Petition — Lake Erie Alliance for the Protection of the Coastal Corridor, Inc. v. United States Army Corps of Engineers
Supreme Court brief1983
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ALEXANDER L. STEVAS
Case No.: CLERK
In The Supreme Court Of The
United States
OCTOBER TERM, 1982
LAKE ERIE 4ULIANCE
FOR THE PROTE [ION OF THE
COASTAL CORRIDOR, INC., et al.
Petitioners
VS.
UNITED STATES ARMY CORPS
OF ENGINEERS, et al.
Respondents
APPEAL FROM THE UNITED STATES Court OF APPEALS
For THE THIRD CIRCUIT
PETITION FOR WRIT OF CERTIORARI
BRENT L. ENGLISH
611 Park Building
140 Euclid Avenue
Cleveland, Ohio 44114
(216) 781-9917
JEROME F Weiss
Weiss, Neiditz, Petrey & Mandel
National City E. 6th Bidg.
Cleveland, Ohio 44114
(216) 589-9993
Attorneys for Petitioners Lake Erie
Alliance for the Protection of the
Coastal Corridor, Inc., Concerned
Citizens of Conneaut, Downwind
Neighbors, Inc., Earl Weaver, Tom
Meara, Gerald Specht and Charles
Gaukel
(Other Counsel on Inside Cover)
Rex E. Lee, Esq.
Solicitor General of the
United States of America
10th & Constitution Avenues, N.W.
Washington D.C. 20530
(202) 633-2000
Attorney for Respondents
United States Army Corps of
Engineers, Clifford L. Alexander, Jr.,
Lt. Gen. John Morris, Daniel D. Ludwig,
George P. Johnson and Paul G. Leutner
THOMAS R. WRIGHT
Eric A. SCHAFFER
Bair S. MCMILLIN
REED, SmiTH, SHAw & McCay
Union Trust Building
P.O. Box 2009
Pittsburgh, Pennsylvania 15230
(412) 288-3131
Attorneys for Respondent
United States Steel Corporation
STAUGHTON LyND
JAMES CALLEN
NorTHEAST On10 LEGAL SERVICES
804 Metropolitan Tower
Youngstown, Ohio 44503
(216) 744-3196
Attorneys for Respondent
Tri-State Conference on the
Impact of Steel in Ohio,
West Virginia and Pennsylvania
James DENNY
1201 Realty Building
Youngstown, Ohio 44503
(216) 747-6718
Attorney for Respondent Local 1397,
United Steel Workers of America
Micnuaet J HEALY
1906 Law & Finance Building
Pittsburgh, Pennsylvania
(412) 391-7707
for Re Local 1397,
United Steel Worker: of America
(Homestead, Pa.)
QUESTIONS PRESENTED FOR REVIEW
Whether a party challenging the
sufficiency of an environmental
impact statement may present evidence
outside of the administrative record
to show thac the agency did not have
adequate information to make a
reasoned decision?
Whether the National Environmental
Policy Act, 42 U.S.C. §§ 4321 et
seq., circumscribes an agency's right
to make decisions which are contrary
to the goals and policies set forth
in the Act?
Whether summary judgment is proper in.
a case challenging the adequacy of an |
environmental impact statement where
the agency moves for judgment based
solely on the administrative record
and where the party challenging the
statement demonstrates the proba-
bility of significant deficiencies in
the EIS?
Whether by failing to comply with the
procedural safeguards in Section 401
of the Federal Water Pollution
Control Amendments of 1972, 33 U.S.C.
§ 1341, the permit issued by the
Corps was rendered invalid?
Whether by failing to comply with the
requirements of the Fish and Wildlife
Coordination Act, 16 U.S.C. §§ 661 et
seq., the permit issued by the Corps
was rendered invalid?
ii
PARTIES TO PROCEEDING BELOW
In addition to the within Petitioners,
the following were Plaintiffs - Appel-
lants before the U.S. Court of Appeals
for the Third Circuit:
° Tri-State Conference on the Impact of
Steel In Ohio, West Virginia &
Pennsylvania
° Local 1397, United Steel Workers of
America, Homestead, Pennsylvania
The following parties were Defendants-
Appellees before the U.S. Court of
Appeals for the Third Circuit:
° United States Army Corps of Engineers
° Clifford L. Alexander, Jr.
° Lt. Gen. John Morris
iii
Daniel D. Ludwig
George P. Johnson
Paul G. Leutner
United States Steel Corporation
iv
TABLE OF CONTENTS
AND
AUTHORITIES
Questions Presented for Review
Parties to Proceeding Below
Table of Contents & Authorities
Reference to Official or Unofficial
Reports
Jurisdiction
Statutes, Treaties & Regulations
Statement of the Case
Reasons for Certiorari
I. The Petition For A Writ of
Certiorari Should Be Granted to
Resolve a Conflict Among the
Circuits on the Role of the
Judiciary in Evaluating Compli-
ance with the National Environ-
mental Policy Act's Substantive
and
Procedural Requirements and
to Clear Up Confusion as to when
pioagecse! 4 Judgment Is Appropriate
in suc
cases —
1. Petitioners Were Unlaw-
fully Denied an Opportunity
to Chaiienns the Adequacy of
the EIS Prepared by the
Corps. male
2. Summary Judgment Was
Improper Because there were
Genuine Issues of Material
Fact in Dispute Regarding
iii
10
10
10
the Adequacy of the EIS and
Regarding Whether the Corps
Acted in Good Faith in
Preparing it. aa
3. The Petition For A Writ
Of Certiorari Should Be
Granted so that the Question
of Whether and to What
Extent NEPA Imposes Sub-
stantive Limits on the
Choices Available to a
Decision-Maker Can Be
Considered Definitively. wee
II. Petitioners' Request for a
Writ of Certiorari Should Be
Granted so that the Corps'
Compliance with Certain Specific
Requirements of NEPA, the
Federal Water Pollution Control
Amendments Of 1972, and of the
Fish and Wildlife Coordination Act
Can Be Reviewed. ue
1. The Corps Violated NEPA
By Failing To Consider
Costs, Partial Alternatives,
the Great Lakes Water
Quality Agreement of 1978,
and a Number of Environ-
mental Impacts. __. 38
2. The Permit Issued by the
Corps Is Invalid Because It
Did Not Comply With the
Procedural Safeguards in
Section 401 of The Federal
Water Pollution Control Act,
33 U.S.C. § 1341. __ 46
vi
3. The Permit Issued by the Corps
Is Invalid Because the Corps
Failed to Comply With the Fish
and Wildlife Coordination Act,
16 U.S.C. §§ 661 et seq. _ 53
Conclusion __57
Certificate of Service _. $9!
Appendix _ 61ff.
CASES
Cape Henry Bird Club. v. Laird,
359 F. ree 404 (W.D. Va.),
F,
aff'd, 48 2d 453 (4th Cir.
(1973) —
Calvert Cliffs Coordinating Commit-
tee v. U.S. Atomic Ener
ommission ; (D.C.
Cir. 1971) __17,23,28,
29,39
County of Suffolk v. Secretary of
Interior, 562 F.2d 1368(2d Cir. |
1977) oun bh A 4,hee
16, 23
Columbia Basin Land Protection
Association v. Schlesinger, 643
F. 20 585 (Sth Cir. T5ST) |
Environmental Defense Fund, Inc. v.
Froehlke, 473 F. 2d 346 (Sth Cir.
_. $8)
Feliciano v. Laird,
426 F. 2d 424 (2d Cir. 1970) _. 56 |
First National Bank of Arizona v.
ties Service Co., a
(1916) ps
vii
Fountain v. Filson
oe 1956) cadena
G.C. Merriam Co. v. Saafield,
.S. _ 49
Green County Planning Board v.
Federal Power Commission, 455
F. 2d 412 (2d Cir. 1972), cert.
denied, 409 U.S. 899 (1973) an ee
Hayman Cash Register Co. v. Sarodin,
669 F. 2d te? (3d Cir. 1982) 41
Karlen v. Harris,
590 F. 2d 39 (2d Cir. 1979),
rev'd sub nom, Stryker's Ba
Neighborhood Council v. Karlen,
444 U.S. 233 (1980) 34
Kleppe v. Sierra Club,
ivy, U.S. 233 (1980) wae?
Natural Resources Defense Council v.
Administrator, ERDA, 451 F.
Supp. 1245 (D.D.C. 1978) —m 40
Natural Resources Defense Council v.
Calloway, 524 F. 2d 79 (2d Cir.
—
Natural Resources Defense Council v.
orton, ; sGe Ze
——
Poller v. Columbia Broadcasting
System, 368 U.S. 464 (1961) a
Sierra Club v. Morton,
th Cir. 1975) a
Stryker's Bay Neighborhood Council v.
Karlen, Lif U.S. 2335 (1980) aan bDeeesne
33,36!
viii
Todd & Co., Inc. v. §.E.C.,
63/ F. 2d 154 (3d Cir. 1980)
Udall v. Federal Power Commission,
378 U.S. 428 (1967)
Vermont Yankee Nuclear Power Corp.
v. Natural Resources Defense
ouncil,
Statutes
National Environmental Policy Act,
42 U.S.C. §§4321 et seq
42 U.S.C. §4331
42 U.S.C. §4332
Federal Water Pollution Control
Amendments of 1972,
33 U.S.C. §§1251 et seq
33 U.S.C. §1341
33 U.S.C. §1344
Fish and Wildlife Coordination Act
of 1934, a
16 U.S.C. §§ et se
16 U.S.C. §662 =
Rivers and Harbors Act of 1899,
33 U.S.C. §410
Title 28, §1254(1)
Title 28, §2101
Great Lakes Water Quality Agreement
of 1978
Rules
Sup. Ct. R. 17(c)
ix
ms woe
= 1,2,/4
ne
onmm, Fee
24,28
ome b4,29%
— 46,50-53
Pe 5
am 2500"
42,43
am &&
Sup. Ct. R. 21 (f£)
Fed. R. Civ. Proc. 56
Regulations
33 C.F.R. §209.410(i) (7) (iii) (1978)
33 C.F.R. §320.4(b) (1980)
40 C.F.R. §121.2 (1981)
40 C.F.R. §1500.2(b) (1981)
40 C.F.R..§1500.8(c) (4) (1978)
Miscellaneous
10 Wright and Miller, Federal
Practice and Procedure, §§2711
et seq.
Liebsman, The Council on Environ-
mental Quality’s Regulations to
Implement the National Environ-
mental Policy Act - Will They
Further NEPA’s Substantive
Mandate? I0 Env. L. Rptr. 50039
(1980)
Note, The Least Adverse Alternative
Approach to Substantive Review
Onter NEPA 88 Harv. L. Rev. 735
=~ 359,408
am» SA
REFERENCES
TO OR
UNOFFICIAL REPORTS BELOW
1. An interlocutory order regarding
standing may be found at 486 F. Supp. 707
(W.D. Pa. 1980)(J. Knox).
2. The District Court's Memorandum
Opinion dated November 23, 1981 has not
been published.
3. The U.S. Court of Appeals for the
Third Circuit did not write an opinion.
JURISDICTION
The U.S. Court of Appeals for the
Third Circuit initially entered judgment
for the Respondents on January 25, 1983.
The judgment was suspended on January 31,
1983 but was reinstated on February 16,
1983. A timely request for reconsidera-
tion was filed but was denied on March
11, 1983. There was no request filed for
an extension of time to petition for
certiorari. The statutory provisions
conferring jurisdiction on this Court to
entertain the within Petition for Certi-
orari are 28 U.S.C. §2101 and 28 U.S.C.
§1254(1).
STATUTES, TREATIES & REGULATIONS
Because of the length of such pro-
visions, they are only cited here but are
set out in full in the Appendix pursuant
to Sup. Ct. R. 21(f):
1. National Environment Policy Act,
42 U.S.C. §§4321 et seq.
2. Federal Water Pollution Control
Amendments of 1972,
33 U.S.C. §§1251 et seq.
3. Fish & Wildlife Coordination Act
of 1934,
16 U.S.C. §§661 et seq.
4. Great Lakes Water Quality Agree-
ment of 1978
5. Fed R. Civ. Proc. 56
6. 33 C.F.R. §320.4(b) (1980)
7. 40 C.F.R. §121.2(1981)
STATEMENT OF THE CASE
On June 29, 1979, the U.S. Army Corps
of Engineers issued a permit to United
States Steel which allowed construction
of one of the world's largest steel mills
to commence. + Shortly after the permit
lpiant construction has not actually
begun due to economic conditions in the
was issued, Petitioners - the Lake Erie
Alliance, Concerned Citizens of Conneaut,
and Downwind Neighbors, all environmental
groups, along with certain individuals
and labor organizations, filed suit
challenging the permit. Inter alia, the
Petitioners and other plaintiffs con-
tended that the Corps violated the
substantive and procedural duties imposed
by the National Environmental Policy Act,
42 U.S.C. §§4321 et seq. They also
contended that the Corps issued the
permit in violation of certain procedural
safeguards in the Federal Water Pollution
Control Amendments of 1972, 33 U.S.C.
§§1251, and that insufficient weight was
given to the consultation requirements in |
the Fish and Wildlife Coordination Act,
16 U.S.C. §§661 et seg.
[footnote 1 continued] domestic steel
31 ise8. The permit expires on December
After discovery proceedings had
commenced, several of the labor organiza-
tion plaintiffs filed a motion for
partial summary judgment on the basis
that the Corps failed to consider partial
alternatives to the proposed plant. This
motion was ultimately denied.
In March, 1981, Respondents filed a
consolidated motion for summary judgment.
Petitioners and the other plaintiffs
responded with a brief in opposition
pointing out why a trial to decide the
disputed factual issues was necessary.
On six selected issues, Petitioners
sought summary judgment inasmuch as there
were no factual disputes and the applic-
able law was clear.
District Judge William Knox heard
oral argument on July 1, 1981 on the
motions for summary judgment. Unfor-
tunately, he unexpectedly passed away
before rendering a decision on those
motions. The case was then reassigned to
Senior District Judge Gerald Weber who
granted Respondents' motion barely two
months later. Petitioners timely
appealed to the U.S. Court of Appeals for
the Third Circuit.
The case was fully briefed in the
Court of Appeals and oral argument was
heard on January 24, 1983. A Judgment
Order affirming the District Court's
judgment was entered on January 25, 1983
but was thereafter suspended sua sponte.
The Judgment Order affirming the District
Court was reinstated on February 16,
1983. A timely petition for a rehearing
en banc was filed but was denied on March
11, 1983. Im accordance with 28 U.S.C.
§210l(c), Petitioners hereby seek review
in this Court and urge that the within
Petition for a Writ of Certiorari be
granted,
The permit which is the subject of
this case was first applied for in 1977.
Because the Corps had statutory jurisdic-
tion over activities in Lake Erie, 33
U.S.C. § 410, and because U.S. Steel
wanted to fill in an important stretch of
one of Ohio's few remaining cold water
streams, an activity which also needed a
Corps permit, 33 U.S.C. § 1344, U.S.
Steel applied to the Corps before seeking
the myriad of other permits necessary.
The Corps determined that the project was
a “major federal action" under the
National Environmental Policy Act (NEPA),
42 U.S.C. § 4332, and thus became obliged
to prepare an environmental impact
statement. This statement was to serve
as a primary source of information about
environmental impacts and alternatives to
the proposed plant.
The manner in which the Corps pre-
pared the EIS and the quality of the
finished product is the gravamen of
Petitioners' case. Instead of objec-
tively studying the impacts, the Corps
relied excessively and unlawfully on U.S.
Steel. Instead of confronting the tough
questions and demanding data, the Corps
capitulated. The Corps deferred considera-
tion of impacts to others at later times.
It failed outright to study or evaluate
certain critical effects. And finally,
it made no effort to apply NEPA's substan-
tive goals and policies to the decision
it ultimately made.
Throughout this litigation, Petition-
ers have sought merely the right to
adduce evidence demonstrating that the
EIS is inadequate and was prepared in bad
faith. Despite the standards in Fed. R.
Civ. Proc. 56 and the presence of genuine
issues of material fact, Petitioners have
been rebuked. The District Court con-
cluded that NEPA merely required "consid-
eration" of environmental impacts and, if
such consideration was evident, Petition-
ers were not free to challenge its
adequacy, validity, or methodology. By
affirming per curiam, the Third Circuit
apparently agreed with this view. Unless
reversed, the decisions below will have
gone very far toward reducing NEPA to an
almost meaningless role.
REASONS FOR CERTIORARI
I, THE PETITION FOR A WRIT OF CERTI-
ORARI SHOULD BE GRANTED TO RESOLVE A
CONFLICT AMONG THE CIRCUITS ON THE ROLE
OF THE JUDICIARY IN EVALUATING COMPLIANCE
WITH NEPA'S SUBSTANTIVE AND PROCEDURAL
REQUIREMENTS AND TO CLEAR UP CONFUSION AS
TO WHEN SUMMARY JUDGMENT IS APPROPRIATE
IN SUCH CASES.
1. Petitioners Were Unlawfully Denied
An Opportunity to Challenge the Adequacy
of the EIS Prepared by the Corps.
The District Court's decision to
grant summary judgment for the Respon-
dents --- and the Third Circuit's per
curiam decision affirming it -- effec-
tively denied Petitioners an opportunity
to demonstrate that the EIS inadequately
10
addressed environmental impacts and
alternatives and was prepared in bad
faith. The lower courts based their
decision on the view that NEPA merely
requires some degree of "consideration"
of environmental impacts and alterna-
tives. The courts reasoned that as long
as some "consideration" is apparent,
those who seek to challenge either the
basis for or the actual decision itself
are without any rights at all.
It is well settled that an EIS should
provide the decision-maker with
sufficient information about the
environmental risks and alternatives of a
project so that a reasoned decision
consistent with NEPA's policies can be
made. County of Suffolk v. Secretary of
Interior, 562 F.2d 1368, 1375 (2d Cir. |
1977); Sierra Club v. Morton, 510 F. 2d
11
813, 819 (5th Cir. 1975); Kleppe v.
Sierra Club, 427 U.S. 390 (1976). Prior
to the decision in the case at har, no
federal court had held that an agency
merely needed to "consider" environmental
impacts’ and alternatives and that proof
of some degree of consideration - no
matter how cursory or inept -- entitled
the agency to, a fortiori, summary
judgment.
This Court's decisions in Vermont
Yankee Nuclear Power Corp. v. N.R.D.C.,
435 U.S. 519 (1978) and in Stryker's Bay
Neighborhood Council v. Karlen, 444 U.S.
223 (1980) (per curiam) certainly do not
so hold. In Vermont Yankee, this Court
noted that the duties imposed by Section
102(2)(c) of NEPA, 42 U.S.C. § 4332(2)(c)
were “essentially procedural," Id. at
558, but it nowhere said that courts
12
should merely look to see if an issue was
"considered" and, if so, conclude as a
matter of law that NEPA's duties were
met. Similarly, in Stryker's Bay Neighbor-
hood Council v. Karlen, this Court, while
perhaps in somewhat overbroad language,
held only that a court was not free to
substitute its judgment for that of the
agency. As Justice Marshall noted in
dissent, if the courts are reduced to the
“essentially mindless task of determining
whether an agency ‘considered’ environ-
mental factors in reaching its decision,"
the salutary purposes of NEPA will have
been completely eviscerated. Id. at 231.
The role of the judiciary in evaluat-
ing an agency's compliance with NEPA is a
recurring theme throughout the many
decisions interpreting and applying this
important statute. The case at bar
i3
presents an ideal vehicle to clarify
definitively what the role of the
judiciary is and how it should be carried
out.
In:addition, the decision in the case
at bar which precluded Petitioners from
challenging the adequacy of the EIS and
the good faith of the Corps is in direct
conflict with a decision in at least one
other circuit. Sup. Ct. R. 17(c)
recognizes that such a conflict is one of
the factors relevant to a decision on
whether to grant certiorari. In County of
Suffolk v. Secretary of Interior, 562
F. 2d 1368 (2d Cir 1977), cert. denied,
434 U.S. 1064 (1978), the Court con-
sidered whether a party challenging the
adequacy of an environmental impact
Statement was limited to the administra-
tive record produced by the agency or
whether additional testimony designed to
14
shed light on the adequacy of that record
was permissible. The Court correctly
concluded that
{a]lthough the focus on judicial
inquiry in the ordinary suit chal-
lenging nonadjudicatory, nonrulemak-
ing agency action is whether, given
the information available to the
decision-maker at the time, his
decision was arbitrary or capricious,
and for this purpose ‘the focal point
for judicial review should be the
administrative record already in
existence, not some new record made
initially in the reviewing court."
Camp v. Pitts, 411 U.S. 138 [alterna-
tive citations and footnote 8 omit-
ted]. In NEPA cases, by contrast, a
primary function of the court is to
insure that the information available
to the decision-maker includes an
adequate discussion of environmental
effects and alternatives [citations
omitted] which can sometimes be
determined only by looking outside of
the administrative record to see what
the agency may have ignored [emphasis
in original]
562 F. 2d 1368, 1384.
The Court in County of Suffolk went on to
explain that
15
[a] suit under NEPA challenges the
adequacy of the administrative record
itself - the EIS. Glaring sins of
omission may be evident on the face
of the statement. See, egs. Chelsea
Neighborhood Associations v. Unite
States Postal Service, 516 F.2d 378
(2d Cir. 1975); Silva v. Lynn, 482 F.
2d 1282, 1283 (lst Cir. 15935" Other
defects may become apparent when the
statement is compared with different
parts of the administrative record.
[footnote 9 omitted]. See, e.g.,
I-291 Why? Association v. Burns, 372
F. Supp. 223 (D. Conn. 1974), Aff'd
er curiam, 517 F.2d 1077 (2d Cir.
IST55- Generally, however, allega-
tions that an EIS has neglected to
mention a serious environmental
consequence, failed adequately to
discuss some reasonable alternative,
or otherwise swept ‘stubborn problenis
or serious criticism...under the
rug, Silva v. Lynn, 482 F.2d at
1255, raise issues sufficiently
important to permit the introduction
of new evidence in the district
court, including expert testimony
with respect to technical matters...
in challenges to the sufficiency of —
an environmental impact statement...
{Emphasis supplied}.
» at 1385.
In contrast to the Second Circuit's
treatment of allegations challenging the
adequacy of an EIS, the District Court
16
and the Third Circuit, by its per curiam
affirmation of the lower court's decision,
totally precluded Petitioners from
demonstrating that the EIS for the
Lakefront Plant did not adequately
address the serious environmental conse-
quences of building the plant and the
reasonable alternatives available which
could avoid or at least minimize those
consequences. The District Court,
despite being presented with evidence
that the EIS was woefully inadequate in a
number of critical areas, merely counted
up the pages of the EIS devoted to a
given topic and summarily declared the
Corps' consideration sufficient. It thus
granted Respondents’ motion for summary
judgment since it believed as a matter of
law that NEPA required only "considera-
tion" of environmental impacts and
alternatives and that no evidence showing
17
how poor this "consideration" was would
disturb this conclusion.
If NEPA requires only that an agency
give some modicum of "consideration" to
envirormental impacts, and the quality
and adequacy of that "consideration" is
not subject to judicial review other than
that which was undertaken in the case at
bar, then this salutary statute designed
by Congress to make “environmental
protection part of the mandate of every
federal agency" Calvert Cliffs Coordinat-
ing Committee v. U.S. Atomic Energy
Commission, 449 F. 2d 109, 112 (D.D.C.
1971) has been judicially eviscerated.
If those who are aggrieved and adversely
affected by a decision based on an EIS
which does not meaningfully, accurately,
or in good faith consider environmental
impacts and alternatives have no right to |
18
demonstrate that the EIS is inadequate,
then the statutory goals and policies of
NEPA are of no importance. If this
decision stands, NEPA's role in environ-
mental protection will be destroyed.
2. Summary Judyment Was Improper
Because There Were Genuine Issues of
Material Fact In Dispute Regarding the
Adequacy of the EIS and Regarding Whether
the Corps Acted In Good Faith In Prepar-
ing It.
A second and even more elementary
reason for granting the within Petition
for Certiorari is that the District Court
and the U.S. Court of Appeals for the
Third Circuit ignored Rule 56 of the
Federal Rules of Civil Procedure and a
well-established body of case law holding
that summary judgment is never appropri-
19
ate where there are genuine issues of
material fact ii. dispute and where the
movant fails to demonstrate entitlement
to judgment as a matter of law. Fountain
v. Filson, 336 U.S. 681 (1956); Poller v.
Columbia Broadcasting System, 368 U.S.
464 (1961); First National Bank of
Arizona v. Cities Service Co., 391 U.S.
253 (1969); See, 10 Wright & Miller, |
Federal Practice & Procedure §§ 2711 et
seq. Unless, as discussed above, NEPA
requires no more than "consideration" of
environmental impacts and alternatives,
which consideration is unreviewable, the
lower courts committed reversible error
by granting summary judgment in the face
of numerous serious questions of fact
regarding the adequacy of the EIS.
In particular, Petitioners showed
that the adequacy of the Corps'
20
consideration of air pollution impacts,
water pollution effects, solid and
hazardous waste generation, and socio-
economic impacts, among others, was very
questionable. Petitioners showed why the
data relied on by the Corps were insuffic-
ient and how the Corps had relied blindly
on U.S. Steel's data and analysis. They
also showed how stubborn problems such as
how air and water quality standards could
be met when the Corps did not have
sufficient design information, were swept
under the rug. And they showed how
incorrect assumptions about population
growth would have major adverse consequen-
ces to the entire region. Respondents
denied the allegations and claimed that
the "consideration" given was adequate.
Therefore, on each of these as well as on
other points, Petitioners sought merely
an opportunity to have the District Court
21
resolve the factual disputes and, on the
basis of the record as supplemented by
expert testimony, make an informed
decision.
Sup. *Ct. R. 17(c) provides that one
decisional factor in considering whether
to grant a Petition for Certiorari is
whether the decision below conflicts with
applicable decisions of this Court.
Petitioners submit that the District
Court violated the clear dictates of Fed.
R. Civ. Proc. 56 by granting summary
judgment in the face of obvious factual
conflicts as did the Third Circuit Court
of Appeals by affirming the District
Court's erroneous judgment. Accordingly,
Petitioners respectfully request that
their Petition be granted to correct this
serious error.
22
In addition to the existence and
demonstration of factual disputes regard-
ing the adequacy of the environmental
assessment, Petitioners also demonstrated
that there was a genuine issue of fact
regarding whether the Corps acted objec-
tively and in good faith in compiling the
EIS. Good faith is a well-recognized and
certainly necessary requirement in
compiling an EIS. County of Suffolk v.
Secretary of Interior, 562 F. 2d 1368,1375
(2d Cir. 1977), cert. denied, 434 U.S. |
1064 (1978; Calvert Cliffs Coordinating |
Committee v. United States Atomic Energy |
Commission, 449 F. 2d 1109 (D.C. Cir.
1971). Petitioners demonstrated to the
lower courts two factual bases for the
assertion that the Corps acted in bad
faith. First, they showed that, although
U.S. Steel and the Corps denied the
existence of plans to expand the capacity
23
of proposed plant from 7.5 million metric
tons of liquid steel per year, such plans
actually existed and that the eventual
size of the plant would be 15 million
liquid tons. All of the environmental
impact projections were premised on the
lower figure which means that these
impacts are severly understated.
The second factual basis showing
evidence of bad faith is misrepresenta-
tion of authorship and abrogation of
responsibility for the EIS. NEPA
expressly required the Corps to remain
responsible for the scope, objectivity
and content of the statement. 42 U.S.C.
§ 4332. See, Green County Planning Board
v. Federal Power Commission, 455 F. 2d
412 (2d Cir. 1972) cert. denied, 409 U.S.
849 (1973). However, Petitioners un-
covered and presented evidence showing
24
that a vast majority of the EIS was
actually written by U.S. Steel - to wit:
71.7% of the paragraphs in the EIS were
the same or substantially the same as
those in U.S. Steel's Environmental
Impact Assessment (EIA), a document which
U.S. Steel produced as "input" for the
EIS. Moreover, 88.9% of the tables and
87.9% of the figures in the final EIS
were the same as those in the EIA.
Nowhere in the EIS were these facts
revealed. What's more, Petitioners
uncovered and presented to the courts
below the fact that as the EIA was
finished it was sent to the Corps on
Magnetic tape so that the EIA could be
easily edited and reproduced in a differ-
ent typeface as the work of the Corps!
Despite this evidence and the existence
of a genuine factual dispute over whether
the Corps acted in bad faith by allowing
25
U.S. Steel to write most of the EIS, the
lower courts upheld summary judgment.
3. The Petition for a Writ of Certiorari
Should Be Granted So That The Question of
Whether and to What Extent NEPA Imposes
Substantive Limits On the Choices Avail-
able to a Decision-Maker Can be Con-
sidered Definitively.
One of the most perplexing and diffi-
cult issues involving NEPA is whether it
has a substantive component which in some
way circumscribes the decision-making
prerogatives of those subject to it.
Petitioners argued below that NEPA
imposes substantive limits. Respondents |
disputed this claim mostly on the strength
of obiter dictum from Vermont Yankee
Nuclear Power Corp. v. N.R.D.C., 435 U.S.
519 (1978) and Stryker's Bay Neighborhood
26
Council v. Karlen, 444 U.S. 223 (1980)
(per curiam). Petitioners contend that
the substantive goals and policies of
2
NEPA” are part of the mandate of every
2 among other things, Congress therein
recognized the profound impact of man's
activity on the interrelations of all
components of the natural environ-
ment, particularly the profound
influences of "... industrial expansion
[and] resource exploitation" and declared
it to be "the continuing policy of the
Federal Government... to use all practical
means and measures... to create and
maintain conditions under which man and
nature can exist in productive harmony."
42 U.S.C. § 4331(a). In Section 101(b),
42 U.S.C. § 4331(b), Congress more
specifically stated the objectives of the
Act including
(1)fulfill[ing] the responsibilities
of each generation as trustee of the
new environment for succeeding
generations [and] the widest range of
beneficial uses of the environment
without degradation, risk to health
or safety, or other undesirable and
unintended consequences.
These policies and goals are given the
force of law in section 102(1) as follows:
The Congress authorizes and directs
that, to the fullest extent possible:
(1) The policies, regulations and
27
federal agency and circumscribe its
ability to make decisions contrary to
those goals and objectives. Calvert
Cliffs Coordinating Committee v. U.S.
Atomic Energy Commission, 449 F. 2d 1109,
1i12 (D.C. Cir. 1971). The substantive
goals and policies of NEPA gain the force
of law and thereby affect an agency's
power to make decisions contra to those
goals by virtue of Section 102 of the
Act:
...to the fullest extent possible
...({t]he policies, regulations and
public laws of the United States
shall be interpreted in accordance
with the policies set forth in this
Act.
42 U.S.C. § 4332(1) (emphasis supplied).
Thus, the plain meaning of Section 102 is
[footnote 2 continued] public laws of the
United States shall be interpreted in
accordance with the policies set forth in
this Act...
42 U.S.C. § 4332(a) (emphasis supplied).
28
that agencies are limited in their
decision-making.
While NEPA is assuredly more than
merely an environmental disclosure
statute, there is significant confusion
over the extent to which the policies and
goals of NEPA limit decision-makers. A
number of courts have construed the Act
as requiring a cost-benefit analysis.
For example, in Calvert Cliffs Coordinat-
ing Committee v. United States Atomic
Energy Commission, 449 F. 2d 1109, 1113
(1971), (D.C. Cir. 1971), the Court said
that
{in] order to include all possible
environmental factors in the deci-
sional equation, agencies must
identify and develop methods and
procedures *** which will insure that
presently unquantified environmental
amenities and values may be given
appropriate consideration in decision-
making along with economic and
29
technical considerations. To ‘'con-
sider' the former ‘along with' the
latter must involve a balancing
process. In some instances
environmental costs may outweigh
economic and technical benefits and
in other instances they may not. But
NEPA mandates a rather finely tuned —
and ‘systematic’ balancing analysis
in each instance. (Emphasis
supplied. )
However, such analyses necessarily
involve valuing environmental costs and
benefits and have often resulted in
intractable disputes between experts on
the value of environmental amenities.
An alternative is emerging which
avoids the practical evidentiary problems
of valuing environmental amenities and
which is more in harmony with the statu-
tory language. This alternative is to
view NEPA's substantive command to be
that an agency, based on the results of
the EIS, select the least environmentally
adverse alternative unless other essential
30
considerations of national policy dictate
that a more environmentally adverse
alternative be selected. See Note, The
Least Adverse Alternative Approach to
Substantive Review Under NEPA, 88 Harv.
L. Rev. 735 (1974); Liebsman, The Council
on Environmental Quality's Regulations To
Implement the National Environmental
Policy Act - Will They Further NEPA's
Substantive Mandate? 10 Env. L. Rev.
50039 (1980). This standard insures that
an agency has taken seriously its obliga-
tion under NEPA to use all practical
means consistent with other essential
considerations of national policy to
achieve the environmental goals in
Section 101 while nevertheless giving
agencies necessary discretion to select
among alternatives provided their selec-
tion is justified.
31
The least-adverse alternative stand-
ard is supported fully by NEPA's legisla-
tive history. As one commentator has
noted,
[o]n close examination, the mandate
to ‘use all practicable means,
consistent with other essential
considerations of national policy'
requires more than just a good faith
balancing of environmental costs and
benefits. In fact, Senator Jackson
stated during debate on NEPA that
‘any adverse effects which cannot be
avoided...[must be] justified by some
other stated consideration of national
policy.' This requirement of 'justifi-
cation' implies that federal agencies
must either select the least-adverse
alternative or that a careful evalua-
tion of national policy considerations
be made to support another choice...
[t]his formulation would appear to
require the imposition of the strong-
est possible mitigation to minimize
impact, insuring that the original
intent of Congress under § 101 will
be met.
Liebsman, supra, at 50043 (footnotes and
citations omitted).
32
This Court has yet to address squarely
the extent to which the policies and
objectives of NEPA circumscribe an
agency's choices in decision-making. In
Vermont Yankee Nuclear Power Corp. v.
Natural Resources Defense Council, 435
U.S. 519 (1978), conflicting messages
were given. While characterizing in
dicta NEPA's duties as "essentially
procedural," Id. at 558, this Court
nevertheless recognized that
"{a]dministrative decisions should be set
aside in [the NEPA context] as in every
other, only for procedural or substantive
reasons as mandated by statute." Ibid.
(Emphasis supplied). Justice Marshall
has wisely cautioned that the remark
about NEPA's duties being “essentially
procedural" must be considered in context
and does not permit the conclusion that
there is no substantive component of
33
NEPA. Stryker's Bay Neighborhood Council
v. Karlen, 444 U.S. 223, 230 (1980).
Similarly, this Court's decision in
Stryker's Bay Neighborhood Council v.
Karlen; 444 U.S. 223 (1980) (per curiam)
does not gainsay the conclusion that NEPA |
imposes limits on the ability of an
agency to take actions contrary to the
letter and spirit of Section 101 of the
Act. This Court said that it was error
for a court to require a federal agency
to give dispositive weight to social
environmental factors such as overcrowd-
ing to the exclusion of other reasonable,
but countervailing factors, in deciding
whether to proceed with construction of a
low-income housing project in New York
City. See, also, Karlen v. Harris, 590
F, 2d 39, 44-45 (2d Cir. 1978). Although
the Court briefly discussed whether
34
environmental considerations could be
elevated arbitrarily above all others in
making a decision subject to NEPA and
concluded that they could not, 444 U.S.
at 227-28, the focus of the opinion and
the holding of the case is that a court
may not substitute its judgment for that
of the agency where there are valid
choices to be made and the agency has
justified its choice.
Justice Marshall dissented from what
he said were overbroad statements about
NEPA. He correctly pointed out that
substantive review is essential to insure
that environmental consequences, once
identified through NEPA's procedural
requirements, are not ignored. He
characterized the question of whether an
agency could elevate environmental
matters above all others as
35
...essentially a restatement of the
question whether HUD in considering
the environmental consequences gave
them a hard look which is poe, the
proper question for the reviewing
court to ask... I do not subscribe
to the Court's apparent suggestion
that Vermont Yankee limits the
reviewing court to the essentially
mindless task of determining whether
an agency considered environmental
factors even if that agency may have
effectively decided to ignore those
factors in reaching its decision.
Indeed, I cannot believe that the
Court would adhere to that position
in a different factual setting.
Stryker's Bay Neighborhood Council v.
Karlen, 444 U.S. 223, 231 (1980).
The case at bar is indeed a dramatic-
ally different setting. The lower courts
concluded that NEPA has no substantive
component at all and that summary judg-
ment was therefore proper because some
"consideration" had been given. NEPA is
meaningless unless the procedural com-
ponent which requires information gather-
ing is not co-joined with substantive
36
limits. If NEPA has a substantive
component, then this Court should declare
and define it for the large number of
Federal courts which continue to struggle
with this question.
II
PETITIONERS' REQUEST FOR A WRIT OF
CERTIORARI SHOULD BE GRANTED SO THAT THE
CORPS' COMPLIANCE WITH CERTAIN SPECIFIC
REQUIREMENTS OF NEPA, THE FEDERAL WATER
POLLUTION CONTROL AMENDMENTS OF 1972 AND
- THE FISH AND WILDLIFE COORDINATION ACT
CAN BE REVIEWED.
Allowance of the Writ would permit
review to determine whether the principles
applicable to summary judgment set forth
in Fed. R. Civ. Proc. 56 were properly
applied in several unique factual and
37
legal contexts. As noted above, the
District Court entered and the U.S. Court
of Appeals for the Third Circuit affirmed
summary judgment for the Respondents on
all issues. On certain issues the lower
courts .strayed very far from the principles
underlying summary judgment. Instead of
granting Respondents' motion, the lower
courts should have granted Petitioners’
Motion since there were no genuine issues
of material fact in dispute and since
Petitioners demonstrated their entitle-
ment to judgment as a matter of law.
1. The Corps Violated NEPA by
Failiug to Consider Costs, Partial
Alternatives, The Great Lakes Water
Quality Agreement of 1978, and a
Number of Environmental Impacts.
38
The first issue on which summary
judgment should have been entered for the
Petitioners concerned the Corps' failure
to consider either partial alternatives
or cost data in assessing alternatives to
the proposed plant. The relevant case
law and applicable regulations impose a
burden on the Corps to consider both cost
3 Unfor-
data and partial alternatives.
tunately, the lower courts avoided these
issues and in one case did so in direct
contravention of the well-established law
of the case doctrine.
The District Court's treatment of
Peticioners' argument that partial
alternatives were not considered centered
on the factual assertion -- totally
30n the duty to consider cost data see:
Calvert Cliffs Coordinating Committee v.
U.S. Atomic Ener Commission, 449 F. 2d
II09 (D.C. Cir OF Columbia Basin
Land Protection Association v.
39
rebutted in the Record -- that Petition-
ers failed forcefully to bring partial
alternatives to the Corps' attention. As
was pointed out to both lower courts,
Petitioners were especially forceful and
direct in noting and urging consideration
of a number of partial alternatives that
would minimize the human and physical
environmental trauma that would be caused
by construction and operation of the
proposed plant.
{footnote 3 continued] Schlesinger, 643
F. 2d 586, 594 (9th Cir. I98I); CEQ
Guidelines: 40 C.F.R. Section isoo, "sh
(4) (1978); dl Regulations: 33 C.F.R.
Section 209.410 (1)(7)(iii) (1978). As
to partial alternatives, see: Natural
Resources Defense Council, Inc. v.
Morton, 458 F. 2d 824 (D. om Cir. 1972);
paturas Resources Defense Council ae
Administrator, ERDA, 451 F. Supp. 1245
oF D.c. 1978); CEO Guidelines: 4Or : .F. R.
Section 1500. 2(b) (1981) ; 40 C.F.R.
Section 1500.8(a)(4) (1978).
40
Moreover, the District Court and by
virtue of its affirmance, the Third
Circuit, ignored the fact that Judge Knox
had, prior to his death, expressly ruled
that partial alternatives had been
presented by the Petitioners to the
Corps. See, Memorandum Opinion,
September 9, 1980 at 4. Thus, Judge
Weber, the successor judge, was bound by
this determination by virtue of the long-
recognized and well-advised doctrine of
the law of the case. See, Hayman Cash
Register Co. v. Sarodin, 669 F. 2d 162,
165 (3d Cir., 1982); Todd and Co., Inc.
v. S.E.C., 637 F. 2d 154, 156 (3d Cir.
1980).
The District Court and the Third
Circuit simply ignored the contention
that cost data should have been, indeed
41
were required to be, considered and
evaluated in the final EIS. Petitioners
demonstrated why such cost data were
crucial in evaluating this project and
showed that even the Corps' own consul-
tant was deeply disturbed by the absence
of such data and analysis.
The second contention on which
Petitioners were entitled to summary
judgment concerned the Corps' failure to
give any consideration to a vital part of
the Great Lakes Water Quality Agreement
of 1978. The only consideration given to
the entire Agreement, which obliges the
United States and Canada to take a number
of steps to reduce discharge of water
pollutants into the Great Lakes system,
is a notation that the Agreement exists
in response to a comment on the draft
42
EIS. Critically, this notation included
no discussion or even recognition that
the Agreement commits the signatories to
“virtually eliminate" discharges of
persistent toxic substances by the end of
1983. By failing to note, much less
explain, the irony of permitting U.S.
Steel to discharge many persistent toxic
substances at the same time as implement-
ing a policy to virtually eliminate such
discharges, the Corps breached its duty
under NEPA.
Summary judgment in favor of Petition-
ers should also have been granted on the
Corps' failure to consider certain
environmental impacts. For example, U.S.
Steel owns a company called the Pittsburgh
& Conneaut Dock Company which owns and
Operates raw material handling and
43
storage facilities in and around Conneaut
harbor. After the proposed plant was
announced, these raw material facilities,
including rail facilities, were greatly
expanded in anticipation of the needs of
the proposed plant. The Corps failed to
take the environmental impacts of this
expansion into account. Recognizing
this, Respondents argued that the expan-
sion was "unrelated" to the proposed
mill. The District Court could not
countenance this argument but it did
accept Respondents' argument that these
efforts were considered when it was plain
from the record that they were not.
Other environmental impacts which the
Corps did not consider included the
biological effects of air pollutants on
the economically important grape and
44
nursery industries which have thrived
in the area because of the unique
microclimate created by shallow Lake
Erie. The Corps likewise failed to
assess the long-term impacts of contam-
inated effluent on aquatic species in the
Lake. Further, the Corps failed to
obtain or even demand of U.S. Steel that
it provide detailed design information on
which reasoned engineering judgments
could be made. Thus, the computations of
air and water pollutants likely to be
emitted from the plant are at best very
crude estimates which in all likelihood
will not come close to conforming to what
may actually occur if the plant is built.
On each of these issues, Petitioners
were entitled to summary judgment since
there were no issues of fact in dispute
45
and since as a matter of law NEPA required
that they be competently, objectively and
adequately addressed in the EIS.
2. The Permit Issued by the Corps Is
Invalid Because It Did Not Comply With
the Procedural Safeguards In Section 401
of the Federal Water Pollution Control
Act, 33 U.S.C. § 1341.
The fourth group of issues on which
Petitioners were entitled to summary
judgment concerned U.S. Steel's and the
Corps' failure to comply with the
certification and referral requirements
in Section 401 of the Federal Water
Pollution Control Act, 33 U.S.C. § 1341.
That Section requires any applicant for a
Federal license for an activity which may
result in discharges into navigable
46
waterways to first obtain a certificate
from the state in which the discharge
originates showing that such discharges
will comply with other sections of the
Federal Water Pollution Control Act. The
Section expressly forbids issuance of any
Federal license until such a certification
is obtained. U.S. Steel failed to obtain
a valid Ohio certification and made no
attempt to obtain one from the Common-
wealth of Pennsylvania even though some
of the discharges from the plant would
originate in Pennsylvania.
With regard to the Ohio certifica-
tion, U.S. Steel applied for and received
a document purporting to be a certifica-
tion but it was invalid for two reasons.
First, it did not comply with U.S. EPA's
regulations relating to state certifica-
tions in that it did not contain a
47
statement that "there is a reasonable
assurance that the activity will be
conducted in a manner that will not
violate water quality standards." 40
C.F.R. § 121.2(1981). The Ohio certifica-
tion did not and could not contain such
an assurance because the EIS - despite
its other shortcomings - revealed that
the plant would seriously violate Ohio's
water quality standards. The other
reason why the certification was invalid
was that the Act and the Corps' own
regulations, 33 C.F.R. § 320.4(b)(1980),
require that the state certification
apply to both construction and operation.
The Ohio certificate - again because of
the inability of U.S. Steel to meet Ohio
water quality standards - applied only to
construction.
48
The District Court and the Third
Circuit avoided these issues by deter-
mining that the doctrine of res judicata
precluded Petitioners from raising these
issues. This determination was based on
the fact that one Petitioner - the Lake
Erie Alliance - raised these questions
before an Ohio agency called the Environ-
mental Board of Review. That agency
found the Ohio certification to be valid.
The lower courts, however, incorrectly
applied the doctrine of res judicata to
all other Petitioners who were neither in
privity with the Alliance nor had standing
to sue since they were and are Pennsylvania
citizens. G.C. Merriam Co. v. Saafield,
241 U.S. 22(1916).
U.S. Steel's failure to obtain a
Pennsylvania certification was even more
49
glaring. Although the plant will be
partly located in Pennsylvania and
although some of the watercourses into
which U.S. Steel will discharge - either
during plant construction or operation -
are located in whole or in part in
Pennsylvania, no application for certifica-
tion was ever made. On its face, there-
fore, the Corps' permit is invalid
because U.S. Steel did not acquire the
necessary certification from
Pennsylvania.
Finally, the Corps violated the
referral procedure set out in Section
401(a)(2), 33 U.S.C. § 1341(a)(2). That
procedure requires the Corps, once it
receives one or more valid state certi-
fications, to immediately notify the
Administrator of the U.S. Environmental
Protection Agency. The Administrator is
50
required to make a determination within
thirty days whether the "quality of the
waters of any other State [may be affected
by issuance of the certification]" and,
if so, notification is to be given to
such other state(s), to the applicant,
and to the permitting agency. 33 U.S.C.
§1341(a)(2). The affected state is then
to have an opportunity to request a
hearing at which the public would be
permitted to testify. Section 401(a) (2)
expressly precludes issuance of a permit
where, as a result of this hearing,
"imposition of conditions cannot
insure...compliance [with applicable
water quality requirements]." Id.
It is undisputed that the Corps did
not formally notify U.S. EPA that it had
received the purported Section 401
certificate from Ohio. Respondents' lame
51
excuse for not having done so is that
"[Rlepresentatives of EPA, Regions III
and V, and members of the Technical team,
were fully informed of Ohio's action."
[Respondents' Brief in Support of Summary
Judgment, at 66). The District Court
improperly accepted this excuse adding
that the "record is replete with refer-
ences to the exchange of information
between federal and state representa-
tives.'' Memorandum Opinion, November 23,
1981, at 23. The U.S. Court of Appeals
for the Third Circuit apparently agreed.
However, neither of the lower courts nor
the Respondents cited any evidence that
either U.S. EPA or the Commonwealth of
Pennsylvania had even constructive notice
of Ohio's action.
Section 401(a)(2)'s requirements are
the law of the land. They do not apply
52
differentially. They come into force
whenever and wherever an applicant for a
Federal license or permit seeks authori-
zation to conduct any activity including
construction or operation of facilities
which could result in discharges to the
navigable waters of the United States.
Clearly, U.S. Steel seeks to discharge
pollutants into the navigable waters of
the United States during construction and
operation and into watercourses in both
states. Thus, Section 40l(a)(2)'s
referral requirements are applicable and
must be complied with.
3. The Permit Issued By the Corps Is
Invalid Because the Corps Failed to
Comply with the Fish & Wildlife Coordina-
tion Act, 16 U.S.C. §§ 661 et seq.
53
Petitioners contend that Corps
violated both the letter and spirit of
the Fish and Wildlife Coordination Act of
1934, 16 U.S.C. §§ 661 et seq. That Act
requires full consultation with Federal
and state wildlife agencies whenever the
waters of any stream or other body of
water are proposed to be diverted,
channelled, or otherwise modified. 16
U.S.C. § 662. The statute contemplates
that such consultation will conserve
wildlife resources by preventing loss of
and damage to such waterways. Id. at
662(a). To ensure full consultation, the
Act requires reports of the wildlife
agencies to become an integral part of
any report prepared
. by an agency of the Federal
Government... when such reports are
presented to... any agency or person
[empowered] to... authorize...
construction of water-resource
development projects."
54
Id. at 662(b). These requirements estab-
lish a national policy requiring that the
wildlife conservation aspects of any
project be explored and evaluated. Udall
v. Federal Power Commission, 378 U.S.
428, 443-444 (1967). Failure to consider
adequately wildlife implications of a
proposed action is both a violation of
the Fish and Wildlife Coordination Act
and NEPA. Cape Henry Bird Club v. Laird,
359 F. Supp. 404 (W.D. Va.), aff'd, 484
F. 2d 453 (4th Cir. 1973); Environmental
Defense Fund, Inc. v. Froehlke, 73 F. 2d
346 (8th Cir. 1972).
The Fish and Wildlife Coordination
Act, and the Corps' regulations imple-
menting it, require that active and full
consideration be given to the views of
appropriate wildlife agencies. Thus,
Section 661 of the Act requires
55
[t}he reporting officers in project
reports...[to] give full considera-
tion to the report and recommenda-
tions of the Secretary of the
Interior and to any report of the
State agency on the wildlife aspects
of [a] project [], and the project
shall include justifiable means and
measures for wildlife purposes as the
reporting agency finds should be
adopted to obtain maximum overall
project benefits (emphasis supplied).
Id. at 662(b). Likewise, the Corps' own
regulations specifically require deci-
sion-makers to
give great weight to [the views of
wildlife agencies] on fish and wild-
life considerations in evaluating the
application. The applicant will be
urged to modify his proposal to
eliminate or mitigate any damage to
such resources, and in appropriate
cases the permit may be conditioned
to accomplish this purpose (emphasis
supplied).
An agency is obligated to comply with its
own regulations. Feliciano v. Laird, 425
F, 2d 424, 429 (2d Cir. 1970); Natural
Resources Defense Council, Inc. v.
Callaway, 524 F. 2d 79, 96 (2d Cir.
56
1975). Petitioners brought forth evidence
in response to Respondents’ motion for
summary judgment showing that numerous
agencies felt that very little serious
consultation had been done and even less
weight given to their views in the entire
ELS process. However, instead of waiting
to hear from the agencies themselves, the
District Court decided all inferences
favorably to U.S. Steel and the Third
Circuit affirmed. This is impermissible
and must be reversed.
CONCLUSION
For all of the foregoing reasons,
Petitioners respectfully request that a
Writ of Certiorari be granted.
57
Respectfully submitted,
611 Park Build np
140 Euclid Avenue
Cleveland, OH 44117
(216) 781-9917
Jerome F. Weiss
Weiss, Neiditz, Petrey, & Mandel
National City Bank Bldg., 10th Floor
East 6th Street
Cleveland, OH 44114
(216) 589-9993
Attorneys for Petitioners.
58
Certificate of Service
I hereby certify that a true and
complete copy of the foregoing Petition
for Writ of Certiorari was mailed by
regular U.S. Mail, postage prepaid, to
the following individuals on this day
of July, 1983:
Rex E. Lee, Esq.
Solicitor General of the
United States
10th and Constitution
Avenues, N. W.
Washington, D.C. 20530
Attorney for all Federal
Respondents.
Thomas R. Wright, Esq.
Eric A. Schaffer, Esq.
Blair S. McMillin, Esq.
Reed, Smith, Shaw and McClay
Union Trust Building
P. O. Box 2009
Pittsburgh, Pennsylvania 15230
Attorneys for U.S. Steel
Corporation.
Staughton Lynd
James Callen
Northeast Ohio Legal Services
804 Metropolitan Tower
Youngstonw, Ohio 44503
(216) 744-3196
Attorneys for Respondent
Tri-State Conference on the
Impact of Steel in Ohio,
West Virginia and Pennsylvania
59
James Denny
1201 Realty Building
Youngstown, Ohio 44503
(216) 747-6718
Attorney for Respondent
Local 1397
United Steel Workers of America
Michael J. Healy
1906 Law and Finance Building
cee nt Pennsylvania
(412) 391-7707
Attorney for Respondent
Local 1397
United Steel Workers of America
(Homestead, Pennsylvania)
BRENT L. EN&LISH
One of t torneys for
Petitioners.
60
Appendices
National Environmental Policy Act, 42
U.S.C. §§4321 et seq.
. Relevant Sections of the Federal Water
Pollution Control Amendments of 1972,
33 U.S.C. §§1251 et seq.
. Relevant Sections of the Fish and
Wildlife Coordination Act of 1934,
16 U.S.C. §§661 et seq.
. Great Lakes Water Quality Agreement of
1978.
. Regulations of the U.S. Army Corps of
Engineers related to the Fish and
Wildlife Coordination Act, 33 C.F.R.
§320.4(b) (1980)
. Regulations of the U.S. Environmental
Protection Agency related to certi-
fication by states pursuant to 33
U.S.C. §1340; 40 C.F.R. §121.2(1981).
. All docket entries made by the United
States Court of Appeals for the Third
Circuit in Case No. 82-5156 including
the initial per curiam decision
rendered on January 25, 1983, the
subsequent order suspending the
January 25, 1983 order, the subsequent
order of February 16, 1983 reinstating
the initial decision, and the March
11, 1983 decision declining rehearing
en banc.
Copy of the Hon. Judge Weber's
decision granting Respondents'
61
Consolidated Motion for
Summary Judgment dated
November 23, 1982.
9. Copy of the Hon. Judge Wm. Knox' order
of September 7, 1981 on cross-motions
for partial summary judgment.
se RF
62
Page Missing from
Filming Copy
CHAPTER 55—NATIONAL ENVIRONMENTAL POLICY
Sec
$321. Congressional declaration of purpose
SUBCIIAPTER I—POLICIES AND GOALS
4491. Congressional declaration of national environmental policy.
(a) Creation and maintenance of conditions under which
man and nature can exist in productive harmony.
(b) Continuing responsibility of Federal Gov. snment to use
all practicable means to improve aud coordinate
Federal plans, functions, programs, and resources.
(c) Responsibility of each person to contribute to preser-
vation and enhancement of environment.
at... Cooperation of agencies; reports; availability of informa-
tion; recommendations; international and national coor
dination of efforts.
iat, Conformity of administrative procedures to national environ-
mental policy.
toh Othe. statulory obligations of agencies.
435. Effeccs supplemental to existing authorizations.
SUBCHAPTER II—COUNCIL ON ENVIRONMENTAL QUALITY
i341, Reports to Congress; recommendations for Icgislation,
4342. Establishment; membership; Chairman; appointments.
443. Employment of personnel, experts and consultants.
i444. Duties and functions,
4345. Consultation with Citizen's Advisory Committee on FEnviron-
mental Quality and other representatives.
4346. Tenure and compensation of members.
4346a, Travel reimbursement by private organizations and Federal,
State, and local governments.
4346b. Expenditures in support of international activities.
4347. Authorization of appropriations.
SUBCHAPTER III—MISCELLANEOUS PROVISIONS
4361. Plan for research, development and demonstration.
§ 4321. Congressional declaration of purpose
The purposes of this chapter are: To declare a national policy
which will encourage productive and enjoyable harmony between man
and his environment; to promote efforts which will prevent or elimi-
Rate damage to the environment and biosphere and stimulate the
heuith and welfare of man; to enrich the understanding of the ecolog-
$23
A-74
42 § 4321
PUBLIC HEALTH AND WELFARE
Ch.
a3
ical systems and natural resources important to the Nation; and to
establish a Council on Environmental Quality.
Pub.L. 91-190, § 2, Jan. 1, 1970, 83 Stat. 852.
Histerical Nete
Short Title. Section 1 of I’'ub.L. 91-100
Providet: “That this Act (eaacting this
chapter) may he cited as the ‘National
Eaviroamental Policy Act «4 1960'.~
¥ of
VR, W783, set out an « mute under nec.
thee 4331 of this tithe, provides fur the
preveutive, cuatrul, and alatement of on
vireoments! pollution at federal facilitic.
Admiai.
Transfer of Veartions. ¥
the Kaviroamesta! Irevectioa Agency aad
the offwers and componeats therevt os
of Mefase Art Fermi
Admiai ‘ of Refuse At
permit pregream te regulate discharge uf
and other refuse meatier intq
relate to of are vtilieed te
with but mot as-
navigable waters of United States -
thete tri see = Ex.00d No.1157
ertement of mositoriag fee 1 y
purpoces, of alternative automotive puwer
syetema, t(raasferred to and vesied ia the
Administrator, Keergy Meseercrh aad De-
sce = eectivea
sI4(a) of this tithe
__ Prevention, Comet, end Abatement of
Vederal Yo-
ities, Mx.Oré.No. 11752, Dee. i, 1973, 38
REORGANIZATION
Dee. 22, 1970, SG VR. OGET, eet aut on
sete wander section 407 of Title 33, Navi.
gation and Nevigahie Waters.
Leglelative Hictery. For lexisiative
history and perpose of Pub.L. 01-100, nee
1D UACede Cog. and Adm News, »
TiSl.
FLAN NO. 3 OF 1070
Eft. Dec. 2, 1970, 35 FR. 15623, B44 Stet. Sous
Prepered uy = Poesidest = trasemitted to the Senate and the Mouse of Mey-re
scombied, July 8. 1970, pursuant to the provisions 4
cpus 6 uf tate hoffe Gane Gas Gas ten en of Tithe 5)
ENVIRONMENTA!. PROTECTION AGENCY
Section 1. Ketablichment of Agency.
(a) There 2 hereby ectabliohed | the Kavi-
or disability of the Admiaistrator of wm
the event of @ vacancy ia the uffie
Agency, b
referred to ee the “Ageacy.”
(b) There shall be at the head of the
Ameacy the Administrator of the Kevi-
Schedule Pay Rates (5 USC. 5313 (sec-
toe 5313 of Title 5}).
(e) There shall be fa the
hereafter for Level 111 of the
Executive Schedule Pay Rates (3 U.S.C.
5314 (eection $314 of Title 54). -_ The Dep-
wty Admisistrater eball p euch
(4d) There shall be ia the Agency a
te exceed five Assistant Administrator:
of the Kavirvameatal rutection Agen:
whe shall be eppeisted by the I’resilen
by eed with the advice and consent 4
the Senate, and shell Le compenssted ai
the rate sow er hereafter provided f+
Level IV of the Executive Schedule Iss
Kates (5 U.S.C. 3315 (section S315 of Title
5)). Keck t Admisist what
perform such Seautons ae the Adwisw
(rater shall frum time te time assige of
Ser, 2% Tramefers te Kavirenmeatel
Protection Agency. (0) There are hercl
ed tu the Ad ‘ :
(1) All Cuuctloas vested by law in ite
Secretary of the laterior aad the lepert
ment of the laterior which are adieu
tered through the Federal Water Queir''
fuactions ac the Adainictrater shall from
time to time aesign or delegate, ead shall
ect a6 Administrator duriag the atecace
8, all fumiions which #ere
tremsferred to the Secretary of tue lute
or by Nevrgasization Piaa No. 2 uf i
leet out ia the Appendix te Title 3) +*
524
ch. a3
Ws tee of off-road vehicles of public
lands
je designating as officially open te
treed vehicle une att land met other
ere festricted of closet, Mevretary ol
jepartment of Laterine and other defend.
sete Vieleted CEPTess requirements wf
vert Ne 116+, § Jiel, set out af 8
te weet thin eevtion, requiring that all
egeativts be based apes criteria set
tarth thetrin ead that criteria tr epphed
te desvignations of both ae sed sonune
we ot reed vehicles Nathonal Wildlife
tatieraten ¥ Merton, PC .1.C.1075, me
Psapp Me
Where by designeting all otherwise ea-
rewitated land open foe use by off-rved
vcew les the Nureew of Land Masaegement
retre tet (ature public participation tn
teugnation process to question whether
tates of specific eres of (rall should he
chaser! from “open” te “restricted” of
thet”, adequate opportunity fer public
45 ENVIRONMENTAL POLICY
42 $4331
1% Precedersl of sebstantive metere of
rights created
This chapter creetes caly procedural
sud ant substantive riatt. Merrie ©
Teneesere Val. Authority, 16 ( Ala 1972.
5 PF Sepp. 2
1). Private right of action
I'rivate parties are allewed to euferre
this chapter an private attorneys geuerel.
Recker © Wilts, 1.C.N C1872, Oe FP
Mapp. 403.
This chapter ders at create any sul
SMentive privete rich? Virginiens fur
lhetios . Veipe, 1.0 Ve 197TD, HA FF Sepp
S72, offirmed ia part, reversed in part oo
other grounds S41 24 442.
This chapter gives rine to se private
couse of action sgainat private corpers-
tiene which aliegediy polluted the sir
Tenner © Armee Meet Corp. 1C. Tes.
1072, 30 F Sepp. DD
pertepation in designation of areas end
tras, an Coquiced by Ka Ord No llehH, §
bet thi, = ewt an « fete anter this
teem, wan denied. Id.
SUBCHAPTER I—POLICIES AND GOALS
§ 4331. Congressional declaration of nationa’ environ-
mental policy
dies.
of weder which men and nature
cam exint ia productive harmeny
Creation and mot
(a) The Congress, recognizing the profound impact of man’s activi-
ty on the interrelations of all components of the natural environment,
farticularly the profound influences of population growth, high-densi-
ty urbanization, industrial expansion, resource exploitation, and new
and expanding technological advances and recognizing further the crit-
«al importance of restoring and maintaining environmental quality to
the overall welfare and development of man, declares that it is the con-
tinuing policy of the Federal Government, in cooperation with State
and local governments, and other concerned public and private organi-
tations, to use all practicable means and measures, including financial
and technical assistance, in a manner calculated to foster and promote
the general welfare, to create and maintain conditions under which
man and nature can exist in productive harmony, and fulfill the social,
fconomic, and other requirements of present and future generations of
Americans.
547
42 § 4331
c ‘
PUBLIC HEALTH AND WELFARE
Ch.
ibility of Federal Government te use all practicable
qcane te improve and coordinate Kederal plana, functions,
ereanrama, and resources
(b) In order to carry out the policy set forth in this chapter, it is
the continuing responsibility of the Federal Government to use all
practicable means, consistent with other essential considerations of na.
tional policy, to improve and coordinate Federal plans, functions, pro.
grams, and resources to the end that the Nation may—
(1) fulfill the responsibilities of each generation as trustce of
the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and e«-
thetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environ.
ment without degradation, risk to health or safety, or other unde-
sirable and unintended consequences ;
(4) preserve important historic, cultural, and natural aspects uf
our national heritage, and maintain, wherever possible, an en\.-
ronment which supports diversity and variety of individu!
choice ;
43
(5) achieve a balance between populution and resource u~
which will permit high standards of living and a wide sharing ot
life’s amenities; and
(6) enhance the quality of renewable resources and approuwt
the maximum attainable recycling of depletable resources.
Responsibility of cach pervon te contribute to preservation
ead cab mt of
(c) The Congress recognizes that each person should enjoy a healt’
ful environment and that cach person has a responsibility to contri!
ute to the preservation and enhancement of the environment.
Pub.L. 91-190, Title I, § 101, Jan. 1, 1970, 83 Stat. 852.
Historical Nete
allowed « lesser somber te cvmduet beat
Cc tees Pee Growth aad
(me American y Pm Pod.l. 01-212,
1-9, Mar. 1@, 1970, ba Mat. @-@, estab:
the Lied -—
tage,
members wf the Commissions, teue
lished the C wa Pep
Grewth end the Ameriraa Future te con-
dust and spenene ouch studies end ce
the © te ewadart «se
inte certain preecrived aspects of re!
tee arowth te the Caned Btates an)
etal
search cad make such
ae might be mecessary to preville infer.
mative and educative te all levels of guv-
ernment in the United Mates, sad to our
people regarding a broad raage of prob-
jews ateeciated with pepeletion growth
and their implications for America’s (u-
ture; prescribed the cumpesiiion of the
Commission; provided for the appeint-
ment of ite members, and the designation
of a Chairman aad Vice Chairman; re-
quired @ majerity of the members of the
Commission to constitute @ quorum, Wet deems necessary to carry out i>
for the appointment at an
Virevter sad ether pereoanct
scribed their cumpensative.
; oe.”
auth far
os
the Commission te cater tate cowl”
with public agencies, private firm
tuttoas, and ladividesia fue the «'*
of reerarch and surveys, the prrie'*
of reports, and other activities were”
te the diecharwe of its duties an4
quest from ony Federsi depart’
Savery any information and asenieh"
‘
548
ENVINONMEN
53
r
jodh eal Conclasions contrary te pelt
7
wet event Cofelastene ahah
patti ipetrem on frustrae
an sivnal poly with teperd
+ ehepter Thompeen © Pugate
0a 1952 307 PB Sapp tu
reeveation, ete, ef pelletion at feder-
oe fecuitios
Yotied Ne UTS, set wut ase mete wn
thus mer tiet, efating pelley of federet
efoment (6 oleerve applicalle stew
4 fet preveetion, ewattel end ebate-
at of environmental pollution ta comp.
om erth state and lal guveraments
fel net suthorine blanket exemption of
Scone faciiities from specified re
SSS YE Se aye
¥
pormuts fot operation of equipment
42 §$ 4332
fausime Gif Pollution Stete of Ale
Seeter © A Ale 1974 WR PD tas tenet
ed on othet grounds WENCH MD
TAL POLICY
‘
& = Vretection ef quality ef erhen tile
The environmental pelicy expressed on
thie chaptet ts a0 treed as the mind san
Couceive end neressariiy inciudes «oncern
for the quality of wrben life: easton
mental probleme of the city ere fet as
readily) wleatifiatic a« clean eit end clean
water Nucleus of Chirage Ilomeow ners
Ase © Lyon, CAT I0TR, Se PF du M5.
vertiorart @enied OO ACH ited 42) US
O67, 47 1. Ma 2a T3
Thies chapter must be construe! to te
clude protection of quality of life for city
fesidents First Nat Nenk of Chicage ©
Michardsen, C ATL 1073, 484 F 2d Law
treats of the stetes fer preurement
4332. Cooperation of agencies; reports; availability of in-
formation; r dations; international and
national coordination of efforts
The Congress authorizes and directs that, to the fullest extent possi-
vie (1) the policies, regulations, and public laws of the United States
teall be interpreted and administered in accordance with the policies
wt forth in this chapter, and (2) all agencies of the Federal Govern-
rent shall—
(A) utilize a systematic, interdisciplinary approach which will
insure the integrated use of the natural and social sciences and
the environmental design arts in planning and in decisionmaking
which may have an impact on man’s environment;
(B) identify and develop methods and procedures, in consulta-
tion with the Council on Environmental Quality established by
sutchapter II of this chapter, which will insure that presently un-
quentified environmental amenities and values may be given ap-
Propriate consideration in decisionmaking along with economic
end technical considerations ;
(C) include in every recommendation or report on proposals for
legislation and other major Federal actions significantly affecting
the quality of the human environment, a detailed statement by the
responsible official on—
(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be
avoided should the proposal be implemented,
(iti) alternatives to the proposed action,
(iv) the relationship between local short-term uses of
man's environment and the maintenance and enhancement of
long-term productivity, and
553
42 $4332 puniic HEALTH AND WELFARE Ch. 35
(v) any irreversible and irretrievable commitments of i
sources which would be invulved in the proposed action
should it be implemented.
Prior to making any detailed statement, the responsible Feders|
official shall consult with and obtain the comments of any Feveral
agency which has jurisdiction by law or special expertise with
spect to any environmental impact involved. Copies of such sta
ment and the comments and views of the appropriate Federal
State, and local agencies, which are authorized to develop and en.
force environmental standards, shall be made available to the
President, the Council on Environmental Quality and to the publi
as provided by section 552 of Title 5, and shall accompany the
proposal through the existing agency review processes ;
(D) Any detailed statement required under subparagraph \()
after January 1, 1970, for any majer Federal action funded under
a program of grants to States shail not be deenied to be legully
sufficient solely by reason of having been prepared by a Stats
agency or official, if:
(i) the State agency o¢ efficial has statewide jurisdiuti
and has the responsibility for such action,
(ii) the respensible Federal official furnishes guidaun:
aad parucipates ia such preperation,
(iii) the eumpensible Federal official independently cvale
ates such statement prior to its approval and adoption, a:
(iv) after January 1, 1976, the responsible Federal offi.
provides carty notification to, and solicits the views of, «!.
ether State or any Federal land management entity of am
action or any alternative thereto which may have significan'
impacts upon such State or affected Federal land manays
ment entity and, if there is any disagreement on such i”
pacts, prepares a written assessment of such impacts +!
views for incorporation into such detailed statement.
The procedures in this subparagraph shall nut relieve the Feder.
official of his responsibilities for the scope, ubjectivity, and ow
tent of the entire statement or of any other responsibility wi’
this chapter; and further, this subparagraph docs not affect |!
legal sufficieney of statements prepared by State agencies “il:
less than statewide jurisdiction.
(E) study, develop, and describe appropriate alternatives ©
recommended courses of action in any proposal which invol\«> =
resolved conflicts concerning alternative uses of available |
sources ;
(F) recognize the worldwide and long-range character of +!
ronmental problems and, where consistent with the foreign [**"
of the United States, lend appropriate support to initiatives. '
554
-
53 ENVIRONMENTAL PoLicy 42 § 4332
a2
jutions, and programs designed to maximize international cooper-
ation in anticipating and preventing a decline in the quality of
mankind's world environment,
(G) make available to States, counties, municipalities, institu-
tions, and individuals, advice and information useful in restoring,
maintaining, and enhancing the quality of the environment;
(H) initiate and utilize ecological information in the planning
and development of resource-oriented projects; and
(1) assist the Council on Environmental Quality established by
subchapter II of this chapter.
‘Pub.L. 91-190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853; Pub.L. 94-83,
‘Avg. 9, 1975, 89 Stat. 424.
, Ste erigiveal.
: Historical Nete
| itd Amendment. Nubpar. (1) Vel. legisiative Mistery, For legislative
HN edded subpar. (1) Former salper history aed purpose of Pub L. 01-190, see
redewaneted (E) 1970 US Code Cone and Adm News. &
TT3). See, olee, Publ. 0443 1975 US
sulpere, (E) te (1). Publ. 0-40 re
Q-vgnated former eubpars. (1) to (HD as Cade Cong. 00 Adm.Xews, p 60
Cu
to ilh
West's Federal Forms
plaint for injunction tue failure te comply, see le
Pee tral erder, see § 2807.12.
Code of Federal Regulations
b+ cotements, standards ete,
Agency for Luternational Develupment, see 22 CYR T2161 et sey
Aerivviturel Stabilizetivm aad Conservation Service, cee T CFR TOOL et seq
Worees of Land Management, see 42 CHK 2000 et eq, e200 2 et em
Cuil Aeronautics Board, see 14 CFR 201.1 et seq, 2811 et sey, DID 1 et seq. Wel
et seq
Coast Guard, see 46 CPIt 1001-1 et seq.. 12.01 et seq. DiLOl-1 et seq. TLOL-1 et seq
DL Ol-t et seq. 101-1 et seq. 1760-1 et sey, IT Ol-1 et req. 190.01-1
ot sey
Committee foe Purchase from the Dilnad aad Other Severely Heanduapped see
41 CFR SI-41 et coq
Coancit on Environmental Quality, see 40 CPE 1001 et seq. 1510.1 et seq
Defense Lepartment, see 72 CHR 2141 et oy
heergy Research and Lerelap Ad retion, eee 10 CYR TILL et seq
Earireamental Protection Ageacy, ee 0 CHK Ch I
Federal Aviation Administration, see 14 CFR 21.1 et seq. 26! ef seq. Ll et sey
Vederat Highway Artministration, see 23 CF 420.10) et seq, TITIOL et sey.
TSLL et seq. TIO DU et sey. TTL et mew, TDL ot seq
Peteral Trade Commission, see 16 CFK 1 1 et seq
Vent and leug Administration, see 21 CHK Zl et sen
National Aeronautics and Space Administration, are 14 C
National Highway Traffic Mefety Admintatration, see *crn Sol
National Merune Fisheries Serview, sce Jo CRM S511 ef sey.
Nectese Reeulatoes Commission, see 10 CRI 21 et seq, St!
‘meupational Safety and Health Administration, see TCH WOO 1 et sem
Office of Educative, see CRE 10m 1S, low ~
Sell Couservation Service, ee T CRI GAL et seq
Tennessee Valley Authority. see IS CRE JAG et sey
Urhan Mass Transpettation Administrative, see 49 CFR 613.100 et sey
555
A-80
42 § 4332
Note 516
court believed (het pleiatiffe weeld pre
vail (a (hott Coutention that, even if (here
wae din tetioe te determine whether cart.
fotmental statement showld be prepared,
perth alter exercise of claimed discretion
PUBLIC HEALTH AND WELFAKE
Ch, 35
wee arbilrery #e@ UAreavenetie mote
for ardlet suspending preliminary iajom
thee eg@einet comeirmetiv® Wte dete
Sehere ©. Volpe, 1h Wie 1971, 296 PF tap
~
\n determing net te prepere statement
§ 4333. Conformity of administrative procedures to nation.
al environmental policy
All agencies of the Federal Government shall review their present
statutory authority, administrative regulations, and current policies
and procedures for the purpose of determining whether there are any
deficiencies or inconsistencies therein which prohibit full compliance
with the purposes and provisions of this chapter and shall propose to
the President not later than July 1, 1971, such measures as may be
necessary to bring their authority and policies into conformity with
the intent, purposes, and procedures set forth in this chapter.
Pub.L. 91-190, Title I, § 103, Jan. 1, 1970, 83 Stat. 854.
Mieterieal Nete
Leaicietive Mistery.
history and perpece of I’'eb.L. 91-180, are
Netes of
-
j
:
H
i,
i
i
|
3
i
|
|
|
b
Bi
em USB Cade Come and Adm News, »
2751.
Decisions
2% Meartece
This chapter dues aot require exten-¢
adminiatretive proceedings, aseither the
Admistetrative Uroredure Act, sertive
SB et coq. and 701 et seq. of Title 3. ow
this chapter compe! egeacy [4 apperrnt ov
examiner ond conduct hearings. Naters:
Rewurces Defense Council, lee rt *
Cc Ca:
Be long a0 cach final derision in +a
major federal ection. ladividual of ceuet
ie, comperte with requirements of thir
ehapter aad ether regulativas require’
by Atomic Energy Act of 1834, sete
2201 ot seq. of thie tithe. aad the Enerey
Reorganisation Act of 1074, section 5+!
et cng. of thie title, it dees not metirr
thet Xuctear Regul y Commi a
dresses certain iseues in bread eele it
quiry end others in limited jadividue!
preceediags. Id.
-
3
4334. Other statutory obligations of agencies
Nothing in section 4332 or 4333 of this title shall in any way affect
the specific statutory obligations of any Federal agency (1) to comp!’
with criteria or standards of environmental quality, (2) to coordinate
756
ch. 33 ENVIRONMENTAL PoLicy 42 § 4341
- onsult with any other Federal or State agency, or (3) to act, or re
‘sin from acting contingent upon the recommendations or certifica-
» of any other Federal or State agency.
>.) L. 91-190, Title 1, § 104, Jan. 1, 1970, 83 Stat. 854.
Histerical Nete
Leewiotive Mistery, Por legisiative 160 USCode Come sad Adm News, »
~ or and purpose of ut 1. 01-100, see 2751
Netes of Decisions
worrally 8
pprmenled with other lowe 1 tification, Calvert Cliffs’ Coordioatiag
Committee, Ine + U. SB. Atomuc Eoergy
— Commission, 1071, 449 F.2d 1100, We US
Appic we
Cenctrertion with ether lowe
edume te water quality certifica, % Generetty
wade tiem UITL of Tithe 33. te This chapter dees wot limit authority
toate dusive with procedures of ony guvernmental agency ie aay per
her thy _/) end does ant preclude manent of conclusive manner, but doer
of tae laties weder thie chapter, mandate that action be taken only in
+ ertifieations essentially establah complete awareness of part of actor of
oom conditvees for great of lieense, ene ' ] wf bie ection
» boerey Commission con conduct end (hat be first take atepe requiret ty
eee aealpete of enviroemental ef (hie chapter National Hethum Corp +
+ of ptopened action @espite privet cer Merton. C A Kea 1071, 4 Fld 60
: 4335. Efforts supplemental to existing authorizations
The policies and goals set forth in this chapter are supplementary to
‘sone set forth in existing authorizations of Federal agencies.
+L 91-190, Title I, § 105, Jan. 1, 1970, 83 Stat. 854.
Historical Note
lrauietive Mistery, For legislative 1008 UN Code Coma and Adm News, p
ty aed purpose of Pub L. 01-190. see 2751
SUBCHAPTER I1—COUNCIL ON ENVIRONMENTAL QUALITY
3 4341. Reports to Congress; recommendations for legisla-
tion
The President shall tranamit to the Congress annually beginning
ily 1, 1970, an Environmental Quality Report (hereinafter referred
“+ a» the “report”) which shall set forth (1) the status and condition
‘the major natural, manmade, or altered environmental classes of the
Nation, including, but not limited to, the air, the aquatic, including
“arine, estuarine, and fresh water, and the terrestrial environment,
“cluding, ut not limited to, the forest, dryland, wetland, range, ur-
“". suburban, and rural environment; (2) current and foreseeable
757
A-82
A 4
ae
rer
ee yan
NOP MED BMT. MT) tone ee bi gy Ire
a i] at +e oe "
ee ae Ss + + WS Dh ad ie as mn n ;
, ‘
Page Missing from
Filming Copy
33 § 1328
ture project may do so if upon submission of such program the Ad-
ministrator determines such program ix adequate to carry out the
objective of this chapter.
June 30, 1948, ¢. 758, Title LIL, § 318, as added Ovt. 18, 1972, Pub.L.
92-500, § 2, 86 Stat. 877, and amended Dee. 27, 1977, Pub.L. 95-217, §
63, 91 Stat. 1599.
NAVIGABLE WATERS Ch. 26
Historical Nete
101T Amendment, Muliaee. (a), Pall. ment apylivetie to a permit tesued wader
( 21T aided “pursuant to section 1362 of
thin tithe” followleg “Pederal of Mate au
pervisioa”.
Mulnee. Vell, 06-217 atreack out
* et later than Jampery 1, 1974," tot.
lowing “The Admintatrator shall by rex
viation” le exietiag provisions aad added
proviniems that (he regulations required
the application te (he discharge of each
eriterion, factor, provedare, aad require
wevtiom [202 of thin title, ae the Adutiaie
tratee determines Gerwesary te certy @wt
the objectives of (hie chapter,
Mute te). Veh. St added
wubeer, (ec).
ivateletive Mistery. Pee legislative
history and purpose of ul lL. Slam, see
wis UK Cede Come ead Adm News, p
MN Mee, lee, Mal b. 05.297, TT Us
Cole Comme and Adm News, p. (328
Code of Federal Regulations
Vrocedare for discharge, we 40 CRA MGT ot neq,
SUBCHAPTER IV—PERMITS AND LICENSES
Certification
with applicable requ + apoticatt °
Hernne sunpension
(a)(1) Any applicant for a Federal license or permit to conduct any
activity including, but not limited to, the construction or operation of
facilities, which may result in any discharge into the navigable wa-
ters, shall provide the licensing or permitting agency a certification
from the State in which the discharge originates or will originate, or,
if appropriate, from the interstate water pollution control agency hav-
ing jurisdiction over the navigable waters at the point where the dis-
charge originates or will originate, that any such discharge will com-
ply with the applicable provisions of sections 1311, 1312, 1313, 1316,
and 1317 of this title. In the case of any such activity for which
there is not an applicable effluent limitation or other limitation under
sections 1311(b) and 1312 of this title, and there is not an applicable
standard under sections 1316 and 1317 of this title, the State xhall so
certify, except that any such certification shall not be deemed to satis-
fy section 1371(c) of this title. Such State or interstate agency shall
establish procedures for public notice in the case of all applications for
certification by it and, to the extent it deems aj ropriate, prowedures
for public hearings in connection with specific applications, In any
cause where a State or interstate ayency has no authority to give such
a certification, such certification shall be from the Administrator. If
the State, interstate agency, or Administrator, as the case may bx.
fails or refuses to act on a request for certification, within a reason-
212
§ 1341.
C, mm"
A-84
Ch. 26 POLLUTION PREVENTION 33 § 1341
able period of time (which shall not exceed one year) after receipt of
such request, the certification requirements of this subsection shall be
waived with respect to such Federal application, No license or permit
shall be granted until the certification required by this section has
been obtained or has been waived as provided in the preceding sen-
tence, No license or permit shall be granted if certification has been
denied by the State, interstate agency, or the Administrator, as the
case may be,
(2) Upon receipt of such application and certification the licensing
or permitting agency shall immediately notify the Administrator of
such application and certification, Whenever such a discharge may
affect, as determined by the Administrator, the quality of the waters
of any other State, the Administrator within thirty days of the date
of notice of application for such Federal license or permit shall so no-
tify such other State, the licensing or permitting agency, and the ap-
plicant, If, within sixty days after receipt of such notification, such
other State determines that such discharge will affect the quality of
its waters so as to violate any water quality requirement in such
State, and within such sixty-day period notifies the Administrator and
the licensing or permitting agency in writing of its objection to the is-
suance of such license or permit and requtsts & poblic hearrg on foc
oly Con, the licensing of permitting agency shall hold such a hearing.
The Administrator shall at such hearing submit his evaluation and
recommendations with respect to any such objection to the licensing or
permitting agency. Such agency, based upon the recommendations of
such State, the Administrator, and upon any additional evidence, if
any, presented to the agency at the hearing, shall condition such license
or permit in such manner as may be necessary to insure compliance
with applicable water quality requirements. If the imposition of con-
ditions cannot insure such compliance such agency shall not issue such
license or permit.
(3) The certification obtained pursuant to paragraph (1) of this
subsection with respect to the construction of any facility shall fulfill
the requirements of this subsection with respect to certification in
connection with any other Federal license or permit required for the
operation of such facility unless, after notice to the certifying State,
agency, or Administrator, as the case may be, which shall be given by
the Federal agency to whom application is made for such operating |i-
vense or permit, the State, or if appropriate, the interstate agency or
the Administrator, notifies such agency within sixty days after receipt
of such notice that there is no longer reasonable assurance that there
will Le compliance with the applicable provisions of sections 1311,
1112, 1318, 1316, and 1317 of this title because of changes since the
‘onstruction license or permit certification was issued in (A) the con-
“truction or operation of the facility, (B) the characteristics of the
waters into whieh such discharge is made, (C) the water quality cri-
teria applicable to such waters or (DL) applicable effluent limitations
other requirements, This paragraph shall be inapplicable in any
‘ase where the upplicant for such operating license or permit has
tailed to provide the certifying State, or, if appropriate, the inter.
213
85
>
'
33 § 1341 NAVIGANLE WATERS Ch. 26
state axeney or the Administrator, with notice of any proposed
changes in the construction or yperation of the facility with respect to
which a construction license or permit: has been granted, which
changes may result in violation of section 1311, 1512, LI1S, 1316, of
1317 of this title,
(4) Prior to the initial operation of any federally licensed or per-
mitted facility or activity which may result in any discharge into the
navigable waters and with respect to which a certification has been
obtained pursuant to paragraph (1) of this subsection, which facility
or activity is not subject to a Federal operating license or permit, the
livenswe or permittee shall provide an opportunity for such certifying
State, or, if appropriate, the interstate agency or the Administrator to
review the manner in which the facility or activity shall be operated
or conducted for the purposes of assuring that applicable effluent limi-
tations or other limitations or other applicable water quality require:
ments will nut be violated. Upon notification by the certifying State,
or if appropriate, the interstate agency or the Administrator that the
operation of any such federally licensed or permitted facility or activi-
ty will violate applicable effluent limitations or other limitations or
other water quality requirements such Federal agency may, after pub-
lic hearing, suspend such license or permit. If such license or permit
is suspended, it shall remain suspended until notification is received
from the certifying State, agency, or Administrator, as the case may
be, that there is reasonable assurance that such facility or activity will
not violate the applicable provisions of section 1511, 1312, 1515, 1318,
or 1317 of this title,
(5) Any Federal license or permit with respect to which a certifica-
tion has been obtained under paragraph (1) of this subsection may be
suspended or revoked by the Federal agency issuing such license or
permit upon the entering of a judgment under this chapter that such
facility or activity has been operated in violation of the applicable pro-
visions of section 1311, 1312, 1313, 1316, or 1317 of this title,
(6) Except with respect to a permit issued under section 1342 of
this title, in any case where actual construction of a facility has been
lawfully commenced prior to April 3, 1970, no certification shall be re-
quired under this subsection for a license or permit issued after April
3, 1970, to operate such facility, except that any such license or permit
issued without certification shall terminate April 3, 1975, unless prior
to such termination date the person having such license or permit sub-
mits to the Federal agency which issued such license or permit a cer
tification and otherwise meets the requirements of this section,
Comptiance with ether provisions of lew ertiing
water quality requirements
(b) Nothing in this section shall be construed to limit the authority
of any department or agency pursuant to uny other provision of law
to require compliance with any applicable water quality requirements
The Administrator shall, upon the request of any Federal department
or agency, or State or interstate agency, or applicant, provide, for the
purpose of this section, any relevant information on applicable ef
214
Ch. 26 VOLLUTION PREVENTION 33 § 1341
fluent imitations, or other limitations, standards, reyulations, or re-
quirements, or water quality criteria, and shall, when requested by
any such department or agency or State or interstate agency, or appli-
cant, comment on any methods to comply with such limitations, stan-
darda, regulations, requirements, or criteria.
Auth re ery of Army te permit ene of spell dixpesat
erves by Kederat or perm
(ce) In order to implement the provisions of this section, the See-
retary of the Army, acting through the Chief of Engineers, is au-
thorized, if he deems it to be in the public interest, to permit the
use of spoil disposal areas under his jurisdiction by Federal licensees
or permittees, and to make an appropriate charge for such use. Mon-
eys received from such licensees or permittees shall be deposited in the
Treasury as miscellaneous receipts.
La aad ry oa * of 1n
(d) Any certification provided under this section shall set forth any
effluent limitations and other limitations, and monitoring require-
ments necessary to assure that any applicant for a Federal license or
permit will comply with any applicable effluent limitations and other
limitations, under section 1311 or 1312 of this title, standard of per-
formance under section 1316 of this title, o. prohibition, effluent
standard, or pretreatment standard under section 1317 of this title,
and with any other appropriate requirement of State law set forth in
such certification, and shall become a condition on any Federal license
or permit subject to the provisions of this section.
June 30, 1948, ¢. 758, Title IV, § 401, an added Oct. 18, 1972, Pub.L.
92-500, § 2, 86 Stat. 477, and amended Dec, 27, 1977, Pub.L. 95-217,
tf 61(b), 64, 91 Stat. 1598, 1599.
Misterteal Nete
Wil Amendment, Mubeee. (6), I'wb.l. pollmtante ead ether refuse matter late
“TIT added reference to section [212 of naviaahle waters af the United Mates oF
thie Hithe fe perm C1), 00, CO), od (5), thele tribeterten, eee Ka.Ord. No. 115T4,
“rek out par, (6) which had provided thee, 23 1970, 25 FM. METT, wet ont ano
that ne Pederel agency be deemed o0 ap sete wader sertion 407 of thie title
hie ent for the purposes ef this subeer
tes teatetative Mistery. Yor Wweleletive
—~p om revlewiqnated former par. (T) an Distery cad perpese of Mutat. t¢-2uu, ese
WTS UA Cote Come, aed Adm News, p.
Ndministration of Mefese Art Permit 3M Mew, alee, Malet. BO-TIT, ITT UUs.
Frearmm. Admiminttation of Hefuse Act Cute Comm, and Adu News, p 1m
Vermit Mrowrem te reewlete dimharae of
Library References
Naviteble Waters Coal. CIS. Navignhie Waters 111
Notes ef Decisions
\vilirwnts for rertifiention ¢ dariedictien @
| ouditions of vertifiration @ Leret laws 8
fonstruction with ether laws # Meview te
ee prewens 7 Mate standards
(11004 of cortifiention & Rebstemtial eidemes ©
215
A-87
16 § 661 PROTECTION OF WILDLIFE Ch. 5A
Sec.
668ff, San Francisco Bay National Wildlife Refuge; establishment
and designation,
668g. Same; description,
G68hh. Same; establishment of area; publication in Federal Regis-
ter; corrections in boundaries; maximum’ area; admin-
istration by Secretary.
G68ii. Same; acquisition by Secretary of lands and waters or inter-
ests thercin,
668jj. Same; authorization of appropriations,
GAME, FUR-BEARING ANIMALS AND FISH
§ 661. Declaration of purpose; cooperation of agencies;
surveys and investigations; donations
For the purpose of recognizing the vital contribution of our wildlife
resources to the Nation, the increasing public interest and significance
thereof due to expansion of our national economy and other factors,
and to provide that wildlife conservation shall receive equal consider-
ation and be coordinated with other features of water-resource devel-
opment programa through the effectual and harmonious planning, de-
velopment, maintenance, and coordination of wildlife conservation and
rehabilitation for the purposes of sections 661 to 66Gc of this title in
the United States, its Territorics and possessions, the Secretary of the
Interior is authorized (1) to provide adsistance to, and cooperute with,
Federal, State, and public or private agencies and organizations in the
development, protection, rearing, and stocking of all species of wild-
life, resources thereof, and their habitat, in controlling losses of the
same from disease or other causes, in minimizing damages from overa-
bundant species, in providing public shooting and fishing areas, in-
cluding easements across public lands for access thereto, and in carry-
ing out other measures necessary to effectuate the purposes of said
sections; (2) to make surveys and investigations of the wildlife of
the public domain, including lands and waters or interests therein ac-
quired or controlled by any agency of the United States; and (3) to
accept donations of land and contributions of funds in furtherance of
the purposes of said sections,
Mar. 10, 1934, ¢, 55, § 1, 48 Stat. 401; 1939 Reorg.Plan No, II, §
4(e), (f), eff, July 1, 1939, 4 FR. 2731, 53 Stat. 1433; Aug. 14, 1946,
¢. 965, GO Stat. 1080; Aug. 12, 1958, Pub.L. 85-624, § 2, 72 Stat. 563.
Misterteal Nete
1984 Amendment, Dub.L. 83-24 insert. and te equal consideration and coordina
@d provisions which relate te recoqnities twa ef wildlife conservation with vther
wf the vital contribution of wildlife re. water devel tou rame,
wrurews to the Nation, the lecressing and which authorise the Mewretary to
bullic wterest end siguificnace therwel, previde public fishing arenes, aud tu ac:
334
A-88
16 $661
ond measutes for (1) attesting deple
thet te ptedbaetive bedde, (2) festering to
presluetiva tade formerly productive,
OO) developing few areas, (1) tmprtoving
metheds of @ “. t vl . one
handing; and (5) otherwise incewestiog
predurtion and improving quetity for
henefit of both prod and ts,
and, authorized appropristion fur the
fiwe-year period beginaliag July 1, ten,
of $230.0w to carry out the studies of
the woflt-shell clam ead the sum of
PROTECTION
OF WILDLIFE Ch. 5A
Slaw te catty out the studies of the
hard shell clerm
Administration of Kefuee Act Permit
Veearem. Administration of Mefuse Act
permit program te tegulate discharge of
pollutants and other refuse matter inte
navigable weters of Uatted States of
theie tributaries, sce Kx.Ord No. 11574,
Dee. Ti, 1970, 35 FR, 10027, set out an @
mete under sevtion 40T of Tithe 33, Newt
gatiwa and Navigabie Waters.
Library References
rich Goa CIS. Fieh 1
Game 34%. C13. Game § 7.
Cede ef Federal Regulaticns
Nend ie lly exsieted programe, see 43 CR 17.1 et sey. and Ap
peadices.
§ 662. impounding, diverting, or controlling of waters—
Consultations between agencies
(a) Except as hereafter stated in subsection (h) of this section,
whenever the waters of any stream or other body of water are pro-
posed or authorized to be impounded, diverted, the channel deepened,
or the stream or other body of water otherwise controlled or modified
for any purpose whatever, including navigation and drainage, by any
department or agency of the United States, or by any public or private
agency under Federal permit or license, such department or agency
first shall consult with the United States Fish and Wildlife Service,
Department of the Interior, and with the head of the agency exercis-
ing administration over the wildlife resources of the particular State
wherein the impoundment, diversion, or other control facility is to be
constructed, with a view to the conservation of wildlife resources by
preventing loss of and damage to such resources as well as providing
for the development and improvement thereof in connection with such
water-resource development.
Ree ana
(b) In furtherance of such purposes, the reports and recommenda-
tions of the Secretary of the Interior on the wildlife aspects of such
projects, and any report of the herd of the State ayency exercising ad-
ministration over the wildlife reesvces of the State, based on surveys
and investigations conducted by the United States Fish and Wildlife
Service and such State agency for the purpose of determining the pos-
sible damage to wildlife resources and for the purpose of determining
means and measures that should be adopted to prevent the loss of or
damage to such wildlife resources, as well as to provide concurrently
for the development and improvement of such resources, shall be made
an integral part of any report prepared or submitted by any agency of
336
Ch. 5A GAME AND FISH 16 § 662
the Federal Government responsible for engincering surveys and con-
struction of such projects when such reports are preaented to the
Congress or to any agency or person having the authority or the pow-
er, by administrative action or otherwise, (1) to authorize the con-
struction of water-resource development projects or (2) to approve a
report on the modification or supplementation of plans for previously
authorized projects, to which sections 661 to 66fc of this title apply.
Recommendations of the Secretary of the Interior shall be as specific
as is practicable with respect to features recommended for wildlife
conservation and development, lands to be utilized or acquired for such
purposes, the results expected, and shal! describe the damage to wild-
life attributable to the project and the measures proposed for mitigat-
ing or compensating for these damages. The reporting officers in
project reports of the Federal agencies shall give full consideration to
the report and recommendations of the Secretary of the Interior and
to any report of the State agency on the wildlife aspects of such proj-
ects, and the project plan shall include such justifiable means and
measures for wildlife purposes as the reporting agency finds should be
adopted to obtain maximum overall project benefits.
Medification of projects: acquiatiion of lands
(c) Federal agencies authorized to construct or operate water-con-
trol projects are authorized to modify or add to the structures and op-
erations of such projects, the construction of which has not been sub-
stantially completed on the date of enactment of the Fish and Wildlife
Coordination Act, and to acquire lands in accordance with section 663
of this title, in order to accommodate the means and mvasures for
such conservation of wildlife resources as an integra! part of such
projects: Provided, That for projects authorized by a specific Act of
Congress before the date of enactment of the Fish and Wildlife Coor-
dination Act (1) such modification or land acquisition shall be com-
patible with the purposes for which the project was authorized; (2)
the cost of such modifications or land acquisition, as means and mea-
sures to prevent loss of and damage to wildlife resources to the extent
justifiable, shall be an integral part of the cost of such projects; and
(3) the cost of such modifications or land acquisition for the develop-
ment or improvement of wildlife resources may be included to the ex-
tent justifiable, and an appropriate share of the cost of any project
may be allocated for this purpose with a finding as to the part of such
allocated cost, if any, to be reimbursed by non-Federal interests.
reject costs
(d) The cost of planning for and the construction or installation
and maintenance of such means and measures adopted to carry out the
conservation purposes of this section shall! constitute an integral part
of the cost of such projects: Provided, That such cost attributable to
| the development and improvement of wildlife shall not extend beyond
| that necessary for (1) land acquisition, (2) facilities as specifically
1 WUSCA $6 e01-o1—22 337
16 § 662 PROTECTION OF WILDLIFE Ch. 5A
recommended in water resource project reports, (3) modification of
the project, and (4) modification of project operations, but shall not
include the operation of wildlife facilities.
Treaster of fuade
(e) In the case of construction by a Federal agency, that agency is
authorized to transfer to the United States Fish and Wildlife Service,
out of appropriations or other funds made available for investigations,
engineering, or construction, such funds as may be necessary to con-
duct all or part of the investigations required to carry out the pur-
poses of this section.
Eotimation of wildlife benefits o¢ tosore
(f) In addition to other requirements, there shall be included in
any report submitted to Congresa supporting a recommendation for
authorization of any new project for the control or use of water as de-
scribed herein (including any new division of such project or new sup-
plemental works on such project) an estimation of the wildlife bene-
fits or losses to be derived therefrom including benefits to be derived
from measures recommended specifically for the development and im-
provement of wildlife resources, the cost of providing wildlife benefits
(including the cost of additional facilities to be installed or lands to be
acquired specifically for that particular phase of wildlife conservation
relating to the development and improvement of wildlife), the part of
the cost of joint-use facilities allocated to wildlife, and the part of
such costs, if any, to be reimbursed by non-Federal interests.
Apolieebiiity te projects
(g) The provisions of this section shall be applicable with respect
to any project for the control or use of water as prescribed herein, or
any unit of such project authorized before or after the date of enact-
ment of the Fish and Wildlife Coordination Act for planning or con-
struction, but shall not be applicable to any project or unit thereof au-
thorized before the date of enactment of the Fish and Wildlife Coordi-
nation Act if the construction of the particular project or unit thereof
has been substantially completed. A project or unit thereof shall be
considered to be substantially completed when sixty percent or more of
the estimated construction cost has been obligated for expenditure.
- — ‘
(h) The provisions of sections 661 to 666c of this title shall not be
applicable to those projects for the impoundment of water where the
maximum surface area of such impoundments is less than ten acres,
nor to activities for or in connection with programs primarily for land
management and use carried out by Federal agencies with respect to
Federal lands under their jurisdiction.
Mar. 10, 1934, e. 55, § 2, 48 Stat, 401; 1949 Reorg.Plan No. II, §
4(e), (f), eff. July 1, 1939, 4 F.R. 2731, 53 Stat. 1433; Aug. 14, 1946,
338
Grout, Lakes Water Quality Aureement
, ¢ -
ol 1978
Agreement, with annexes
and terms of reference,
between the
United States of America and Canada
signed at Ottawa
November 22, 1978
& -
tae International Joint Commission ®.
alr ‘aren dey 2 . , . - ca ;
y rae Canada and the Uniled Slates % ‘s
A-93
GREAT LAKES WATER QUALITY ACREEMENT OF 1978
ARTICLE SUBJECT
iz
me
-—-——
eed
Te
I Definitions
Il Purpose
ltl Cencral Objectives
Iv Specific Objectives
Vv Standards. Other Rew
. Requirements, and &. -:
vi Programs and Other “Mews e
Vil Powers, Responsibilit
Functions of the IJ.
VIII Joint Inscitucions 4-
Ix Submission and Exch:
x Consultation and Re.
x1 Implementation
XII Existing Rights ana
KILI Amendment
XIV Entry Into Force ant .+
xv Supersession
~*~
~“
SUBJECT
Specific Objectives
Limited Use Zones
Control of Phosphc---
Discharges of Oil ane
Polluting Substan:« -
Review of Pollution fr -
Sources
Oredging
Discharges from Ons:
and Offshore Facil itic«
Joint Contingency Pili
Hazardous Polluting ~- > *
of @uN FU PWN
APPENDIX 1 - Hazardous Polluting ‘.
APPENDIX 2 = Potential Hazard. #
Substances
\
Persistent boxic Serbst on,
ros of Reterence tor the Joint institut
Great lakes Regional Obtice
A-94
Discharges of Vessel ».:~:«
Surveillance and Moniteerc:
<i tual office
nierstation
“.ens
ation
Fas
*
iens and the
i”
eK ly
a
Im
au ee
~
oe
“—— om om me me
ae he rerwtvton
bh
AGREEMEAT BETWEEN CANADA AND THE UNITED STATES OF Ane miKs
ON CREAT LARCE WATER QUALITY, 1978
The GCovernsent of Canada and the Covernnent of the
United Stetes of Arerica,
Maving in 1972 entered into an Agreerent on Creat Loses
Water Quality:
Reallicwing their determination to restore and enhance
water quality in the Creat Lakes System:
Continuing to be concerned about the irpeirrert of
water ouslity on each side of the boundery to an estent that is
causing injury to health and property on the other side, as
described by the International Joint Coraission;
Reaffirming their intent to prevent further pollution
of the Great Lakes Basin Ecosystem owing to continuing popuietion
growth, resource dGevelopeent and increasing use of weter:
Reaffirming in a spirit of (riendship and coocereticr
the cights and obligations of both countries under the Bourcary
Waters Treaty, signed on January 11, 1909, and in pacticuler
their obligation not to pollute boundary waters:
Continuing to recognize the rights of each country in
the use of its Great Lakes waters;
Having decided that the Creat Lakes Kater Quality
Aqreesent of April 15, 1972 and subsequent reports of tne
Tatecnational Joint Coeazission provide « sound besis for new an¢
more effective cooperative actions to restore ard erhance water
quality in the Great Lakes Sasin Ecosystea:
Recognizing thet restoration and enhancesent of the
boundary Weters can not be achieved independently of other parts
of the Creat Lakes Basin Ecosystem with Sich these waters
interact:
Concluding thet the best seans to preserve the ansatic
ecosystem and achieve improved water quality throughout the Creat
Lekes Systes is by sdopting common objectives, developing; a-é
seplenenting cooperative programs ant other aeasures, and
$SGigrIns,
special fesponsibilit.es am! functions to the
‘
Istecnatsora) Joint Cortassion:
(a)
(bo)
(ec)
(d)
te)
(f)
(9)
im)
(a)
(3)
Kave agreed as follows:
ApTICiF 1
DEFINITIONS
As used in this Agreerent:
*aAgrcenent® means the present Azreenmert ac
Gistinguished from tre Creat Laces aater Quality
Agreement cf April 15, 1972;
*Anncs® means any of the Arrenet to this Agreezent,
each of which 18 attached tc ers {757s an integral part
of this Agreement;
“Boundary waters of the Creat Lecer
*boundery watercs® reans tou
the Boundary Waters Treaty,
Lakes Systen;
vsver® or
r 7s, @& defined in
t ere within the Creat
“Boundary Waters Treaty® “ears the Treaty betweer tre
United States and Great Prite. Felatine to Boundary
Waters, and Questions Arisir s 2ereeen tre Unitec Staces
and Canada, signed at washinstor on Jatuscy 11, 1905;
"Compatible reculations® Fes + 7..8atsons no jess
restrictive tnan tre agreed sr.csiples set Out in tris
Agreere.t:
“Genera. Odjectives® are sr016 eG fcr.pt.ons cf water
Gua ¥ CONEILIONS co’.sirter . protection of
the bereficial uses enc rental
Gerlaty enact 226 Fart.es Cetsre 1c sec.ce ens whicr
wili provide overal] water wanazete*t G..cance;
“Great Lakes basin Ceosyste>* teerne the intecactings
cc7rerents Of e1f, seNC, warce anc ssVi59 Orgarsers,
inclué:ng man, within the drairace Cesin of tre Se.
wawsence River at Of wptirear {FOS the ZOIAe at oF.c7
thit caver tecomes the international Councery between
Ceraca and the United States:
"Great Lakes Systea” sears a1) of the streazs, rivers,
lakes and other bodies cl water that are within the
Crairase basin on the St. Leecence A.ver at OF ups*ireas
from the point at ehich this river Leccves the
international boundary tetween Caraeda and the United
States;
*Harelul Guantity® means ary quantity of a substance
that af discharged into ceceiving water woule
irconsistent with tne achievezent of the Genera: ans
Specific Osjectives;
“hazardous peliuting sucstance® means ens elerent o:
Compound igentified by the Parties snich, if Cischergeds
an any Guantity into cr upon receiving weters o-
ning shorelines, would present an imeinent anc
rtial danger to puslic healt! or welfare; for
th.S perpose, “public healtn or welface® encozpazres
al. factors affecting the health ant welfare of 22:
Tole. MG Set Ot Liaised to Ws S@4.0s., and thy
SIlG Set SN oPS BPC.@OTIO. SF 2e6T8 E55 Sdet0,
-- Fi eVeee Sle getT uve en doweae8 255 Bweds.es:
Feeeee
(hk)
aa)
(mn)
(o)
(p)
(q)
(r)
(s)
(s)
“Internationals Joint Cor-7ission® or “Cor-sacsion” rears
the International Joint Comission estarlirces ty tre
Boundary Waters Treaty;
*Fonitorine” means « scientifically desicned svste> of
continuing standardized reasurezents and observations
and the evaluation thereof;
*“Objectives® means the Ceneral Osjectivis adostea
Pursuant to Article III and the Spesific Odjectives
acopted psrsuant to Article IV of this Agreerent:
*Parties® means the Government of Canada ane the
Governzent of the United States of Aterica:
“Phosohorus® >ears the elertent phosphorus present as a
constituent of various organic ard inorganic complexes
and compounds;
“Research® weans developrent, deronstration . 4 other
fesearch activities but does not include monitoring ant
Surveillance of water or air quality:
“Science Advisory Board® means the Great Lakes Science
Acvisory Board of the International Joine Corrissics
estadlisted pursuant to Article Vill of tnis Agreevent;:
"Specific Objectives* wreans the concentration or
quantity of @ substance or level of effect trat tre
Parties agree, after investigation, to recocn.ze as a
faxicus or minitum desired lirit for as definec sody of
water of portion thereof, taking into account tne
beneficias uses or level of enavironzental quality snich
the Parties desire to secure and protect:
“State and Provircial Covernzents* reans tne
Governments of the States of Illinois, Indiana,
Michigan, Minnesota, New York, On10, Wisconsin arc tre
Commonwealth of Pennsylvania, and the Covecnrent of tre
Province of Ontario;
“Surveillance® peans specific observations and
Beassrements relative to contro] or garnagerent;
“Terms of Reference” means the Terns of Refererce for
the Joint Institutions and the Creat Laces Regiona!
Office estadlished pursuant to this Agreement, which
are attached to and form an integral part of this
Agreement:
“Tonic substance” means @ substance which can cause
death, disease, behavioural abnorralties, cancer,
genetic eutations, physiological or reproductive
malfunctions or physical deforeities in any ornanisz or
its offspring, or wnich can becote poisonous after
concentration in the food chain or in combination with
other substances;
*Tributery waters of the Great Lakes Systen* or
“tributary waters® means all the waters within the
Great Lakes System inat are not boundary waters;
“Water Quality Board® means the Creat Lakes water
Qvality Boerd of the International Joint Cozaission
estadlished pursuant to Acticle VII! of this Acreerert.
turccose of the Parties 18 {0 restore a@7-c Fairia.e
et. ct.. Diyeieal, and droloesca) inteority of tne waters of
ott tases Erran Teosyster. In order to eshieve this
t 2 "ties acree to rake @ waxigum effort to develoo
oot ard techrology necessary for a hetter
the Great Lakes Basin Ecosystem ané to eliminate
rexic lx extent practicadle the discharce of
sce Great Lakes Systen.
t.ttent with the provisions of this Agreerent, it 18
tre & ~ sf the Parties thats
s T . d:zeriree Of toxic setstances in tonic ceosnts ve
“s+ ,Date> end the discharce of any or all persiszert
*cwle sursterces be virtually eliminated;
-s.rent works be provided by @ combination of loc
ttat-, provincaal, ané federal particisation; anc
te Crordinates plennine processes am bes: zanaceren:
Fractices te ¢eveloned and isolerentec dv the
respect: ve jurisdictions to ensure adequate contro: of
¢.. Scsrres of poliutents.
ARTICLE 111
GENEPAL OBJECTIVES
T’« 2srties adope the follow:ne Genera: Objectives fcr
tre Great Lenes System. These waters should ce:
(a, free frc™ substances that directly of indirectly e*cer
the eaters ef @ result of huren activity and thet 2.2)
Settle to fers outrescent or ctherwise objectionasile
Sludee deoosits, of that will) adversely affect equatic
life of waterfowl];
(t! Free Crom floating materials such as debris, oi), scuz,
a2 other immiscible substances resulting frow huran
actavities am arounts that ace unsightly oc
Gelvtericus;
ic) Free froz materials ard heat directly or indirectly
entering the water as a cesult of human ectivity that
alone, OF IM COaLination with other materials, will
produce colour, odour, taste, or other conditions in
Such @ dearee as to interfere with beneficial uses;
(6) Free {roa raterials av! neat directly of indirectly
erterina the seater as a result of human activity that
slone, or in combination with other gaterials, will
’ Prcduce conditions that are toxic or harefu) tc huran,
animal, or aquatic lifes; and
(e) Free from nutrients directly o¢ indirectly entering the
waters as a result of human activity in arounts that
Create growths of aquatic life that interfere with
bereficial ces.
The
AFTICLE 3
a
SPECIFIC OBJECTIVES
Parties edoot the Specific Oniectives for tre
boundary waters of the Great Lakes System as set forth in teres
subject to the following:
i,
3
(db)
te)
(¢)
(f)
(a)
(bd)
The Specific Cdjectives sedooted pursuant to this
Article cepresent the winimur levels of water o.3..%
desired in the Boundary waters of the Great Lake:
Svstce and ere not intended to preciuce whe
establishment of pore sicingent requirescnts.
The deterzination of the echieveren: of Scecific
Oojectives shall be based on statiaticaliy valic
sampling data.
Kotwithstanding the adootion of Scecific Onject. ver,
@ll reasonable and practicable ceasures shall te tare
to maintain oc iwprove the existing water cuoality in
those areas of the boundary waters of the Creat Laves
System where such water quality is Letter than treat
prescribed by the Specific Objectives, end in tose
aceas having outstanding natural resource value.
The responsible regulatory agencies shall mot core. ‘er
flow augzentation a8 @ Substitute fcr steouate
treatment to meet the Soecific Odjectiver.
The Parties recoanize that in certain eress Of oper ice
waters natural phenomena exist which, Cesrite tr t%
efforts of the Parties, will prevent the acrhieve-
some of the Specific Oniectives. As early a8 Gotcicic,
these areas sould be identified exolicitly bv te
aopropriate jurisdictions ant reported co the
International] Joint Commission.
Limited use tones in the wicirity of present a°4 f..-5e
wpunicipel, industriel and tricutacy point source
discharges shall be desicrated by the resson
reaulatocy agencies within wrich sorte of the Sceciiic
OCtjectives may not acply. Cstarlishwer: of these pores
shall not be considered a sudttitute for atecwate
treatment oc contro) of discharges at their tc.
The size shall be rinisized to the creas:ert pose
degree, being no leraer than that attairatie t, a).
reasorable anc practicatie effivent treatrert
Peasures. The boundary of @ limited use zore f%4.. ro.
transect the international Boundary. Frircidies fst
tne designation of litited ute stones are set o.t if
Annes 2.
Tne Specific Odjectives for the boundary watere cf tre
Creat Lakes System or for particular portions thereof thail .4
kept under review by the Parties and by the Interratioral Joint
Comrission, which stall] make sozroeriate recosrendatiors.
The Parties shell conselt on:
The
establishment of Specific Obtectives t> protect
beneficial uses from tne coz>ines effecis of
pollutants; and
The centro] of pollutest loading teres for ear lane
Dasin to protect the sategrity cf tne ecosystes Ker
the
sons tere.
Apticurv (vi) CocuOdasnwent of effective enforcerert crogre ft to
ensure that the above pollution abaterent
STANDARDS OTHER REGULATORY REQUIRENERTS, AND RESEARCH requirements are fully met.
} water quality standards and other reculetory (b)
eccarrerents of the Parties shall be consistent with the
e-*severent of the General and Specific Odjectives. The Parties
ceo) use thetic best efforts to ensure that water quality
siacderds and other requlatory requirements of the State arc soon as practicable and in any case no later than
Prov pcial Governments shall similarly te consistent with the December }), 1983, and shall include:
acc severent of these Objectives. Plow aug~entation shall ret de
-ossidere4d a8 @ Sudstitute for adequate treatment to Pert water (i)
s.ality standards or other regulatory reouirerents.
Pollution from Industrial Sources. Procrass for we
apatement, control and prevention of pollution {rs
industcial sources entering the Great Laker Syste.
These prograts shall be completed amd in operasion O68
Cetablishceat of waste treatrent of control
requirements expressed as effivent Jiwitetiors
The Parties shall use their test efforts to ensure
(a) The principal research funding agencies in both
countries orient the research orogrars of their
organizations in response to research priocities
identified? by the Science Advisory Board and
recomrended by the Commission; and
(concentrations and/or loading limits for trecifac
pollutants where possible) for o)) inésstrial
plants, including power generatine fecilitics, to
provide levels of treatzent or reduction or
elimination of inouts of substances anid effects
consistent with the achieverent of the Gescra. ac?
Specific Objectives and other contro,
requirements, taking into account the effects of
waste from other sources;
(bo) Mechanisms be developed for avpropriate cost-effective ° ® ‘
(4) Requirements for the substantial elirination of
internationsl cooperation. discharges into the Great Lakes Syste of
ARTICL. VI persistent toxic substances;
PROGRAMS AXD OTHER MEASURES (aiid julakaeeeae” for the control of therza)
The Parties shall continue to develop ant ixsieren: 5 * ‘ sett
-tsorers and other meosures te fulfil the purpose ef t>is (iv) Measures to control tne discherce Of facicwct.ve
freemen
resent
activ
s** peas
(a)
t and to weet the General and Specific Odjectives. rere
treatztent 18 inadequate to meet the Genera: arc Soecific
es, at4itional treatment shall be required. The progra s
veces shall include the following:
Pollutios from Muricinal Sources. Prograva for tre
araterert, Contcol ans prevention of munic:cal
discharges and ursan drainace into the Great Lares
System. These procrars shail be completed ard ir
Operation a8 soon a8 oracticable, and in tre case of
municipal sewace treatrent facilities no later tnan
Decerber 31, 1982. These crograts shall incisde:
.
paterials into the Great Lares Syster:
(v) Requirements to minimize adverse envirorctenta:
iepacts of water inteces;
(vi) Development and izplenentation cf orocrats %: rec:
industrial pre-treatrent recuirezents «8 specs fs.es
under sub-paragraph (a) (iv) above; and
(vii) Eetadlishment of effective enforcerent crocrams to
ensure the adove pollution abdaterent reguirervenct
ace fully met.
1 Pollution Ataterent Poo.: res **
(i) Construction end cperation of waste treetrer: aes popentors ot TOWRA ONCG A Se ao
facilities in all muricicalities having sewer requirements for a)] eunicipa: and industeciel
Systems to provide levels of treatment consister: facilities discharging into the Great Lakes Sysse> 5”
with the achieverent of phosphorus requirerents order to gavoe progress toward the earliert practices.
and the General and Specific Cbjectives, takings completion and operation ef the proarans Sisted in
into account the effects of waste from orher sub-paragraphs (a) and (b) adove. This irvertory,
sources; prepared and revised annually, shall incisde compliarce
schedules and status of compliance with miniter.c3 act
(aa) Provision of financial resources to enssre prompt e{fluent restrictions, and onats te wade avaiias e to
construction of needed facilities: o thelInternational Joint Commission ané to the p.clic.
(iid) Establishment of requirements for construction and Dae ane Sa = ech
operating standards for facilities; identifies by the fuler Gasbhte Board. ee ‘
Establish Hf od
tay) stop ishaeet © fo eagennee sequcennnate for (d) futrephication, Prograas and measures fo: tne
ons ety guaed trosaeen works wees euch SOSuEtIOA OAS Consses Of inputs Of phoenereee fiance.
industrial wastes are not asenatle to adeouate ee alae in eovesdense with whe provisions of Anaee
treatzent or rezoval using conventional municipe) ,
treatrent processes; te)
es:
(v) Development ard izplerentation of prac::
- , a
aunpmmpnmnm Gam anhrntagn aaatGantae Bas
Pollution aA rievlturay: forestry 9°: 22°27 _-a°e
fe Ast ~ Measures (Of the adaterert ars fant
of setter on rox ef 3
agricultural, forestry ard cs.
A-100
TOT-W
(
(f)
(1) Measures for the control of pest control products
used in the Creat Lakes Basin to ensure that pest
control products likely to nave long-tera
deleterious effects cn the cuslity of water or
its Diota be used oniy as authorized by the
resoonsible reouletory scercies; that inventories
of pest contro] oroducts used in the Great Lakes
Basin be establishec an’ ~aintained by appropriate
agencies: and that research and educational
programs be strenothened to facilitate integration
of cultural, biological an¢ chemical pest contro)
techniques:
(ii) Measures for the abatement and control of
Dollution from anime, S.tlertry operations,
including encouracetent t2 speropriate agencies to
adopt policies ané resclat:ons resardine
utilization of anival sctras, and Bite selection
and G@isposa) of liquid i-¢ eclid wastes, and to
Strengthen educetiona. a-4 technical assistance
programs to enable far. rs ts estadlisnh waste
utilization, handling ar? disposal systers;
(iti) Measures governing the ha-.ine and dissosal of
liquld and solid wastes, including encouragerert
to eppropriate regulatory acencies to ensure
proper location, desier, and regulation governing
land éisposal, and to ensure sufficient,
adequately trained tecrrical and administrative
capability to review olirs and to supervise and
monitor systems for a>p.ication of wastes on land:
(iv) Measures to review and s.cervise road salting
Practices and salt stcract to ensure optirunm use
of salt and all-weather protection of salt sicres
in consideration of lonc-term environrertal
impact;
(v) Measures to control soi] Josses from urban and
suburban a6 wel) as cura) areas;
(vi) Measures to encourage and facilitate irproverents
in land use planning and ranagerent prozgrazs to
take account of impacts on Great Lakes water
quality:
(vil) Other a¢visory proarass ard reassures to abate and
control inputs of mutriernts, tonic substances and
sediments from agricultural, forestry and other
land use activities; and
vili) Consideration of future recomendations from the
Internationa) Joint Coma.tsion based on the
Pollution from Land Use Activities Reference.
Pollution from Shippin= Activitier. Meassres for the
abaterent and control of pollution from shipping
sources, including:
(i) Prograzs and compatible regulations to prevent
Gischarcges of Rarzful quantities of o1] and
hatardous polluting substances, in accordance with
Annea 4;
(9)
(nm)
(4)
(})
(m)
a)
(4441) 6Buch comoatidle reeulations to abite and corire!
pollution from shioding sources as rav be feerac
desirable in the light of continuing reviews o*¢
studies to be undertaken in accordance with Anves
6;
(iv) Programs and any necessary comoatible regulations
in accordance with Anneses @ ané $, for the safe
an¢ efficiert handiing of sh. oboard ceverates
wastes, includine ofl], Raterdous polluting
Sudetences, Gardage, waste water ant bewace, act
for their ssbsequent ¢iss08e;, including tre t) de
and quantity of reception facilities and, af
applicable, treatment standards; and
(v) Estadlishment Sy the Canadian Coast Cuard ard tte
United States Coast Guard of @ courdirated syater
for aerial and surface surveillance for the
Purpose of enforcement of regulations and the
early identification, abdaterent and clean-up of
spills of o1l, hazardous polluting subdstences, or
other pollution.
Pollution from Sregeine Activities. Yeasures fer tre
acatenent anc control of poisution from ai) crecerne
activities, including the developmen: cf er.teria for
the identification of polluted sedirents a6 covtat.sle
prograzs for ¢issosel of polluted sredyged raterias, in
accordance with Annex 7. Pending the developnent of
compatible criteria and prograns, dredging operations
shall be conducted in a eanner that will @einiaize
adverse effects om the environgent.
Pollution from Onshore and Offshore Facilities,
Measures for the atatesent and control cl poiiition
from onshore and offshore facilities, including
Prograss and compatible regulations fcr the srevertior
of discharges of hareful quantities of 01) and
hazardous polluting substances, in accordance with
Annes 8.
Contineency Plan Maintenarce of a Joint cortingency
pian for use in the event of a discharae or the
imminent threat of a discharce of oi] of hatardous
Polluting substances, in accordance with Annes $.
Irplerentation of
ng ws polluting substances.
The Parties stall further consult from time to time for
the a of revising the list of hatardous pollutina
Substances and of identifying hareful quantities of
these substances.
Persistent Tosic Substances. Measures for the contro)
anmputs of persistent tonic substances including
contro] progress for their production, vse,
Gistridution and disposal, in accordance with Annes
Airborne Pollutants. Programs to identify pollutant
sources « Telative source contributions, including
the more accurate definition of wet and dry depesition
Tates, for those substances which may Mave significant
adverse effects on environmental Guality including tne
ee he ene iam eae
indirect effects of impairecnt of tributery water
quality through atmospheric deposition in drainage
basins. In cases where siorificant contridutions to
Great Lakes pollution from atrosoheric sources are
identified, the Parties saree to ecnsult on approsriate
reredial progress,
(we) Surveillarce and Monitocire. Inplemestatics of 4
COOTeINaLeO Burvellsance ars sOriterine Srozrenr in tne
Creat Laces System, in accordance with Annes 1), to
assess compliance with po:lutior cor.rol reasirezents
and achievement of the Objectives, to provide
information for measuring loca) and woole lake resoonse
to control zeasures, and to iderstafy erterging
prod.ets.
2. tne Parties shabl develop end ite.erest bee
proerers a8 they jointly decide are necestity ane Crs
fulfil the purpose of this Agreerent and ts reer te Ve as ane
Specific Objectives.
APTICLE Vil
POWERS, PLSPONSIBILITICS AND FUNCTIONS OF THE INTLANATIONAL JOINT
COmm ISS TON
). The International Joint Comsiesion small assist in the
jedlementation of this Agreement. Accoré:ngiy, the Comtiesion is
hereby given, ty @ Reference pursuant to Article IN ef the
Boundary Waters Treaty, the following responsidslities:
(a) Collation, analysia and dissemination of oate and
information supplied by the Parties anc State and
Provincial Governments relatiny to t*¢ quality of the
boundary waters of the Great Laces System acs to
pollution thet enters the Bountery saters froa
\ridutary waters and other sources;
(bo Collection, analysis and cisserination of data and
information concerning the Careral ant Scesific
Objectives and the operation and effectiveness of tre
progress and other peasures established pursuant to
this Agreement:
(¢) Tendering of advice and recomendations to the Parties
and to the State and Provincial Governrents on protiess
of and matters related to the quality of the boundary
waters of the Great Lakes System inciuding specific
recommendations concerning the General anc Specific
Objectives, legislations standards ard other regulatory
requirements, orogrems and other reasures, and
intergovernmental agreements relating to the quality of
these waters)
(4) Tendering of advice and recomzendations to tne Parties
in connection with matters covered under tne Anneres to
this Agreement:
(e) Provision of assistance in the coordination ef the
JOINE sctivities envisaged by this Agreerent)
(ft) Provision of assistence in and advice or ratters
related to research in the Great Lakes Basin Coosyste®,
including identification of objectives for research
activities, tendering of advice and recommendations
concerning research to the Parties and to the State and
Provincial Governments, anc 4) sination of
information concerning retearct to interested persons
(9) Investigations of such subjects related to the Greet
Lekes Basin Coosystes as the Parties way (rom tite to
time refer to it.
>. In the discharge of its responsibilities under thes
Reference, the Coerission say exercise al. of the powers
conferred upon it by the Boundary Waters Treaty asc Dy any
legislation passed pursuant thereto including the power co
conduct public hearings and to cospel the testizony of wittesses
and the production of documents.
i. Tre Commission shes) make @ full report to the Pert.es8
and to the State and Provincial Governrents ro jess frequently
than biennially concerning progress toward the achieverent of
General and Specific Odsectives including, a8 aodropriate,
gatters related to Annexes to this Agreement. Tris Tepor has
include an assessnent of the effectiveness of the orograns asd
other scasures undertaken pursuant to this Agreerers, anc aivice
and recommendations. In alternate years the Corzission Fa
eubait @ summary report. Tne Commission way at any tite race
special reports to the Parties, to the State and Provinces
Governpents and to the public concerning any problem of water
quality in the Great Lakes Systes.
tre
4. The Commission may in its discretion pudiisn eny
report, statement of other cocurent prepares by it in tne
discharge of ite functions under this Relerence.
s. Tne Comaiasion shall have autsority to ver.ty
independently the date and ovner infortetion ssaritsec cy te
Parties and by the State and Provincia, Goverttents CArOug) Bee"
tests or other means a8 appear approoriate to it, consiscers wats
the Boundary Waters Treaty and with applicaodle iegislassor.
‘. The Comminsion shall carry owt its rescorsioilities
onder this Reference utilizing principally the services of tne
Water Quality Board and the Science Advisory Board ested. .sned
under Article VIII of this Aareesent. The Corti ssion shall a.ee
ensure liaison and coordination between the ingtitucions
established under this Agreenent and other institutions which cay
address concerns celevant to the Great Lakes Basin foosystes,
including both those within its purview, such a8 Coote Boards
related to Great Lakes levels and air pollution watters, ant
other international bodies, a8 appropriate.
ARTICLE Vill
JOINT INSTITUTIONS AND AEGIONAL OFrice
A-102
i. To aseiat the International Joint Commission in tre
exercise of the powers and responsibilities assigned to it wader
this Agreement) there shall be two Boards:
(a) A Great Lakes Water Quality Board which shall te the
peincipal advisor to the Commission. Tre Board srall
be composed of an equal number of wenhers {row Carnate
and the United States, including representatives (ror
the Parties and each of the State and Provincia:
Governments; and
(dD) A Great Lakes Science Advisory Boaro ehich shall
provide advice on research to the Commission ant to tre
Water Quality Board, The Board shall fuctner provide
advice on scientific matters referred to at by the
Coatission, or by the Water Qvality Board an
Consultation with tne Comission, Tae Fosense Asvirnty
Best Copy Avaitauwe
£0t-Vv
Board anal) consist of waragere of Creat Lakes reserrer
crograss and recocnited merts on Great Lakes water
quality probdless and relates fields,
2. Tre mesters of the Water Quality Beard and the Sc.ence
Advitory Board shall te atpointed ty tre Corsission after
Consultation with the aprrepriate Covernncnt OF governrents
conccrned. The functions of the Boerds trail be as specifies in
the Terts of Reference acperdeds to this Acrecrent.
). To provide adtiristcative tuoport and tecnnical
apsistance to the twe Beards, and te provide @ pudlic infortaetics
service for the preerars, arcludirg public hearings, wodertaren
ty the Interrationas Joint Comiesion and ov the Boards, there
shali be a Creat Lanes fegionsl Office of the International Joins
Cort ission. Soecific detier and orzanitation of the Office sr
be os soecified in the Terms of Reference apsensed to this
Agreerent.
4. Tre Com*ineion shall subtit ar annual dudget of
anticipated experses te se incurred in carrying Out its
responsibilities under this Agreement to the Parties for
approval. Cach Party #ha)l seek funds to pay one-half of the
annual budaet sc approves, But neither Party shall te under an
Slination to pay @ larcer arount then the other towere this
Di taer.
ARTICLE 2h
SUBMISSION AND EXCHANGE CF INFORMATION
i. The Internationals Joint Cormission eral) te given at
its request any data of otter information relating to vater
quality in the Great Laces Syste in accordance with procedures
estadlisnhed by the Comission.
2. Tre Covwission shall cake available to the Parties and
to the State and Provincial Governments upon request a)) Gate or
other information furnished to it in accordance with this
Article,
. Lach Party shall make availadle to the other at its
request any data or other information in its control relating to
water Quality in the Great Lakes System.
4. Notwithstanding any other provision of this Aareerent,
the Commission chal) mot release without the consent of the owner
any information identified as proprietary inforration under the
law of the place where such information has been acquired.
ARTICLE &
CONSULTATION AND REVIEW
1. Following the receipt of each report submitted to the
Parties by the International Joint Cotsission in accordance with
paragraph J of Article VII of this Agreement, the Parties tha})
consult on the recommendations conteined in such report and nai)
consider such action a8 Bay be appropriate, including:
(a) Tre modification of existing Chjectives and tre
adoption of new Objectives;
(ce) The erendtent of this Agceement of any Annes thereso.
Auditionel consul’? ray be held at the request of cither
Party of any @atier «fit. 8p O48 of the ispletentation of this
Aateerent.
2. wen a. cevores aware Of @ special Bollation
proties trot 16 ki ",*t @oecorn e*t4 cegaires an aetesiate
feaporse, it oe art consult the other Party forthw.t®
arout appropriate teres.a) ection,
). . Troe Parti o* ot ahd conédset @ cormprere*tive view of the
operation and afirt’ .#teve of Chis Agreesest (olicesrg tre th. te
tiesnie. rere. t * ** $9108 Fequires urder Article vit ef
this Agreetert.
APTICLE xo
LY PLEMENTATION
i. fae 6°... setertamen an thas Asrectert sha.. te
Sudject tc the se’ oh Of Conds in accercance w.t? se
Conmstitutsoras f° sc ef tpe Parties.
2. Tne Parst.e¢ “Zit thesselves to seek
(eo) Tre @ * s* of ene funds foasired te .*p.e7e"s
heb vdane %*%, aMeSUGING bre Curse reeces 65 Gris. °%
end itt. te") the prograts and other Peatetcs prov.ces
for it Att.cre Vi Of Chae Agreerent, ard tre forsk
regu.fes ¢. tte Trternetional Joint Comrissicn to cere;
Out its rersoreidalities effectivery:
(db) The etacttent of any edfitional iegisietion tras ra’ oe
necessary .* order to impletent the prograss are o1ret
reasures provided for in Acticle VI of this Agreerens:
and
(ce) The Cooperation ef the State and Provincial Governrwrts
in @)) matters relating, tO this Ajreerent.
APTICLUL XI
CALSTING RICHTS ALD OBLIGATIONS
Nothing im this Agreesent ahall be deered to eirin.in
the rights and Obligations of the Partiew as set forth am the
Boundary Waters Treaty.
ASCL OF eit
). This Acreoment, the Annenes, ard she Terts of beletetce
tay Le avended by ag ment of the Parties. Taw Annearé Far aise
te arerdes a8 provid therein, subjecs to the reg.irerent trast
Buch ome hail be within the sete of thie Aareazent. Als
sucn amvnémnts the Anneses ohai) Ge cunfirset Dy ef @ncha pe
cf notes or letters between the Farties thrower Oipicratic
epeueeeia wie £2 2. Z chive Gate of Catcs of &.¢°
? All ererdments to URIS Aureerent, the Anneves, and the
“erss of Beference shall be corrunt ated peorptiy to tre
tncecnatioral Joint Cosrissien
ABTICLE RIV
CKTRY INTO FORCE AND TCM INATION
Thie Agreement shell enter into force upon siqneture by
the Caly esthorired representatives of the Parties, and shall
rereir in force for @ period of five years and therealter wath)
tertinated upon twelve months’ notice given in writing dy One of
the Parties to the other,
ARTICLE HY
SUPCRSCSSION
This Aqreenent supersedes the Great Lakes Water Ovelity
Aereerent of April 15, 1972, and shell be referred to a6 the
“Great Lakes Water Quality Agreement of ever.
1M WITHESS WHEREOF Une wrdersiqned copeoeenvacives,
agvly evthortsed by thele cespective Covernsents, have signed thie
Agreement.
COME ta duplicate et Ottews im the Englien and French
janqueges, Loth vecstone belong equally euthentio, Wie 2a
dey et Davserdee 1978.
Ch FOL OC QUOT, lee representantes eosesiqntes, avant
authoriads par leve Gouvernement ceapectif, ont siqnt le présent
Accord.
PAIT en dowhle exempleire & Ortawa -» frangere ef en
ame
anglais, chaque version Caisant également fo) - 22
jowr @« nevecn i. aeve,
Bibs. are Or
for the CovesAment of Canede
Pour le Go. ecnerent @u Carade
LIV WAG
for Ge Government of ihe
Unit Bear of Averica
Pour le Gov rement Ger
(THIS PAGE [INTENTIONALLY LEFT BLANA]
Ssot-W
ayeex)
SPECIFIC OPIECTI VES
These Odsectives ere Bese’ on available .nfortesscs on
cause ‘effect reletionstiips between poliviarts and reca;tors ts
protect the recegnized mast sensitive ace in cht weitere. Tress
Criectives way be arvended, OF new Odiceti. ~ ray be adtec, sy
tutwel consent of the Parties.
Pecsirtent Tonic Substances
Organic
(a) Pesticides
Alérin’/Sieidsis
The sot of ine conce’*: isms Cf sierar ane
@selécin in water #rs- ntt excees 5.02:
microgras par litre. Te cs7 Of Soncentfaticr.
of elérin and dieid:.* «+ the e@itle portics cf
fish should not ences! ©.) microgrart per crear
(wet weight Besia) foi the protection Of Fute™
contueers of (isn.
Chiersene
The concentration ef f*lcrtene sm water £0.52
net encwed 6.06 fics -jre" per litre for the
protection of aquatic iife.
EDT end Ressrolites
The sus of the concesirssions of SOT ané .t8
metebolites in weter o:04)4 not eaceee ©.053
sicrogrem per litre. Tre sur of the
concentrations of OST and its Getedo.ites ir
whole fish should not exceed 1.8 ricrograr “<r
7 (wet weight tetris) for the protection of
Ash-consuming squatic birds. ;
Endrin
The emacentretion of endrin in weter should no.
exceed? 6.002 aicrogram per litre.
fen of endcia in the efible portioer «f
concent rat
fiah shewléd aot exceed 6.3 sicroeren per gre”
(wet weight testis) for the protection of fener
We exp Of che cunseanccsions of papsecntes ond
e : lieee. te ot ee
Sept chine ena Nerkectloe
fasved cSeuceapren pee gree fos coege ug
Lindene
The concentration of lindgene in water should no”
exceed 0.01 microgram per litre for the
protection of squatic life. The concentration
of lindane it edible portions ef fies snou.d net
exceed 0.) wicrog-at per eret (wet weignt satis)
for the frotection of hutan consssecs of f.ah.
Meshouye*.jor
The concentration of methonyehior in water
should not exceed 0.04 cicrooras per litre for
the protection of squatic life.
Mires
for the protection of scuatic orgeniazs eat
fieh-consuzing dards and animals, #ires and sts
Gegradation products snouid be eudstantially
adsent from water on¢ aauatic organiers.
Sustertieally ebsent here ceans less thar
detection levels os deterained by the oest
scientific wethodology aveilacie.
Tonestene
Tre concentration of tosnphene in water should
not «aceed 0.008 og rag 4 per litre for the
protection of equatic life.
Other Compounds
vualic Aeté terers
esters should not exceed 0.2 sicvogres per litre
in waters for the protection of equatic sife.
Inorg.nic
(a) Metals
Arsenic
The concentrations of total arsenic in an
unfiltered water sample should mot caceed $9
Picrograzs pec litre to protect fas w
public water supplies.
Cotm iu
The erncentration of total cacriu® In an
unfilteced water sarole should not exceed 6.2
Ricrotram per litre to protect axsatic iife,
Cerce iem
Tre coreettretion of tote) chromiv® if an
unfiltered eater sarrle should rot excced $2
Picroerams per litre to protect raw eaters for
public water suaplies.
Cr.pa. ¢
Tre concentration of totel conser if 4”
enfilteret water sample should not eaceec
microsravs per litre to protect aquatic 3
‘
$
ife,
Jeon
Tne concentration of total iron in an wrtiltered
water Ratple should rot exceed 300 microoress
per litre to protect seuatic life.
Lea?
Tre corcertrat.on of Gatel lead in on ottsl teres
water sappie should ame exceed 10 micrccra™s per
litre an Lake Superior, 260 micrograts per -..
in Lake Murcer and 2% wicrogranms per litre .°
revaining Great Laces to protect aguatic isle.
*ercury
The concentrazion of total mercury in @ filtered
water sawole cncould mot exceed 6.2 microgrit por
Litre nor should the concentration of tote.
mercury in whole fisn eacces 0.5% Ficrogcrem mr
gran (wet weight basis! to protect accatic wile
and fish-conssuring birds.
x e
The concentration of total nickel in an
unfiltered water saeple should mot cucwed 25
vicrograes per litre to protect aquatic life.
Selenius
The concentration of total selenium in an
unfiltered water sample should not escee? 1%
micrograms per litce to protect raw water for
public water supplies.
Zine
The concentration of total) rine in am unfiltreres
water sample should not exceed 30 wicrogra*s per
litre to protect aquatic life.
A-106
LOot-W
(b) Other Inorganic Substances
Piverice
Tre concentration of total fiverice in ar
entiltereé water sample showsé mot erceet 42--
cicrogress per litte te protect rew water for
public water suppiies.
Tess) Dissolved Soli¢s
In Lake Erie, Lake Ontario and the internetic
Section of the St. Lawrence River, the ie:
totel éisselved solids should not exceed ->°
ritliqrazs per litre, In the St. Clhaic Fiver,
Lane St. Clair, the Detroit River and the
Kiegare River, the level should be conti ster
with meinteini the levels of totel disscive-
e0lids in Lake Erie end cake Ontario at net ts
exceed 200 milligrams per litre. in tre
resaining boundary waters, penéin further
pen, the level of tote] dissolved solide
should not exceed present levels.
B. Kon-Persistent Tosic Sudssences
Orgenic Substances
(a) Pesticides
Dissinen
The concentration of éiezinon in an wifiltcres
water sample should not exceed 0.08 ateregser
per litre for the protection of aquatic }
Garnien
The concentration of quthion in an unfiiteret
water sazple shovléd not exceed 0.005 sicrocren
per litce for the protection of aquatic lite.
Perernion
The concentration of parathion in an unfiltered
water sample showlé not exceed 0.008 gecgegees
per litre for the protection of savatic iife.
Qrher Pesticides
The concentration of unspecified, non-persiscent
sticiées should not exceed 0.65 of the redian
thel concentration on @ $6-hour test for any
sensitive locel species.
{b) Other Substances
Unspecified tonic substences and
coaples effivents of sunicipal, industrial or
O01) ond petrochesicals should now te present .%
concentrations thatt
th) can be erected a6 visldle tiie, sheen or
discolouration on the surface;
(14) can be detected by odour:
(444) Can couse tainting of edidle aquatic
organisms; and
tiv) can form deposits on shorelines and bottom
sediments that ere detectable by sight or
odour, Of are Geleterioss to resident
aquatic orgenisas.
2. Inergenic Substances
Agponis
The concentration of un-ionized ammonia (*> 5)
devld not @ 20 micrograts per litre for
the protection of aquatic life. Concentrations
of totel azmonis should not exceed 505
micrograms per litre for the protection of
public water supplies.
Rrdrosen Sulfite
The concentration of undissociated hysroger
sulfide should not exceed 2.0 microgrets per
litre to protect equetic life.
C. Other Sebstences
Dissolved oxygen
In the connecting channels and in the upper waters of
the Lekes, the dissolved onyger level should not te less
then 6.0 silligress per litre at any tine: in
hypolimnetic waters, it showld be not less than
necessary foc the support of fishlife, particuleriy
colé water species.
pa
Valves of showld not be outside the cange of 6.5 to
9.0, nor 1@ discharge change the pl at the houndary
of @ limited use sone sore then ©.5 enits from that of
the eablent weters.
‘nosphorus
The concentration should be limited to the
saaees weene.o shives thet are oc be sore
pr od Bo to beneficial water Bis
(Specilie contro) ere
set out in 3) :
ot : Tete, he > My
ele: ,
ee TE ety
AD
oo aie
Soi" y
se aS
pa
NN
i.
(db) Levels of ehenolic corpounds should not exceed
1.6 wicrogeam pee bitre in purLiC water s.po.ie8
to protect against taste aw oton in dorestic
water.
(oe) S.dstances entering the water 3° t°* secest ef
hugan activity cnet ¢e.** carttira of efitie
aquatic organisrs arosts Tt Ta Ficeent 4A
concentrations whieh wis. lover &
scceptadility of these eraanier. af deterained
by organoleptic tests.
PHYSTCAL
A. Asbestos
Asbestos shovld be kept at the sowess practical sevel
and in eny event shou.d be cortreiie4t wo tse extent
necessary te prevent harnful effects of Dotan neasth.
B. Tenneresure
There should be no change in teres tat~r=
adversely affect any locel or a
weters.
that would
Agss ute ef tre
for the protection of equasic life, waters should te
free from sucstances attr ibutatie t: rense:pal,
, industrial of other discharges ret.:tine from Rozen
activity that witl settle to form p.trescert of
otherwise Gbpectionadle slsége depoeits cr thet wiil
alter the valve of Seceni éite cepts ty rore then 10
per cent.
RICROBIOLOGICAL
Waters used for bedy contact recreatior activities
should be substantially free from oacteria, tunel, or
viruses that may produce enteric disorders oF eye, @8f,
note, throat and skin infections or other huzen diseaces
and infections.
RADIOLOGICAL
The level of radioactivity in waters outside of any
defined source control ares should not resclt in @ TEOs6
(total equivalent dose integrated over $6 years a6
calevlated im accordance with the methodology
established the International Coatistion on
Radiological Protection) grester thea } eiblaret to the
whole bods from a daily ingestion of 2.2 litres of lake
water for one year. for dose comnitaents between 1 and 5
cillices at the periphery of the source control ares,
avestigation and corrective action are
recomcenéed if releases are not 8s low a6 reasonadiy
achievetle. For dose commitments greater than 5
millives, the responsible reguletory euthorities shal)
deteraine appropriate corrective action.
1.
Provineia
anes 2
The Perties, in consultation with the State and
canents, ohell take eeasures to define and
Cove
écscribe oll existing yr) fetere limited use tones, and shah
prepere an annvel report on
include:
te)
(>)
these seasures. The sessures shel)
Identification end quantitative ond qualitative
éescriotion of 01) cooee source waste discharges
(including tribeteries) to houndery waters:
Delineation of boundaries for limited use tones
assigned to identified discharges:
Assessnent of the impact of the proposed limited ese
sones on existing and potential beneficial uses: and
Contincing review and revision of the extent of lisste?
use tones to echieve sasinus possible reduction in site
and effect of such sones in accordance with
impcovenents in waste treatment technology.
Livited use rones vithin the boundary waters of the
Great Lakes System shal) be desiqnated foe industria: éiscrarces,
and for punicipsel discharges in excess of 1 #illion gallons ~r
Gay delore Januery 1, 1980, in secordance with the following
principles:
te)
The boundery of @ limited use tone shall not transect
the internations) boundary.
The size, shape and exact location of a linited ute
sone shal) be specified on « case-dy-cese dasis dy the
responsible regulatory sgency. The sise sha.l te
minisised to the qrestest possible degree, being no
Jerger then thet attainable by 21) reasonsdie and
precticable effluent teent es.
A-108
Specific Objectives and conditions spplicedle to the
Ny receiving water tody shal) be cet at the boundery of
(é@)
limited use sones.
Euisting biological chemical, physical and
hydrological conditions shell te defined before
considering the location of a new liaited use sone OF
restricting on eslating one.
Areas of extraordinary naturel resoucce valve shal) not
be desiqnated 36 limited use sores.
Limited ese sones shai) not fore bersiers to eigratory
routes of aquatic be pet re oc jaterfere with Bio.o7.c8
at of species to @
sonately.
use tones shall be assured eisher dy lecatica of the
senes, or by éesigqa of conditions within tne Sones.
Conditions shall not be peraisted within the Litited
use sones wich:
~~
ae
ses. teen:
601-W
(i) ere capidly lethal to ieportent seustic life:
(41) couse iereversible ressonees whic? oraid cesslt in
detcizentel post-excosire effects: cr
result in Bieconcestration of trric Ftatecces
which ere herafwl co tre cresricm cr ate
consuecrs.
tated
(h) Concentrations of tonic substances at ary point 18 the
lirited use sone WOETe Leper se". Species are physically
capadie of residing shall net exceed the 24-hour
L<s0-
(1) Cvery attempt shall be cade to inssre that the tones
ave free from:
(1) ebjectionable deposits:
(44) wnsigntly or deleterious ¢- cats cf flotsaz,
detris, cf), sewe and otter Cleating setter:
substances producirg otrecticratie colcur, odour,
teste or turbidity: aoJ
(tte)
(iv) substances and conditions of comt.rations trereot
et lewels whien peeéduce aquatic life in misence
quantities thet interfere with other uses.
(3) Limited ese tones aey overlap welese the corbined
effects exceed the conditions set forth in other
guidelines.
(k) As @ General condition, lisite? ute sones should rot
overlap with sunicipsl and otter water intakes ora
recreations] sreas. However, knowledge of local
effluent characteristics and effects couté sliow such «
combination of uses.
. Candidate eress for éesignatica os litited use tenes
shall be ceported, in 41} avetledie éetetl, by the resoonsisie
requletory azercies to the Internstions) Joint Comission.
Within 60 deyt, the Commission sey convent the extent of the
eres proposed foe destenetion o6 6 lirited use sone, of any other
@ the etteineent of the Gererel an?
lirited see sone.
witnic 66 deys, on te essured that the Comeiesion egrees wit
the proposed éesiqnation.
‘. Tae Parties mall consult to
Erocedures to Gelineote the extent of
ond to écvelep scientific guide)
Geveloe tore Getinitive
indiveduel litsted use
tones for @cterminine the
easiest porteens of tne wetets each of tre Great
Lakes end connecting channels wey be eccupied by lieited
ete sones.
evtrophicetion prodlens and te prevent
phosphorus in the bountery waters of the
goals of phosprores control are:
2.
ieplement
te)
(e)
(a)
awes}
CONTROL OF PROSPROFUS
The purpose of the followine prosrecs is to einirize
redation with recard to
at Lekes Syste. the
Restoretion ee ay serobie conditions in the
bottos weters the Central Basin of Leake Erie:
Substentiesl reduction ia the present Jevels of aiecsl
bicesss to s level Belew thet of s nuisance condition
in Leake Erie:
Reduction in present levels of algal bierass to telow
that of a nuisance condition in Lake Ontario including
the International Section of the St. Lawrence Fiver:
Maintenance of the oligotrophic state and relative
algal biomass of Lakes Superior ané Huron;
Substantial elizination of slgel suisance growths in
— Michigan to restore it to an oligotrophic state:
e
The elimination of algal avisance in bays and in other
aress wherever they occur.
Tre following programs shell te developed and
ed te reduce input of phosphorus to the Great Lakes:
Construction and operation of municipal waste trestrens
facilities in atl plants discharging sore Wen ore
per éay to achieve, where necessery +o
meet the losding allocations to be developed pursuant
to peregreph ) below, of to sect lecal conditions,
whichever are more stringent, effluent concentrations
of 1.0 willigcee litre total phosphorus seritse for
ants ia the besine of Lekes tier, Michiean, es
ané of 6.3 usecegres per litee total phosphor.s
=— for pleats ia besine of Lakes Onterio a2
e.
Requistion © tatroduction from inédwetris.
discharges (eo the Benimes procticedle extent.
Redection to the sasioum estent precticenle of
ineredeced trem Gif fuse sources inte ~sses
Seren; a04 reduction by 3° f°
ete sere
Reduction of tn howsehelé detergents to 6.5
mecessery to seet the Soogers
te oo
er te sect = K rge nema ere core
° The following table establishes phosohorus loads for
the bese year (1976) and future ehotrhorus Joads, The Parties,
in cooperation with the State and Pevwineial Covernsents, shall
within eighteen months after the ‘3 of entry into force of this
Agreenent confirs the future phosetcrss lesds, and based on these
estadlieh load ellocetions and co “oliance schedules, taking into
eccount the recommendations of the Int«rsational Jcint Comission
acising from the Pollution frer Lend ae Activities Reference.
Until ewok losding sllocations and cotpliance schedules are
estadlished, the Parties agree .o seintein the programs and other
eeasures specified in Annex 2 cf the Great Lakes Weter Quality
Agreement of 1972.
futere
Phosonorus Load
in Retcle Tonnes
1976 Prospl.cr-s
Load in Metric Tones
Basin Per Year Por Year
Leake Superior Mo 3400°
Lake Richigan 4700 $600
Main Leake Huron 200¢ 2800°
Georgian Bey 63° 600°
Korth Channel $50 $20°
Seqinew Bay ae 440r*
Lake Erie 20005 11000**
Leke Ontario 11000 2000°*
® These soomiere would result if 011 sunicips) plents
over one million gellons per day echieved an effluent
of 1 sililigras per litre of phosphorus.
oe These loadings ore required to seat the goals steted in
peregreph 1 above.
DISCHARGES OF OTL AKD HAZARDOUS POLLUTING SUBSTAKCES FAX! VESSELS
1. Definitions. As used in this Annes:
te) tneludes, te net Limited to, ony
spilling, eating, pour ecitting oF
nei it docs direct
éischesges of of Icom 0 properly
(»)
(e)
(4)
te)
2.
adopted f
*waraful quantity of of1° means any quantity of oF}
that, if dischacged from o ship that is stationary into
clear calm water on @ clear day, would produce « fils
or @ sheen upon, of discolouration of, the surface of
the water or adjoining shoreline, of that would cause &
sludge or esulsion to be deposited beneath the surtace
of the water or upon the adjoining shoreline;
*O11° means of} of ony kind or in any fore, including,
but not limited to, petroleum, fve] oj}, of] sludge,
oi] refuse, of] mixed with ballast or bilge water, and
oil mized with wastes other than dredged material;
*Tanker* means any vessel designed for th
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