ELR Citation: ELR 20435
No(s). CV-92-156-L (D.N.H. Aug 29, 1994)

The court holds that the U.S. Air Force complied with the conformity requirements of Clean Air Act (CAA) §176(c) when it approved the transfer and redevelopment of Pease Air Force Base in New Hampshire, but violated the National Environmental Policy Act (NEPA) by failing to discuss adequately in the final environmental impact statement (EIS) the project's conformity to the CAA. The court first dismisses plaintiff environmental group's claims that the Air Force violated CAA §176(c)(1) by supporting a project that failed to conform to the purpose of the New Hampshire and Maine state implementation plans (SIPs), that an increase in the severity and frequency in violations of the carbon monoxide (CO) standard violates the purpose of the New Hampshire SIP, and that the Air Force violated the conformity provision of the CAA by proposing mitigation measures that essentially exempt the Air Force from compliance with the CAA. In order to state a claim under the CAA, the group must allege that the project would violate a specific provision of either SIP; it is insufficient merely to allege a violation of the purpose of the SIPs. The court next dismisses plaintiff municipality's claim that the project would violate both the New Hampshire and Maine SIPs, because the municipality failed to assert the violation of a specific provision of either SIP. The court next holds that there is ample evidence in the record demonstrating that the U.S. Environmental Protection Agency (EPA) made conformity findings as required by §176(c)(1). The court next holds that the procedures the Air Force followed in issuing its conformity determination satisfy the CAA's procedural requirements. The court upholds the Air Force's interpretation of §176(c)(1)(B)(ii) and (iii) as not requiring the Air Force to make conformity determinations regarding Maine's SIP. The statutory language is ambiguous and there were no EPA conformity regulations available for guidance when the Air Force was formulating its conformity determination. The court also holds that the Air Force was not required to make a final conformity determination before approving the project.

Turning to the group's substantive challenges to the Air Force's conformity determination, the court holds that the Air Force satisfied the requirements of §176(c)(1)(A) and (B). The Air Force was only required to determine that the proposed activity conforms to the terms of the existing SIP and the record amply demonstrates that the project is in conformity with the existing SIP. The record also supports the Air Force's conclusion that the project will conform to the national ambient air quality standard (NAAQS) for ozone, and that the project will result in no new NAAQS violations. Thus, the Air Force's conformity determination as to ozone levels was not arbitrary or capricious. The court next holds that the Air Force's conformity determination with regard to CO levels is reasonable. A 1991 CO analysis revealed that construction of a new interchange would bring the project into compliance through the year 2000, and an EPA memorandum of understanding (MOU) incorporated into an Air Force record of decision (ROD) contains several measures designed to ensure compliance with the CO NAAQS after the year 2000. The court upholds the Air Force's use of the MOU as a mitigation measure for the project's air emissions. The court also holds that the Air Force did not impermissibly delegate its statutory conformity responsibility by leaving the accountability for future emission levels to the SIP process, because the CAA's plain language relegates this responsibility to SIPs. The court holds that the Air Force did not impermissibly minimize the project's scale in order to ensure its compliance with the CAA. Without discussion, the court grants summary judgment to defendants on plaintiffs' remaining CAA claims.

The court next holds that the 1988 Base Closure and Realignment Act, 10 U.S.C. §2687, does not bar plaintiffs' NEPA claims. The Act's 60-day limit for filing NEPA claims expressly applies to those challenges made during the process of closing or relocating a base. Plaintiffs are challenging actions by the Air Force that took place well after the decision to close the base. Moreover, the legislative history indicates that the 60-day limit was established to frustrate attempts to use NEPA as a means to delay base closures, not to prohibit challenges to environmental decisions made after the closure and realignment of the base. Plaintiffs are using NEPA to challenge the EIS process, not to dispute the decision to close the base. The court next holds that the Air Force violated NEPA's public disclosure requirements by failing to discuss the project's CAA conformity in the final EIS. Because the conformity decisions were made after the EIS process, they were never subject to public comment. Moreover, the Air Force should have prepared a final supplemental EIS, because its conclusion in the EIS that the project would impact New Hampshire's ability to comply with the CAA conflicted with information in the ROD and the MOU indicating that the project would comply with the CAA. The court holds that the Air Force violated NEPA by failing to include a discussion of the 1991 CO analysis in the EIS or to issue a supplemental EIS including the CO analysis. The court next holds that the Air Force was not required to discuss in the final EIS the project's impact on Maine's ability to comply with the CAA, because the Air Force was not required to make a conformity determination for Maine. The court holds that the final EIS is inadequate because it failed to address the project's air quality impact on Maine. The Air Force had prior notice that the group considered this to be a significant issue and the plain language of NEPA and its implementing regulations mandate a broader analysis than that contained in the final EIS. The court next holds that the final EIS is inadequate because it failed to analyze properly the various mitigation measures regarding the development and reuse of the base. Although the Air Force had notice that both EPA and the group considered air quality to be a concern, the EIS essentially failed to evaluate any mitigation alternatives. Moreover, the Air Force's role as transferor of the base does not relieve it of its responsibility to address the environmental impact of subsequent redevelopment. The court holds that the Air Force's failure to include in the final EIS information on CAA conformity and to issue a final supplemental EIS was unreasonable under the circumstances. The Air Force concluded in the EIS that the project would likely impact New Hampshire's ability to comply with the CAA, but later determined in the ROD that the project would in fact conform based on information that was not disclosed to the public. Also, EPA concluded in its comments on the final EIS that the Air Force violated NEPA's disclosure requirements by failing to include its CAA conformity findings in the EIS. The court next holds that the Air Force's exclusion from the final EIS of any meaningful wetlands analysis was unreasonable under the circumstances. Executive Order No. 11990 and NEPA's implementing regulations mandate a thorough examination of the environmental impact of the development of wetlands and a discussion of mitigation alternatives.

The court next holds that the Air Force violated CERCLA §120(h)(3) by transferring contaminated property via a long-term lease without having in place an approved remedial program for the site. The court holds that the Air Force violated NEPA's public disclosure provisions by failing to include in the final EIS the decision to transfer the parcels via a long-term lease as opposed to deed. The court denies the group's request for an injunction voiding the property transfer, but directs the Air Force to prepare a supplemental EIS to address the remedial program issue. The court also directs the Air Force to complete a supplemental EIS addressing the CAA and wetlands issues it failed to discuss properly in the final EIS.

Counsel for Petitioner
Robert A. Backus
Backus, Meyer, Solomon & Rood
116 Lowell St., P.O. Box 516, Manchester NH 03105
(603) 668-7272

Lewis M. Milford
Conservation Law Foundation
21 E. State St., Montpelier VT 05602
(802) 223-5992

Counsel for Respondent
Craig D. Galli
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000