Conservation Law Foundation, Inc. v. Busey

• Decision Date: 07 June 1995
• Docket Number: 95-1019,92-1464,95-1020,95-1047 and 95-1048,Nos. 92-1335,s. 92-1335
• Citation: 79 F.3d 1250,157 A.L.R. Fed. 697
• Parties: , 26 Envtl. L. Rep. 20,959 CONSERVATION LAW FOUNDATION, INC., Petitioner, v. James BUSEY, Administrator, Federal Aviation Administration, et al., Respondents. TOWN OF NEWINGTON, NEW HAMPSHIRE, Petitioner, v. DEPARTMENT OF TRANSPORTATION, et al., Respondents. CONSERVATION LAW FOUNDATION, INC., Plaintiff-Appellant, v. DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees. TOWN OF NEWINGTON, NEW HAMPSHIRE, Plaintiff-Appellant, v. DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees. CONSERVATION LAW FOUNDATION, INC., and Town of Newington, New Hampshire, Plaintiffs-Appellees, v. DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees. State of New Hampshire, and Pease Development Authority, Defendants-Appellants. CONSERVATION LAW FOUNDATION, INC., Plaintiff-Appellee, v. DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1250

79 F.3d 1250

42 ERC 1385, 26 Envtl. L. Rep. 20,959

CONSERVATION LAW FOUNDATION, INC., Petitioner, v.James BUSEY, Administrator, Federal Aviation Administration,

et al., Respondents.

TOWN OF NEWINGTON, NEW HAMPSHIRE, Petitioner, v.DEPARTMENT OF TRANSPORTATION, et al., Respondents.

CONSERVATION LAW FOUNDATION, INC., Plaintiff-Appellant, v.DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees.

TOWN OF NEWINGTON, NEW HAMPSHIRE, Plaintiff-Appellant, v.DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees.

CONSERVATION LAW FOUNDATION, INC., and Town of Newington,New Hampshire, Plaintiffs-Appellees, v.DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellees.

State of New Hampshire, and Pease Development Authority,

Defendants-Appellants.

CONSERVATION LAW FOUNDATION, INC., Plaintiff-Appellee, v.DEPARTMENT OF the AIR FORCE, et al., Defendants-Appellants.

Nos. 92-1335, 92-1464, 95-1019, 95-1020, 95-1047 and 95-1048.

United States Court of Appeals First Circuit.

Heard June 7, 1995.

Decided April 2, 1996.

Appeals from the United States District Court for the District of New Hampshire[Martin F. Loughlin, Senior District Judge].

Lewis M. Milford, Boston, MA, with whom Mark A. Sinclair, Waterbury, VT, Robert A. Backus and Backus, Meyer & Soloman, Manchester, NH, were on brief for Conservation Law Foundation.

Perry M. Rosen, with whom Dana C. Nifosi, Cutler & Stanfield, Washington, DC, Malcolm R. McNeill, Jr. and McNeill & Taylor, P.A., Dover, NH, were on brief for Town of Newington, New Hampshire.

Jeffrey P. Kehne, Attorney, Environment & Natural Resources Division, U.S. Department of Justice, with whom Lois J. Schiffer, Assistant Attorney General, Beverly Sherman Nash, Richard Sarver, Edward J. Shawaker, Attorneys, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC, Douglas J. Heady, Office of the General Counsel, Department of the Air Force, Alexandria, VA, Daphne A. Fuller, Attorney, Office of the Chief Counsel, Federal Aviation Administration, New York City, and John R. Michaud, Office of General Counsel, U.S. Environmental Protection Agency, Portland, ME, were on brief for the federal parties.

Donald W. Stever, with whom Jeffrey R. Howard, Attorney General, Steven M. Houran, Deputy Attorney General, Office of the Attorney General, Environmental Protection Bureau, and Dewey Ballantine, Washington, DC, were on brief for State of New Hampshire and Pease Development Authority.

Before SELYA and CYR, Circuit Judges, and SCHWARZER, ^*Senior District Judge.

ON PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL AVIATION

ADMINISTRATION

SCHWARZER, Senior District Judge.

We must decide whether defendants have complied with various federal environmental laws that apply to the conversion of land on Pease Air Force Base (Pease) in New Hampshire to civilian use incident to the base's closure.The United States Air Force entered into a long-term lease of a portion of the base to Pease Development Authority (PDA).Concerned about the resulting effects on the clean up of hazardous wastes on the base and the air quality in the area, the Conservation Law Foundation (CLF) and the Town of Newington, New Hampshire (Newington) challenge the Air Force's decision to lease the property and the support of that decision by other federal agencies.CLF and Newington contend that the Air Force and the Environmental Protection Agency(EPA) violated section 176(c) of the Clean Air Act(CAA), 42 U.S.C. § 7506(c)(Supp. III 1991),section 102(2)(C) of the National Environmental Policy Act (NEPA),42 U.S.C. § 4332(2)(C)(1988), andsection 120(h)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9620(h)(3)(1988).PDA, the State of New Hampshire, and several other interested parties have intervened and, along with the Air Force and the EPA, oppose the relief sought.

In a lengthy opinion ruling on the parties' cross-motions for summary judgment, the district court found that the Air Force had violated NEPAandCERCLA and directed it to submit a Supplemental Final Environmental Impact Statement (Supplemental FEIS), including a remedial design for contaminated parcels covered by the lease.The district court denied injunctive relief, however, and dismissed all remaining claims.Conservation Law Found. v. Department of the Air Force, 864 F.Supp. 265(D.N.H.1994).

Plaintiffs have appealed from the dismissal of their CAA claims and the denial of injunctive relief.The federal defendants have cross-appealed from the finding that they violated CERCLA, but have not appealed the district court's order directing them to prepare a Supplemental FEIS.We have appellate jurisdiction under 28 U.S.C. § 1291.We reverse the judgment in so far as it found a CERCLA violation but affirm in all other respects.

Also before us are petitions filed by CLF and Newington to review an order of the Federal Aviation Administration (FAA) approving PDA's airport development plan.We have jurisdiction under 49 U.S.C. app. § 1486(a) and deny the petitions with respect to the CAA claim and retain jurisdiction of the NEPA claim pending completion of the Supplemental FEIS.

I.BACKGROUND FACTS

Acting under the Base Closure and Realignment Act of 1988 (the Base Closure Act), Pub.L. No. 100-526,102 Stat. 2627(1988)(codified as amended at 10 U.S.C. § 2687(1988 & Supp. V 1993)), the Air Force closed Pease in March 1991.Located adjacent to Newington and Portsmouth, New Hampshire, the base occupies some 4,200 acres and comprises extensive facilities that supported Air Force operations, including a runway.PDA was created as an agency of the State of New Hampshire to acquire certain parcels of land within the base and to develop and implement a plan for their reuse.It ultimately developed a plan envisioning a commercial airport, light industry, various commercial uses, retail space, and open space.

In preparation for the transfer of land to PDA, the Air Force in February 1990 launched the process of complying with applicable environmental requirements.The details of the process are set out at length in the district court's opinion, see864 F.Supp. at 270-72, and a summary will suffice here.In February 1991, the Air Force published a Draft Environmental Impact Statement (DEIS) on which CLF and the EPA submitted comments mainly addressing air quality concerns.In April 1991, the Air Force entered into a Federal Facility Agreement (FFA) with the EPA and the State of New Hampshire spelling out its environmental obligations incident to the transfer.In June 1991, the Air Force prepared a Final Environmental Impact Statement (FEIS).The FEIS stated that, although development under the plan, including the increased traffic it would generate, would not result in violations of state or federal air quality standards, it would have an impact on New Hampshire's ability to achieve the ozone precursor reductions required by the CAA.To resolve these air quality concerns, PDA, the EPA, and the New Hampshire Department of Environmental Services(NHDES) on August 1, 1991, entered into a Memorandum of Understanding (MOU).The EPA then issued its comments on the FEIS, stating that while the project would reduce New Hampshire's ability to achieve compliance with the CAA, the MOU provided a framework for compliance.

As required by the Base Closure Act, the Air Force then prepared its initial Record of Decision (ROD), documenting its decisions regarding the closure of Pease and the disposition of the property.The ROD addressed, among other things, environmental issues, including the CAA's requirement that the project conform with the New Hampshire State Implementation Plan(SIP) and CERCLA's requirement that the Air Force undertake certain remedial measures to clean up contaminated sites prior to the transfer of those sites to PDA.See42 U.S.C. § 7506(c)(1);42 U.S.C. § 9620(h)(3).

Because the PDA plan contemplated civilian airport operations, FAA approval was required under the Surplus Property Act of 1944, 50 U.S.C. app. § 1622(g)(1988)(subsequently recodified at 49 U.S.C. §§ 47151-47153(Supp.1994)).In February 1992, the FAA issued an ROD approving elements of the plan and recommending that the Air Force proceed with its proposed transfer of property to PDA.

In March 1992, CLF filed this action in the district court, alleging that the Air Force and the EPA had violated the CAA and NEPA.In June 1992, Newington filed its action asserting the same claims, as well as a claim under CERCLA.These actions were later consolidated.CLF and Newington also filed petitions in this court for review of the FAA's February 1992 ROD, alleging that the FAA violated NEPA and the CAA.The petitions were stayed pending the outcome of the district court proceedings and are now before us along with the appeals from the judgment below.

While these actions were pending, the Air Force continued to pursue the administrative proceedings preparatory to the transfer.In March 1992, it issued a Memorandum for the Record updating its earlier conformity determination.In April 1992, it issued a Supplemental ROD in which it rendered its final determination concerning the disposal of the Pease parcels, including an acknowledgment that remedial action on contaminated areas had to be completed before it could transfer those parcels by deed.The Air Force then prepared a Preliminary Environmental Survey and, on the basis of the survey, issued its Finding of No Significant Impact (FONSI).In April 1992, the Air Force entered into a 55-year lease and contract of conveyance to PDA covering these parcels.

II.SCOPE OF REVIEW

We review de novo the district court's grant of summary judgment, Town of Norfolk v. United States Army Corps of Eng'rs, 968 F.2d 1438, 1445(1st Cir.1992), as well as its interpretation of the controlling statutes, United Technologies v. Browning Ferris Indus., 33 F.3d 96, 98(1st Cir.1994), ...