B-181015, DEC 23, 1974

B-181015: Dec 23, 1974

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SINCE RESOLUTION OF ISSUE OF WHETHER PROJECT IS MAJOR ACTION HAVING SIGNIFICANT EFFECT ON ENVIRONMENT IS PRIMARILY EPA DETERMINATION. WERE PROPER. 2. IS NOT PROPERLY FOR RESOLUTION BY GAO. WHICH FOUND THAT AN ENVIRONMENTAL IMPACT STATEMENT (EIS) WAS NOT REQUIRED FOR THIS GRANT. WAS AWARDED. ARCA CONTENDS THAT THESE GRANTS ARE IN VIOLATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA). HAVE BEEN ISSUED BY EPA. DENIES THAT AN EIS SHOULD HAVE BBEN ISSUED. WHETHER A GOVERNMENT ACTION IS A MAJOR ONE HAVING A SIGNIFICANT EFFECT ON THE HUMAN ENVIRONMENT IS PRIMARILY FOR DETERMINATION BY THE AGENCY CONCERNED OR. WHEN A NEGATIVE DECLARATION IS CHALLENGED. WE DO NOT BELIEVE IT IS APPROPRIATE FOR OUR OFFICE TO CONSIDER THIS SUBSTANTIVE ISSUE.

B-181015, DEC 23, 1974

1. EPA FAILED TO INDICATE COMPLIANCE WITH ITS REGULATIONS IMPLEMENTING NATIONAL ENVIRONMENTAL POLICY ACT, CALLING FOR SPECIFIC DETERMINATION UNDER 40 C.F.R. SEC. 6.52 AS TO WHETHER REGULATIONS WOULD APPLY RETROACTIVELY TO GRANT FOR EXPANSION OF WASTEWATER TREATMENT PLANT AWARDED 4 MONTHS PRIOR TO PROMULGATION OF REGULATIONS AND IT DID NOT SPECIFICALLY WAIVE PUBLIC HEARING REQUIREMENTS; HOWEVER, SINCE RESOLUTION OF ISSUE OF WHETHER PROJECT IS MAJOR ACTION HAVING SIGNIFICANT EFFECT ON ENVIRONMENT IS PRIMARILY EPA DETERMINATION, GAO CANNOT CONCLUDE THAT DISBURSEMENTS UNDER GRANTS, FOR WHICH EPA ISSUED NEGATIVE DECLARATIONS, WERE PROPER. 2. ALLEGATIONS THAT EXPANSION OF WASTEWATER TREATMENT PLANT VIOLATES STATE AND COUNTY ZONING LAWS, AN ISSUE NOW PENDING IN STATE COURT, IS NOT PROPERLY FOR RESOLUTION BY GAO.

ARLINGTON RIDGE CIVIC ASSOCIATION:

BY LETTER DATED APRIL 2, 1974, THE ARLINGTON RIDGE CIVIC ASSOCIATION (ARCA), ARLINGTON, VIRGINIA, PROTESTED THE DISBURSEMENT OF FEDERAL FUNDS TO ARLINGTON COUNTY, VIRGINIA, UNDER GRANTS NOS. C-510357 AND C 510441 BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (EPA) FOR THE EXPANSION AND UPGRADING OF THE ARLINGTON COUNTY WASTEWATER TREATMENT PLANT.

ARLINGTON COUNTY SUBMITTED ITS GRANT APPLICATION FOR THIS PROJECT IN JUNE 1972. EPA AWARDED GRANT NO. C-510357 IN OCTOBER 1972 TO ARLINGTON COUNTY FOR THE FIRST PHASE OF THE PROJECT, THE ADDITION OF GRAVITY FILTERS AND PUMPING FACILITIES. AT THAT TIME, EPA ISSUED A NEGATIVE DECLARATION, WHICH FOUND THAT AN ENVIRONMENTAL IMPACT STATEMENT (EIS) WAS NOT REQUIRED FOR THIS GRANT. IN JUNE 1973, GRANT NO. C-510441, FOR THE SECOND PHASE OF THE EXPANSION PROJECT, THE ADDITION OF LIME TREATMENT, CHLORINATION AND REAERATION FACILITIES AT THE WASTEWATER PLANT, WAS AWARDED, AND EPA AGAIN ISSUED A NEGATIVE DECLARATION.

ARCA CONTENDS THAT THESE GRANTS ARE IN VIOLATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA), 42 U.S.C. 4332(2)(C) (1970), WHICH PROVIDES THAT TO THE FULLEST EXTENT POSSIBLE -

"*** ALL AGENCIES OF THE FEDERAL GOVERNMENT SHALL -

"(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, ***."

ARCA ALLEGES THAT THE PROJECT HAS A SIGNIFICANT EFFECT ON THE ENVIRONMENT AND AN EIS SHOULD, THEREFORE, HAVE BEEN ISSUED BY EPA. EPA, ON THE OTHER HAND, DENIES THAT AN EIS SHOULD HAVE BBEN ISSUED, SINCE IT REGARDS THE PROJECT AS A "RELATIVELY MODEST EXPANSION" OF THE EXISTING WASTEWATER FACILITIES AND ALLEGES THAT NO CONTROVERSIAL ISSUES OR COMMUNITY OPPOSITION REGARDING THE PROJECT HAD ARISEN AT THE TIME OF THE GRANTS.

UNDER THE ABOVE PROVISION OF LAW, WHETHER A GOVERNMENT ACTION IS A MAJOR ONE HAVING A SIGNIFICANT EFFECT ON THE HUMAN ENVIRONMENT IS PRIMARILY FOR DETERMINATION BY THE AGENCY CONCERNED OR, WHEN A NEGATIVE DECLARATION IS CHALLENGED, BY THE COURTS. THEREFORE, WE DO NOT BELIEVE IT IS APPROPRIATE FOR OUR OFFICE TO CONSIDER THIS SUBSTANTIVE ISSUE. HOWEVER, WE DO BELIEVE WE HAVE A ROLE IN INSURING THAT THE OPPORTUNITIES FOR DISCUSSION AND OBJECTION HAVE BEEN PROVIDED. SEE B 178757, JUNE 26, 1973. IN THIS REGARD, ARCA ALLEGES THAT EPA HAS VIOLATED ITS OWN REGULATIONS IMPLEMENTING NEPA PUBLISHED AT 40 C.F.R. PART 6 (1974). ARCA NOTES THAT NO PUBLIC HEARING WAS HELD IN ACCORDANCE WITH 40 C.F.R. SEC. 6.56(B)(1) AND SEC. 6.58. ALSO, ARCA CONTENDS THAT NO "RESPONSIBLE OFFICIAL" OF EPA, AS DEFINED IN 40 C.F.R. SEC. 6.11(G) AND SEC. 6.51(A), APPROVED THE NEGATIVE DECLARATIONS.

EPA, HOWEVER, NOTES THAT ITS REGULATIONS DID NOT BECOME EFFECTIVE UNTIL FEBRUARY 16, 1973, 4 MONTHS AFTER THE INITIAL GRANT AWARD WAS MADE, AND, THEREFORE, WERE NOT APPLICABLE TO THIS PROJECT. EPA ALSO CONTENDS THAT THE TWO SUCCESSFUL BOND REFERENDA IN ARLINGTON COUNTY TO HELP COVER THE COUNTY'S SHARE OF THE PROJECT'S COST WERE DEEMED TO BE SUFFICIENT PUBLIC INPUT, EVEN THOUGH THERE WAS NO REQUIREMENT PRIOR TO FEBRUARY 1973 FOR A FORMAL PUBLIC HEARING REGARDING THE POSSIBLE ENVIRONMENTAL EFFECTS OF THE PROJECT. AFTER THE PROMULGATION OF THESE REGULATIONS, EPA STATES THAT IT CONDUCTED A FURTHER ENVIRONMENTAL REVIEW, WHICH WAS MINIMAL BECAUSE

"*** EPA HAD ATTEMPTED TO CONSIDER THE ENTIRE PROJECT WHEN THE PREVIOUS GRANT APPLICATION WAS REVIEWED AND THIS SUBSEQUENT APPLICATION MERELY REPRESENTED THE SECOND PHASE OF A PROJECT WHICH HAD BEEN REVIEWED SEVERAL MONTHS EARLIER. WHEN THE SECOND GRANT OFFER WAS MADE IN JUNE 1973, AFTER A SECOND SUCCESSFUL BOND REFERENDUM, COMMUNITY OPPOSITION WAS STILL NOT KNOWN; CERTAINLY, CONTROVERSY HAD NOT YET ARISEN."

EPA FURTHER STATES THAT SINCE THE SUMMER OF 1973, IT HAS EXCHANGED CORRESPONDENCE AND HAD SEVERAL MEETINGS WITH ARCA THROUGH WHICH EPA HAS GAINED A THOROUGH UNDERSTANDING OF ARCA'S CLAIMS AND OBJECTIVES, WHICH ACTUALLY ALLOWED ARCA TO HAVE A GREATER INPUT REGARDING THE ENVIRONMENTAL IMPACTS OF THIS PROJECT THAN WOULD HAVE BEEN POSSIBLE UNDER EPA'S CURRENT PUBLIC HEARING REQUIREMENTS.

EPA ALSO STATES THAT THE CHIEF OF THE ENVIRONMENTAL IMPACT BRANCH OF THE AIR AND WATER PROGRAMS DIVISION OF EPA REGION III APPROVED THE NEGATIVE DECLARATION AS DELEGATEE OF THE REGIONAL ADMINISTRATOR, AND, THEREFORE, A "RESPONSIBLE OFFICIAL" DID APPROVE THE NEGATIVE DECLARATIONS. WE BELIEVE THIS SATISFIES THE "RESPONSIBLE OFFICIAL" REQUIREMENTS IN THE CITED EPA REGULATIONS.

HOWEVER, 40 C.F.R. SEC. 6.56(B)(1) AND SEC. 6.58 CLEARLY REQUIRE A PUBLIC HEARING REGARDING ANY POTENTIAL ENVIRONMENTAL IMPACT FOR ALL GRANTS FOR WASTEWATER TREATMENT WORKS AND ASSOCIATED PLANS, WHICH MEET THE CRITERIA SET OUT IN 40 C.F.R. SEC. 6.52, UNLESS THE REGIONAL ADMINISTRATOR SPECIFICALLY WAIVES SUCH REQUIREMENT. 40 C.F.R. SEC. 6.52 STATES IN PERTINENT PART:

"(A) ACTIONS COVERED. THESE GUIDELINES APPLY TO NEW GRANTS FOR WASTEWATER TREATMENT WORKS, TO GRANTS FOR WASTEWATER TREATMENT WORKS THAT WERE AWARDED PRIOR TO THE PROMULGATION OF THESE GUIDELINES AND MEET THE CONDITIONS SPECIFIED IN PARAGRAPH (C) OF THIS SECTION, AND AREAWIDE AND WATER QUALITY MANAGEMENT PLANS.

"(C) RETROACTIVE APPLICATION. (1) THIS SUBPART SHALL BE APPLIED TO ONGOING WASTEWATER TREATMENT WORKS FOR WHICH GRANT AWARDS WERE MADE PRIOR TO THE PROMULGATION OF THESE GUIDELINES WHEN SUBSTANTIAL FUNDS HAVE NOT BEEN RELEASED AND MODIFICATIONS OR ALTERNATIVES TO THE PROJECT ARE STILL AVAILABLE. THE REGIONAL ADMINISTRATOR SHALL ENSURE THAT AN ENVIRONMENTAL IMPACT STATEMENT SHALL BE PREPARED FOR EACH SUCH WORKS FOUND TO HAVE A SIGNIFICANT IMPACT ***."

WE BELIEVE SEC. 6.52 ENVISIONS A SPECIFIC DETERMINATION BY THE REGIONAL ADMINISTRATOR AS TO WHETHER THE EPA REGULATIONS WILL APPLY TO PARTICULAR GRANT AWARDS MADE PRIOR TO THE PROMULGATION OF THE REGULATIONS. HOWEVER, THERE IS NO INDICATION IN THE RECORD BEFORE US THAT THE REGIONAL ADMINISTRATOR OR ANY OTHER RESPONSIBLE OFFICIAL OF EPA MADE ANY DETERMINATIONS PURSUANT TO 40 C.F.R. SEC. 6.52(C), CONCERNING WHETHER SUBSTANTIAL FUNDS HAD BEEN RELEASED OR WHETHER MODIFICATIONS OR ALTERNATIVES TO THE PROJECT WERE AVAILABLE, DESPITE THE FACTS THAT ONLY 4 MONTHS HAD PASSED SINCE THE INITIAL GRANT AWARD AND A NEW GRANT AWARD WAS TO BE MADE WITHIN 5 MONTHS OF THE PROMULGATION OF THE REGULATIONS. WE DO NOT BELIEVE THAT EPA'S FAILURE TO ACT IN THESE CIRCUMSTANCES CAN BE CONSTRUED TO MEAN THAT EPA MADE A DETERMINATION THAT THE REGULATIONS WOULD NOT APPLY.

MOREOVER, THERE IS NO EVIDENCE OF RECORD OF ANY SPECIFIC WAIVER OF THE PUBLIC HEARING REQUIREMENT BY ANY RESPONSIBLE EPA OFFICIAL, AS REQUIRED BY 40 C.F.R. SEC. 6.56(B)(1) AND SEC. 6.58 IF THESE EPA REGULATIONS APPLY TO THE PROJECT HERE IN QUESTION. WE DO NOT BELIEVE THAT THE ARLINGTON COUNTY BOND REFERENDA CAN BE CONSIDERED TO BE SUBSTANTIAL COMPLIANCE WITH THE PUBLIC HEARING REQUIREMENTS, SINCE THESE REFERENDA DO NOT NECESSARILY GIVE THE OPPORTUNITY FOR DISCUSSION OF THE ENVIRONMENTAL EFFECTS OF THE WASTEWATER TREATMENT PLANT, POSSIBLE ALTERNATIVES, AND THE NEED FOR AN EIS. FOR THESE SAME REASONS, EPA'S DISCUSSIONS WITH ARCA DO NOT SATISFY THE PUBLIC HEARING REQUIREMENTS. ALSO, THESE DISCUSSIONS WOULD NOT ALLOW ALL INTERESTED PARTIES TO BE HEARD REGARDING THE ENVIRONMENTAL EFFECTS OF THE PROJECT. MOREOVER, THESE DISCUSSIONS HAD NO EFFECT WHATSOEVER ON THE ENVIRONMENTAL ASSESSMENTS OF THE PROJECT, AS INTENDED BY THE PUBLIC HEARING REQUIREMENTS, SINCE THE NEGATIVE DECLARATIONS HAD BEEN ISSUED SOME MONTHS BEFORE.

WHETHER THIS PROJECT HAS A SIGNIFICANT IMPACT ON THE ENVIRONMENT IS FOR DETERMINATION BY EPA OR BY THE COURTS. WE ARE NOT IN A POSITION TO SAY THAT THE DISBURSEMENTS UNDER THESE GRANTS WERE IMPROPER. HOWEVER, WE ARE BRINGING TO THE ATTENTION OF THE ADMINISTRATOR OF EPA BY LETTER OF TODAY THE ABSENCE OF ANY INDICATION OF COMPLIANCE WITH THE CITED REGULATORY REQUIREMENTS. FURTHERMORE, THE ADMINISTRATOR HAS STATED THAT ALL FUTURE ACTIONS CONCERNING THIS PROJECT WILL BE TAKEN IN A MANNER DESIGNED TO MAXIMIZE PUBLIC PARTICIPATION.

FINALLY, ARCA CONTENDS THAT THE FACILITY EXPANSION VIOLATES THE ARLINGTON COUNTY AND VIRGINIA ZONING LAWS AND, THEREFORE, VIOLATES 40 C.F.R. SEC. 35.840(E) AND SEC. 35.935-4 (1974), WHICH GENERALLY REQUIRE THAT THE CONSTRUCTION OF THE PROJECT COMPLY WITH STATE AND LOCAL LAWS. HOWEVER, WHETHER THIS PROJECT VIOLATED COUNTY AND STATE ZONING LAWS IS INAOPROPRIATE FOR RESOLUTION BY THE GENERAL ACCOUNTING OFFICE. IN ANY CASE, THIS PARTICULAR ISSUE IS CURRENTLY BEFORE A STATE COURT OF COMPETENT JURISDICTION.