Opposition Brief — Bersani v. United States Environmental Protection Agency

OCTOBER TERM, 1988

JOHN A. BERSANI, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL

' PROTECTION AGENCY, ET AL.

JOSEPH ROBICHAUD AND CITIZENS IN SUPPORT OF

ATTLEBORO MALL, PETITIONERS

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

PETER R. STEENLAND, JR.

MARGARET N. STRAND

GERALD H. YAMADA

Acting General Counsel Attorneys

ANNE H. WILLIAMS-DAWE Department of Justice

CATHERINE A. WINER Washingion, D.C. 20530

Altorneys (202) 633-2217

Environmental Protection

Agency

Washington, D.C. 20460

cd

“

QUESTION PRESENTED

Whether the Administrator of the Environmental Pro-

tection Agency abused his discretion in determining, under

Section 404(c) of the Clean Water Act, 33 U.S.C. 1344(c),

that the development of a shopping mall in a 49.5-acre

wetland in Attleboro, Massachusetts, would have an unac-

ceptable adverse effect on wildlife. |

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TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Case:

United States v. Riverside Bayview Homes, Inc., 474 U.S.

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Statutes and regulations:

Administrative Procedure Act, § U.S.C. 701 ef seq.:

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(Il)

In the Supreme Court of the Anited States

OCTOBER TERM, 1988

No. 88-902

JOHN A. BERSANI, ET AL., PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

No. 88-929

JOSEPH ROBICHAUD AND CITIZENS IN SUPPORT OF

ATTLEBORO MALL, PETITIONERS

Vv.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, ET AL.

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUII

BRIEF FOR THE FEDERAL RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (88-902 Pet. App.

la-29a) is reported at 850 F.2d 36.' The opinion of the dis-

trict court (Pet. App. 32a-63a) is reported at 674 F. Supp.

405. The Final Determination of the Assistant Administra-

tor (Pet. App. 64a-108a) is unreported.

' Unless otherwise indicated, “Pet. App.” reters to the appendix to

the petition in No. 88-902.

(1)

2

JURISDICTION

The judgment of the court of appeals (Pet. App. 30a)

was entered on June 8, 1988. A petition for rehearing was

denied on September 2, 1988 (Pet. App. 109a-110a). The

petitions for a writ of certiorari were filed on December 1,

1988. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. The Clean Water Act, 33 U.S.C. 1251 ef seq., was

enacted in order to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s Waters”

(Sec. 101, 33 U.S.C. 1251). Under Sections 301 and 502 of

the Act, 33 U.S.C. 1311 and 1362, any discharge of

dredged or fill materials into “navigable waters” — defined

to include “waters of the United States”—is forbidden

unless authorized by a permit issued by the Secretary of

the Army, acting through the Corps of Engineers, pur-

suant to Section 404, 33 U.S.C. 1344 (1982 & Supp. IV

1986). See United States v. Riverside Bayview Homes,

Inc., 474 U.S. 121, 123 (1985).

In deciding whether to issue a permit under Section 404,

the Corps is governed by guidelines developed jointly by

the Secretary and by the Administrator of the Environ-

mental Protection Agency (EPA). 33 U.S.C. 1344(b) (1982

& Supp. IV 1986). Those guidelines provide that “no

discharge of dredged or fill material shall be permitted if

there is a practicable alternative to the proposed discharge

which would have less adverse impact on the aquatic

ecosystem” (40 C.F.R. 230.10(a)). The guidelines further

specify that an alternative is “practicable” if “it is available

and capable of being done, after taking into consideration

cost, existing technology, and logistics in light of overall

project purposes” (40 C.F.R. 230.10(a)(2)). Moreover, an

OO EE EEeoOw'

3

otherwise available alternative may be considered even if it

is “not presently owned by the applicant,” provided that

such alternative can “reasonably be obtained, utilized, ex-

panded or managed in order to fulfill the basic purpose of

the proposed activity” (ibid.).

The guidelines also state two presumptions that govern

the Corps’ evaluation of practicable alternatives. First,

where a proposed project will affect a “special aquatic

site” (which is defined to include wetlands (see Pet. App.

36a)), but the project does not by its nature require access

to such an aquatic site, the guidelines state that “prac-

ticable alternatives that do not involve special aquatic sites

are presumed to be available, unless clearly demonstrated

otherwise” (40 C.F.R. 230.10(a)(3)). Second, where the

project will affect a special aquatic site, “all practicable

alternatives to the proposed discharge which do not in-

volve a discharge into a special aquatic site are presumed

to have less adverse impact on the aquatic ecosystem,

unless clearly demonstrated otherwise” (ibid.).

Section 404(c), 33 U.S.C. 1344(c), authorizes the Ad-

ministrator of the EPA to veto a permit that otherwise

would be issued by the Corps, where the Administrator

determines that the proposed discharge “will have an unac-

ceptable adverse effect on municipal water supplies,

shellfish beds and fishery areas (including spawning and

breeding areas), wildlife, or recreational areas.” An “unac-

ceptable adverse effect” is one that has an “impact on an

aquatic or wetland ecosystem which is likely to result in

significant degradation of municipal water supplies (in-

cluding surface or ground water) or significant loss of or

damage to fisheries, shellfishing, or wildlife habitat or

recreation areas” (40 C.F.R. 231.2(e)). The Administrator

must exercise that “veto” power in accordance with

established procedures. See 40 C.F.R. Pt. 231.

4

2. a. The present case concerns petitioner Pyramid

Companies’ proposed construction of a shopping mall in

certain wetlands, known as “Sweedens Swamp,” located in

Attleboro, Massachusetts. Sweedens Swamp is a 49.5-acre

wetland, which is part of an 80-acre site near Interstate 95.

It is undisputed that Pyramid’s proposed shopping center

would involve the discharge of dredged or fill materials in-

to “waters of the United States,” thereby requiring a per-

mit under Section 404 of the Clean Water Act. Pet. App.

3a, 6a, Ya.

Some time prior to April 1982, Pyramid’s predecessor,

the Edward J. DeBartolo Corporation, purchased the

swamp. At that time, there was a second, non-wetland site

available, only three miles away in North Attleboro,

Massachusetts, that could also have accommodated the

proposed shopping mall. On July 1, 1983, however, the

New England Development Company, a competitor of

Pyramid, began to purchase options to buy the North At-

tleboro site. Thereafter, in December 1983, Pyramid pur-

chased Sweedens Swamp from DeBartolo. Pet. App.

9a-lla, 40a.

In August 1984, Pyramid applied to the New England

regional division of the Corps for a permit to discharge in-

to Sweedens Swamp.? It sought to fill or alter 32 of the

49.5 acres of the swamp; to excavate nine acres of uplands

in an attempt to create artificial wetlands; and to alter 13.3

2 Because Massachusetts requires state approval for projects that

would fill wetlands, DeBartolo had previously applied to the

Massachusetts Department of Environmental Quality Engineering

(DEQE) for permission to build on Sweedens Swamp. DEQE initially

denied the application. Thereafter, in March 1985, DEQE granted ap-

proval to Pyramid for the project, based on an application of regula-

tions that were in effect when DeBartolo had applied. That determina-

tion was eventually upheld by the Massachusetts Supreme Judicial

Court. Pet. App. 9a-10a.

acres Of existing wetlands to improve its environmental

quality. Some time later, Pyramid proposed to mitigate

the adverse impact on the wetlands by attempting to create

36 acres of replacement wetlands in an off-site gravel pit.

Pet. App. Ila.

In connection with its application for a permit, Pyramid

submitted information concerning “practicable alter-

natives” to the Sweedens Swamp site, including the North

Attleboro site. In rejecting the latter site as an alternative,

Pyramid contended that it “ ‘lacked sufficient traffic

volume and sufficient access from local roads’ ”; that

“ ‘potential department store tenants had expressed strong

doubts about the feasibility of the site’”; and that

“ “previous attempts to develop the site had met with

strong resistance fiom the surrounding community.’ ” Pet.

App. lla-12a (emphasis omitted).

On May 2, 1985, after receiving comments from EPA

that were critical of the proposed construction, the Corps’

regional division recommended to national headquarters

that the permit to construct the mall be denied. General

John F. Wall, the Director of Civil Works at the national

headquarters, disagreed. He found that Pyramid’s pro-

posal to create an off-site artificial wetland sufficiently

mitigated the adverse environmental effects of the project.

He also determined that the North Attleboro site was

unavailable as an alternative because it had been “op-

tioned by another developer.” On June 28, 1985, pursuant

to Wall’s directive, the Corps sent Pyramid a notice of its

intent to grant the permit. Pet. App. 12a-13a.

b. EPA thereafter initiated a review of the Corps’ deci-

sion under Section 404(c). On May 13, 1986, the agency

determined that a permit should not be issued (Pet. App.

64a-108a). The agency first found that Sweedens Swamp

“provides many wetland values such as wildlife habitat,

——————

6

food chain production, natural flood storage, ground-

water discharge, and water quality renovation” (id. at

76a). “Construction of a large shopping center at

Sweedens Swamp,” the agency explained, “would

drastically change the hydrology, soils, and biology of the

area” (ibid.). In particular, the agency found that the pro-

posed project would eliminate or alter a substantial part of

the wildlife habitat in the swamp, including “species of

birds, small mammals, and amphibians, that are typical of

New England forested swamps” (id. at 77a). The agency

therefore concluded that‘ the mall project “would have

adverse impacts on wildlife values protected by section

404(c)” of the Clean Water Act (id. at 83a).

The agency next addressed the question whether the

adverse effects of the mall project were “unacceptable,”

explaining that that question turned, in part, on whether

there were less drastic alternatives available. The agency

found that the North Attleboro site was a “practicable

alternative” to Sweedens Swamp (Pet. App. 86a-10S5a). It

determined that the North Attleboro site was feasible,

noting that New England Development was pursuing a

similar project on that site (id. at 88a). The agency also

concluded that the North Attleboro site was “available.”

In reaching that conclusion, EPA examined the period

during which the company was investigating the trade area

and before it selected Sweedens Swamp (when it “entered

the market” (Pet. App. 95a)), as well as the period between

Pyramid’s purchase of Sweedens Swamp in December

1983 and the submission of its permit application in July

1984. The agency observed that the guidelines under Sec-

tion 404(b) “were intended to avoid unnecessary filling of

wetlands and to require a prospective discharger to take a

hard look before concluding that upland sites are not

available” (id. at 92a (emphasis in the original)). Ac-

cordingly, the agency reasoned, “ijt is both fair and con-

sistent with the Guidelines to review the period of

availability as including the period when the developer is

selecting a site for its project” (id. at 93a). EPA found that

the record clearly showed that “Pyramid and New England

Development were exploring the same trade area at ap-

proximately the same time and that Pyramid decided

against the North Attleboro site solely on the basis of un-

suitability” (id. at 95a). The agency also explained that

“{t}he uncontested fact is that Pyramid never checked the

availability of the North Attleboro site during its in-

vestigation of the market, notwithstanding its knowledge

that Sweedens Swamp suffered from significant en-

vironmental constraints. Pyramid rejected the site not

because it was unavailable but because Pyramid believed it

was not an economically viable site.” /d. at 94a. The agen-

cy concluded that Pyramid had not “met its burden of

showing that the North Attleboro site was unavailable”

(id. at 95a-96a).?

Finally, the agency concluded that “locating a shopping

mall at the North Attleboro site would have less adverse

impact on the aquatic ecosystem” (Pet. App. 98a). Among

other things, the agency noted, “the North Attleboro site

has less than one acre total wetlands, scattered in small

pieces, compared to the 32 acres to be filled at Sweedens

Swamp” (ibid.). The agency also rejected as insufficient

Pyramid’s proposal to mitigate the adverse impact of its

project by creating a wetland complex out of a mostly

> EPA also noted that since New England Development had not ac-

quired all its options on the North Attleboro site until July 1984, the

site may have remained available to Pyramid throughout that period.

In addition, the agency found that because of “[t]he special cir-

cumstances of this case,” any alternative that had been available to

Pyramid’s predecessor should likewise be regarded as an alternative

available to Pyramid. Pet. App. 95a-97a.

upland gravel pit. It found that the proposal “presents

substantial risks and uncertainties” (id. at 10la), and that

“even if successful,” the proposal “would not provide the

same kind of habitat as that which would be lost at

Sweedens Swamp” (id. at 103a-104a).

3. Petitioners thereafter brought an action in the

United States District Court for the Northern District of

New York, challenging EPA’s decision as arbitrary and

capricious under the Administrative Procedure Act, 5

U.S.C. 704, 706. On cross-motions for summary judg-

ment, the district court ruled for respondents (Pet. App.

32a-63a). The court first found (id. at 47a-55a) that in

deciding whether the proposed use of the wetlands would

have an “unacceptable adverse effect,” the agency was en-

titled “to take into account the existence of a ‘practicable

alternative’ ” (id. at 48a). Turning to the merits, the court

upheld EPA’s finding that the North Attleboro site con-

stituted a practicable alternative to Sweedens Swamp. The

court agreed that the North Attleboro site was both feasi-

ble (id. at 55a-57a) and available to Pyramid (id. at

57a-59a), and it rejected petitioners’ contention that a site

may be found to be “available” under 40 C.F.R. 230.10(a)

only if it is available to the developer at the time that the

agency acts on the developer’s permit application. The

court found, instead “that the record supports the EPA’s

finding that the North Attleboro site was available to

Pyramid at the time it ‘entered the market’ in September or

December of 1983” (id. at 60a).4

* The district court also held that “[e]ven assuming that the EPA

reached an arbitrary decision regarding the availability of a prac-

ticable alternative, its Final Determination must be upheld as

reasonable because it was based upon a rational, independent finding

that a significant loss in wildlife would result from the construction of

a mall at Sweden’s [sic] Swamp” (Pet. App. 61a).

9

4. The court of appeals affirmed by a divided vote

(Pet. App. la-29a). The court first held that EPA’s con-

struction of the governing regulations—according to

which the availability of the North Attleboro alternative

should be judged as of the time that Pyramid entered the

market for a construction site—was reasonable in these

specific circumstances. The court explained that although

the language of 40 C.F.R. 230.10(a)(2) is phrased in the

present tense, “ ‘the regulations do not indicate when it is

to be determined whether an alternative “is” available,’

i.e., the ‘present’ of the regulations might be the time the

application is submitted; the time it is reviewed; or any

number of other times” (Pet. App. 16a (emphasis in the

original)). Moreover, the court noted that the purpose of

the regulations “is to create an incentive for developers to

avoid choosing wetlands when they could choose an alter-

native upland site” (ibid.); petitioners’ reading of the

regulations, the court stated, “would thwart this purpose

because it would remove the incentive for a developer to

search for an alternative site at the time such an incentive

is needed, i.e., at the time it is making the decision to select

a particular site” (id. at 16a-17a). “If the practicable alter-

natives analysis were applied to the time of the application

for a permit,” the court explained (id. at 17a), “the

developer would have little incentive to search for alter-

natives, especially if it were confident that alternatives

soon would disappear.”®

Judge Pratt dissented (Pet. App. 25a-29a). In his view,

the market entry analysis improperly “focus[es] on the

decisionmaking techniques and tactics of a particular

developer” (id. at 26a) and “inject[s] exquisite vagueness”

$ The court also held that EPA’s “market entry” approach to the

regulations was not in conflict with prior practice (Pet. App. 17a-19a),

and that it was neither excessively vague nor unfair (id. at 22a-24a)

10

into the determination of whether a particular site is an

“available” alternative (id. at 27a). Judge Pratt concluded

that the availability of a site should instead be based on

“the circumstances which exist at the time [EPA] makes its

decision” (id. at 28a).

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of any other

court of appeals. Moreover, petitioners’ challenge to the

EPA’s decision arises principally from the unusual facts of

this case: that by the time Pyramid submitted its applica-

tion for a permit, a competitor had begun purchasing op-

tions to an otherwise available upland site, thereby making

it arguably unavailable to Pyramid. The agency’s fact-

bound determination, upheld by both the district court

and the court of appeals, warrants no further review.

1. Petitioners first contend (88-902 Pet. 13-18) that the

“market entry” formulation “provid[es] no guidance to the

regulated community of the standard to which it will be

held” (id. at 13), because EPA has “refused to specify the

point in time at which the availability inquiry begins” (id.

at 14). Petitioners assert that governmental planning agen-

cies, in particular, “are always in the market” (id. at 15). In

petitioners’ view, the EPA’s standard is imprecise end

they contend that as a result “{ljocal, state and regional

planning efforts will be undermined” (id. at 17).

The ‘question when, precisely, a developer is “in the

market” for purposes of the “market entry” standard is

simply not presented in this case. As the agency found —in

a finding that petitioners do not dispute—“[t}he un-

contested fact is that Pyramid never checked the availabili-

ty of the North Attleboro site during its investigation of

11

the market, notwithstanding its knowledge that Sweedens

Swamp suffered from significant environmental con-

straints” (Pet. App. 94a). Indeed, the agency noted (ibid.

(citation omitted)), “Pyramid rejected the site not because

it was unavailable but because Pyramid believed it was not

an economically viable site. Pyramid stated that it would

have turned down the site for its project even if it were of-

fered ‘for free.’ ” In short, Pyramid never considered the

North Attleboro site at all, regardless of when Pyramid

was in the market or the site was available. The EPA ac-

cordingly had no occasion in this case to resolve the

precise moment at which a developer may be said to be “in

the market,” for purposes of determining the ayailability

of competing alternatives.

2. Petitioners next contend (88-902 Pet. 18-25) that

EPA’s market entry standard is inconsistent with the pur-

pose of Section 404 of the Clean Water Act, because it

does not require “an objective inquiry into the impacts on

the physical environment that would result from the

choice of one site over another” (id. at 20). In petitioners’

view, EPA’s analysis “disregards the environmental im-

pacts on the land in question” and thereby “fail[s] to pro-

tect the wetland” (ibid.).

As the court of appeals explained, however, EPA’s ap-

plication of the regulations in this case is entirely faithful

to the purposes of the Clean Water Act. The Act is de-

signed, in principal part, to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s

waters” (33 U.S.C. 1251). By focusing on the period dur-

ing which a developer is considering its options, and has

not yet committed its resources to a particular wetland

site, the market entry standard “create[s] an incentive for

developers to avoid choosing wetlands when they could

choose an alternative upland site” (Pet. App. 16a). By con-

12

trast, “[iJf the practicable alternatives analysis were ap-

plied to the time of the application for a permit, the

developer would have little incentive to search for alter-

natives, especially if it were confident that alternatives

would soon disappear” (id. at 17a).

Petitioners assert (88-902 Pet. 20), however, that the

market entry approach “leads inevitably to consideration

of factors far different from those contemplated by Con-

gress.” For example, in this case, petitioners argue, the

agency inappropriately requested records reflecting the

developer’s efforts to pursue upland alternatives. Peti-

tioners apparently believe (see id. at 21, 23-24) that the

EPA may evaluate only the environmental impact of a

project, and may not consider whether there are alter-

natives available to the developer. There is no basis for

that contention. Section 404(c) of the Act, 33 U.S.C.

1344(c), expressly requires the agency to determine

whether the proposed project “will have an unacceptable

adverse effect.” As the district court observed (Pet. App.

48a), Section 404(c) does not preclude the EPA, in deter-

mining whether an “adverse effect” is “unacceptable,”

from considering whether less “adverse” alternatives were

available. Indeed, the regulations promulgated under Sec-

tion 404(c) state that the Administrator should consider

the “relevant portion of the [404(b)] guidelines” in making

his Section 404(c) unacceptability determination; the Sec-

tion 404(b) guidelines expressly require a consideration of

practicable alternatives. See 40 C.F.R. 231.2(e); Pet. App.

6a-7a & n.2, 48a.

3. Petitioners also contend, in passing (88-902 Pet.

25-27), that evaluating alternatives at the time of market

entry is inconsistent with the language of the pertinent

regulations. The court of appeals correctly rejected that

claim. Although the regulations are phrased “in the pres-

13

ent tense” (88-902 Pet. 25), they do not specify the point in

time at which an alternative must be “available” in order to

constitute a “practicable alternative.” The court of appeals

was therefore correct in concluding that “when the agen-

cies drafted the language in question they simply were not

thinking of the specific issues raised by the instant case, in

which an applicant had available alternatives at the time it

was Selecting its site but these alternatives had evaporated

by the time it applied for a permit” (Pet. App. 16a).

Because the text does not resolve the issue, the court cor-

rectly looked to the purpose of the regulations — “to create

an incentive for developers to avoid choosing wetlands

when they could choose an alternative upland site”

(ibid.)—and held that EPA’s interpretation of the regula-

tions comports with that governing purpose.

4. In the court of appeals, petitioners also contended

that the analysis of alternatives at the time of market entry

is inconsistent with the past regulatory practices of both

the Corps and the EPA (Pet. App. 17a-19a). The Second

Circuit rejected that contention, finding that the issue was

one of first impression (id. at 19a). Petitioners do not

renew that claim, apparently recognizing that there is no

conflict among the lower courts over the market entry

analysis. They assert, however, that the issue is sufficiently

important to warrant this Court’s review. But, as the Sec-

ond Circuit observed, EPA had employed its Section

404(c) authority only five times since the enactment of that

provision. During that same time, the Corps has processed

an average of 11,000 permit applications annually. Pet.

App. 9a.

Moreover, petitioners’ present challenge to the market

entry approach contradicts the position they took at an

earlier stage in these proceedings. When petitioners sub-

mitted their supplemental permit application to the Corps

in October 1984, they argued that the appropriate time for

14

assessing practicable alternatives was when the applicant

was exercising its business judgment. Pet. App. 93a. As

petitioners put it at the time, “To avoid this ‘second guess-

ing’ of reasonable business judgments, the regulating

agency’s reference point must be the point in time when

the proponent analyzed its alternatives.” C.A. App. 372.

That is the very time frame that the EPA analyzed, and

that petitioners now repudiate.

5. Finally, petitioners contend (88-929 Pet. 6-12) that

the EPA exceeded its statutory jurisdiction under Section

404(c) when, in making its decision, it considered the en-

vironmental consequences of the proposed shopping mall

for other parts of Massachusetts, in addition to the impact

on Sweedens Swamp. That claim is meritless. Section

404(c) authorizes the Administrator of EPA to prohibit a

proposed discharge when he finds that it “will have an

unacceptable adverse effect on municipal water supplies,

shellfish beds and fishery areas (including spawning and

breeding areas), wildlife, or recreational areas” (33 U.S.C.

1344(c)). By its terms, Section 404(c) does not limit the

regions that the Administrator may take into account in

making his determination, and it certainly does not require

him to consider only the effect on the particular wetland

site. Indeed, because a significant change in the en-

vironmental quality of a particular wetland is likely to af-

fect the quality of surrounding regions (see Pet. App. 77a,

79a), it would not be sensible to construe Section 404(c) as

narrowly as petitioners propose. °®

® Petitioners base their contrary reading of Section 404(c) on the

fact that the provision authorizes the Administrator to prohibit

discharge into a “defined area’ whenever he determines that the re-

quested discharge into “such area” will have an unacceptable adverse

effect (88-929 Pet. 7-8). The quoted language provides simply that the

Administrator must determine whether to permit discharge into a

15

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

PETER R. STEENLAND, JR.

MARGARET N. STRAND

Attorneys

GERALD H. YAMADA

Acting General Counsel

ANNE H. WILLIAMS-DAWE

CATHERINE A. WINER

Altorneys

Environmental Protection Agency

FEBRUARY 1989

specific area; it does not provide that, in making that determination,

he is forbidden to consider the environmental impact on surrounding

areas.

<r US GOVERNMENT PRINTING OFFICE: 1989—241 699/00127