dismissed a 

nuisance action for damages brought by the United States against 

a landfill operator, declaring: 

Since Congress has addressed the problem of 

air pollution in the Clean Air Act, I find 

that the statute pre-empts plaintiff's 

federal common-law claim for nuisance. 

(United States v. Kin-Buc, Inc., 532 F. Supp. 

699, 702 (D.N.J. 1982). 

Similarly, in successive opinions, the Second Circuit affirmed 

dismissal of federal common law nuisance claims brought against 

EPA (New England Legal Foundation v. Costle, 632 F.2d 936 (2 Cir. 

1980)) and a lighting company (New England Legal Foundation v. 

Costle, 666 F.2d 30 (2 Cir. 1981)) for the latter's use of a high 

sulfur fuel after EPA approval. While the court did not reach 

the "broad question of whether the Clean Air Act totally preempts 

federal common law nuisance actions based on the emission of 

chemical pollutants into the air" (id_. at 32), its analysis 

followed the rationale underlying preemption determinations: 

Our affirmance is specifically on the ground 

that the EPA's approval of [the lighting 

company's] use of high sulphur fuel precludes 

25 
P.39 

appellants from maintaining a common law 

nuisance action against [the company]. 

(Ibid.) 

It has been suggested that the CAA's "saving" clauses may 

preserve federal common law remedies. However, there would seem 

to be little basis for so concluding. 

In the section of the CAA authorizing "citizen suits," there is 

the following provision: 

Nothing in this section shall restrict any 

right which any person (or class of persons) 

may have under any statute or common law to 

seek enforcement of any emission standard or 

limitation or to seek any other relief . . . 

. (42 U.S.C. § 7604(e).) 

In Milwaukee II, however, the Supreme Court rejected the claim 

that practically identical language—substituting the word 

"effluent" for "emission"—contained in the citizen-suit section 

of the FWPCA (33 U.S.C. § 1365(e)) had the saving effect also 

argued for in that case. The Court noted: 

The subsection is common language 

accompanying citizen-suit provisions and we 

think it means only that the provision of 

such suit does not revoke other remedies. It 

most assuredly cannot be read to mean that 

the Act as a whole does not supplant formerly 

available federal common-law actions ... . 

(451 U.S. at 329; accord Kin-Buc, Inc., 

supra, 532 F. Supp. at 703.) 

It is suggestive of a "substantive" approach to preemption 

analysis that the Court found federal common law preempted by the 

FWPCA notwithstanding fairly specific evidence to the contrary in 

the relevant legislative history. As the Milwaukee II dissent 

argued: 

[T]he Court ignores express statements of 

legislative intent that contradict its 

position. The Senate Report accompanying the 

1972 legislation explicitly describes the 

congressional intent informing [33 U.S.C. 

§ 1365(e)]: 

"It should be noted, however, that 

the section would specifically 

preserve any rights or remedies 

under any other law. Thus, if 

damages could be shown, other 

remedies would remain available. 

Compliance with requirements under 

26 
P.40 

this Act would not be a defense to 

a common law action for pollution 

damages." S. Rep. NO 92-414, p. 81 • 

(1971), reprinted in 2 Legislative 

History of the Water Pollution 

Control Act Amendments of 1972 

(Committee Print compiled for the 

Senate Committee on Public Works by 

the Library of Congress). Ser. No.. 

93-1, p. 1499 (1973) (Leg. Hist.) 

This deliberate preservation of all remedies 

previously available at common law makes no 

distinction' between the common law of 

individual States and federal common law. 

(451 U.S. at 343, Blackmun, J., dissenting, 

footnote omitted.) 

Apparently, the Milwaukee II majority was guided by the 

appropriateness of the statutory solution—because of the 

latter's comprehensive approach to a complex problem requiring 

oversight by an expert administrative agency.— in finding federal 

common law had been preempted in the area of water pollution 

control by the FWPCA, nothwithstanding evidence of contrary 

congressional intent. A similar approach would seem likely with 

respect to air pollution and the CAA. 

The CAA also contains the following provision: 

[T]his chapter [title 42 U.S.C. §§ 7401-7642] 

shall not be construed as superseding or 

limiting the authorities and 

responsibilities, under any other provision 

of law, of the [EPA] Administrator or any 

other Federal official, department or agency. 

(42 U.S.C. § 7610(a).) 

It may be argued that this provision could be read to preserve 

the Secretary's option to utilize common law remedies—such as 

nuisance actions—to address sources of air pollution outside NPS 

units which threaten those units. By comparison, the FWPCA's 

similar "saving" clause is more qualified, preserving only "the 

authority or functions of any officer or agency of the United 

States not inconsistent with this chapter . . . ." (33 U.S.C. 

§ 1371(a) .) 

Neither Milwaukee II nor Seaclammers discussed the effect of 

section 1371(a) on their respective conclusions that the FWPCA 

preempted federal common law in the area of water pollution. 

Those preemption determinations, however, at least implicitly 

reject any "saving" effect of that section. Nonetheless, because 

of the more comprehensive "saving" language of the CAA provision 

embodied in 42 U.S.C. § 7610(a), it can be argued that the 

27 
P.41 

Court's implicit determination that 33 U.S.C. § 1371(a) does not 

preserve federal common law actions has less bearing on any 

similar argument which might be made under the CAA." 

However, it seems unlikely that the Supreme Court would conclude 

Congress preserved the viability of judicially created federal 

common law rights of action, such as those for nuisance, in this 

general formulation. If the Court was willing to find preemption of federal common law by the FWPCA notwithstanding the 

specific contrary legislative history noted by the dissent in 

Milwaukee II (and discussed above), it would seem unlikely to be 

swayed by the argument that the CAA sought to preserve federal 

common law by the general language of section 7610(a). (It would 

seem reasonable to suppose that the contrary view of a federal 

district court which had relied upon the court of appeal decision 

vacated in Milwaukee II (see United States v. Atlantic-Richfield 

Co. , 478 F. Supp. 1215, 1219 (D. Mont. 1979)) has lost its " 

foundation. (See Kin-Buc, Inc. supra, 532 F. Supp. at 702.)) 

Considering the tenor of the Court's preemption analysis under 

the FWPCA and the similarly comprehensive approach to air 

pollution under the CAA, little reliance can be placed upon 

sections 7604(e) and 7610(a) as preservers of a federal common 

law of nuisance in this context. 

There are other differences between the CAA and the FWPCA, of 

course, and only judicial interpretation can determine whether 

the former, like the latter, has "occupied the field" to the 

exclusion of federal common law. It is our opinion, however, 

that the Secretary cannot rely with confidence upon any federal 

common law of nuisance in any effort to protect NPS units from 

the adverse effects of air pollution generated outside the 

boundaries of those units. 

By implication Milwaukee II raises—but does not analyze or 

resolve—the possibility of the existence of another body of law 

which may support nuisance actions for relief from air pollution: 

the common law of the States. For comparison in discussing preemption of federal common law by federal statutes the Court 

observed: 

Contrary to the suggestions of respondents, 

the appropriate analysis in determining if 

federal statutory law governs a question 

previously the subject of federal common law 

is not the same as that employed in deciding 

if federal law pre-empts state law. In 

considering the latter question "'we start 

with the assumption that the historic public 

powers of the States were not to be 

superseded by the Federal Act unless that was' 

the clear and manifest purpose of Congress.'" 

Jones v. Rath Packing Co., 430 U.S. 519, 525 

(1977) (quoting Rice v. Santa Fe.Elevator 

28 
P.42 

Corp. , 331 U.S. 218, 230 (1947)). While we 

have not hesitated to find pre-emption of 

state law, whether express or implied, when 

Congress has so indicated, see Ray v. Atantic 

Richfield Co., 435 U.S. 151, 157 (1978), or 

when enforcement of state regulations would 

impair "federal superintendence of the 

field," Florida Lime & Avocado Growers, Inc. 

v. Paul, 373 U.S. 132, 142 (1963), our . 

analysis has included "due regard for the 

presuppositions of our embracing federal 

system, including the principle of diffusion 

of power not as a matter of doctrinaire 

localism but as a promoter of democracy." 

San Diego Building Trades Council v. Garmon, 

359 U.S. 236, 243 (1959). Such concerns are 

not implicated in the same fashion when the 

question is whether federal statutory or 

federal common law governs, and accordingly 

the same sort of evidence of a clear and 

manifest purpose is not required. Indeed, as 

noted, in cases such as the present "we start 

with the assumption" that it is for Congress 

not federal courts, to articulate the 

appropriate standards to be applied as a 

matter of federal law. (Milwaukee II, supra, 

451 U.S. at 316-317, footnote oo.i tted. ) 

The Court's general comparison did not expressly address the 

possibility that state common law may survive its conclusion of 

preemption of federal common law by the federal legislation. The 

dissent, however, did: 

By eliminating the federal common law of 

nuisance in this area, the Court in effect is 

encouraging recourse to state law whenever 

the federal statutory scheme is perceived to 

offer inadequate protection against pollution 

from outside the State, either in its 

enforcement standards or in the remedies 

afforded. This recourse is now inevitable 

under a statutory scheme that accords a 

significant role to state as well as federal 

law. But in the present context it is also 

unfortunate, since it undermines the Court's 

prior conclusion that it is federal rather 

than state law that should govern the 

regulation of interstate water pollution. 

Illinois v. Milwaukee, 406 U.S., at 102. 

Instead of promoting a more uniform federal 

approach to the problem of alleviating 

interstate pollution, I fear that today's 

decision will lead States to turn to their 

own courts for statutory or common-law 

29 
assistance in filling the interstices of the 

federal statute. (451 U.S. at 353-354, 

Blackmun, J. dissenting.) 

It is unclear whether the dissent's characterization of the 

availability of state common law would be accepted by the Court 

if the issue were presented for decision. As indicated, the 

majority discussed it only to describe the relative ease of 

finding preemption of federal common law. 

However, it is suggested that the very progression of pollution 

problem-solving discussed above—from state common law to federal 

common law to federal legislation—precludes reliance at this 

stage on the common law of the states relating to nuisance 

actions. Apparently, the impetus for the development of federal 

common law in this area was the inadequacy of differing concepts 

of state common law doctrines to deal with ambient pollutants. 

(See Texas v. Pankey, supra, 441 F.2d at 241.) As Milwaukee I 

suggested: "When we deal with air or water in their ambient or 

interstate aspects, there is a federal common law" because of the 

"overriding federal interest in the need for a uniform rule of 

decision.. . . ." (Milwaukee I, supra, 406 U.S. at 103, 105, n. 

6; see Hinderlider v. La Plata Co., 304 U.S. 92, 110 (1938).) In 

short, where federal concerns mandate the application of federal 

common law, state common law is superseded. 

That analysis has lost none of its force by the Court's 

subsequent conclusion that federal legislation removed the need 

for federal common law. Rather, the congressional initiative 

presumably addressed the same problem of disparate state common 

law doctrines, but in a more uniform and comprehensive manner. 

Under the circumstances, it would appear that an attempt to 

revert to the earlier reliance upon state common law is unlikely 

to succeed. 

Accordingly, on the basis of existing court decisions, 

substantial doubt exists as to the availability of federal or 

state common law actions for nuisance (or trespass) as means to 

protect NPS units from the adverse effects of air pollution 

generated outside those units. 

CONCLUSION 

Various laws may be utilized by the Department of the Interior to 

some extent to protect NPS units from the harmful effects of air 

pollution. None provides complete protection. 

Some authorities seem better suited for the task than others. 

Other authorities may have been preempted by the Clean Air Act. 

That Act addresses the problem of air pollution in NPS units and 

elsewhere comprehensively, and affords the Secretary 

opportunities to participate in that protection. 

30 
P.44 

To a certain extent the effectiveness of existing law to deal 

with this problem will be determined case by case- in the 

litigation process. Statutory mandates will have to be 

interpreted by the Secretary in the context of specific problems. 

Ultimately, those judgments will be tested and resolved in the 

courts, where the Justice Department is responsible for defending 

the interests of the United States. How those actions are 

prosecuted and defended will play a role in the development of 

the law for the protection of NPS units from the harmful effects 

of air pollution. 

Keith E. Eastin 

31