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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