Executive Order Concerning Environmental Pollution from Federal Facilities

On December 17, 1973, President Nixon issued Executive Order 11752¹ concerning the prevention, control, and abatement of environmental pollution at federal facilities. The Order supersedes Executive Order 11507² which was issued February 4, 1970, and dealt only with standards adopted pursuant to the Clean Air Act and the Federal Water Pollution Control Act. Executive Order 11752 directs all federal agency heads to ensure that all facilities under their jurisdiction are designed, constructed, managed, operated, and maintained so as to conform to the following requirements: air quality standards and emissions limitations under the Clean Air Act; water quality standards and effluent limitations under the Federal Water Pollution Control Act (FWPCA); ocean dumping regulations pursuant to the Marine Protection, Research, and Sanctuaries Act of 1972 and the FWPCA; guidelines for solid waste recovery and disposal systems under the Solid Waste Disposal Act; noise emissions standards under the Noise Control Act of 1972; radiation standards under the Atomic Energy Act; and pesticide regulations pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act and the Federal Environmental Pesticide Control Act of 1972. The new executive order thus updates the regulatory framework to conform to the present administrative and legislative structure without presenting any substantive change in executive environmental policy.

Under the terms of the order, agency heads are to present to the Director of the Office of Management and Budget (OMB) an annual plan for improvements necessary to bring existing facilities into compliance with the Order, and to include in all budget requests for construction of new facilities or for modifications of existing facilities funds for measures necessary for compliance. The environmental impact of each new facility or modification to an existing one must be considered in accordance with the requirements of NEPA. In addition, agency heads are to ensure that any funds appropriated for pollution control are not used for any other purpose unless permitted by law and specifically approved by OMB. Where activities are carried out at federal facilities which are leased to non-federal parties, the appropriate agency head may require the lessee to accept full responsibility for complying with the standards listed in the Order.

The earlier executive order delegated certain consultation and review functions to the Secretaries of Interior and HEW since EPA had not yet been formed at the time the Order was issued. Under Executive Order 11752, the EPA Administrator assumes these functions in altered form. He must provide technical assistance to federal agency heads and review compliance by federal facilities with the standards specified in the Order. The Administrator must also provide liaison for the coordination of pollution control programs between federal and state, interstate, and local agencies, and, in addition, mediate conflicts between these agencies concerning the application of standards. He must develop, in consultation with heads of other federal agencies, a coordinated strategy for compliance with the Order, and issue the necessary regulations and guidelines to implement this strategy.

Executive Order 11752 introduces a new provision into the procedure already established for exempting particular federal facilities from compliance with pollution standards. Such exemptions may be made by agency heads after consultation with the Administrator in the interest of national security or in extraordinary cases in which it is in the paramount interest of the U.S. Under the provisions of Executive Order 11752, no such exemption may be made if it is impermissible under applicable federal law, or if the Administrator does not agree that the exemption should be granted. The Administrator's disagreement, however, may be overruled by the Director of OMB's approval of the exemption.

The Order also provides that, with regard to federal facilities outside the United States, the appropriate agency heads must assure that such facilities are constructed and operated so as to comply with the environmental pollution standards of general applicability in the host country.

1. 38 Fed. Reg. 34793 (Dec. 19, 1973), 4 ELR 45017

2. 4 ELR 45001.